Obamacare scored a huge victory today. Not because of an election or an impassioned debate. Not because of a fresh argument or a political compromise. Not even because of a considered legal opinion. No, Obamacare scored a major victory just because the Fourth Circuit panel randomly chosen to hear the challenge to Obamacare, an appeal spearheaded by crusading Virginia attorney general Ken Cuccinelli, will be made up of three judges appointed by Democratic presidents.
And because we live in a country where our judiciary is about as apolitical as a parliamentary house, it’s reasonable to think that at least two of the three judges (two of whom were appointed by Obama himself) will deliver an Obamacare victory.
Does anybody have a problem with that?
The WSJ Law Blog neatly sums up why the lineup of judges is so daunting for opponents of Obamacare:
[A]ll three of the judges randomly chosen to sit on the panel were appointed by Democratic presidents.
Ordinarily, such a development wouldn’t necessarily mean anything. But given the track record with this issue — specifically, whether Congress possesses the constitutional power to mandate everyone to own health insurance — it’s hard not to think that the Justice Department won’t get at least two of the three votes. Even worse for the challengers: two of the three were appointed by President Obama himself.
See, like so many hot-button issues that get kicked into our court system, the constitutionality of Obamacare has little to do with the law and much to do with politics. An apolitical judiciary is a myth. And the fiction of a judiciary more concerned about law than politics is laid bare in a situation like this, where simply by dint of who appointed the judges we’re all pretty sure how this case will turn out.
And I’ll take it one step further. It’s not just that “Democratic” judges believe in expansive grants of federal power while “Republican” judges believe in a more limited role for the central authority. So-called conservative judges are more than happy to ratchet up centralized power when, say, an individual state tries to regulate guns in a way that makes sense to the local leaders. And would-be liberal jurists never get more progressive than when they are limiting federal purview over moral issues. These are political distinctions, not legal ones.
If a Republican president came up with a massive health reform act that “forced” individual citizens to purchase a services from Big Insurance, conservatives would support it, liberals would balk, and their judges would fall in line.
That’s our system, and I don’t really have a problem with it. We’ve got to resolve these differences one way or another, and punting the decision to unelected judges seems marginally better than taking it to the streets. I just think we should understand the system we have.
I just think we should all understand that when Justice Anthony Kennedy tells us what kind of health care system we’re allowed to have, he will be giving us his political opinion in the language of whatever legal precedents he decides to use to support his personal belief.
Just like these three judges appointed by Democrats are about to give the Cooch a kidney punch.