Sixth Circuit Judge Jeffrey Sutton

The United States Court of Appeals for the Sixth Circuit announced yesterday that Judges Boyce F. Martin, Jr., Jeffrey S. Sutton, and James L. Graham will hear a conservative law firm’s appeal challenging the landmark Affordable Care Act. As numerous commentators have noted, the outcome of these cases has so-far been determined more by the partisan affiliation of the judges hearing the case than by the Constitution and precedent, which unambiguously establishes that the ACA is constitutional. Sadly, Judge Sutton’s presence on this panel is likely to enhance the perception that federal judges are placing politics before the law.

In 2008, just weeks before the presidential election, the Ohio Republican Party sued the state seeking to prevent as many as 200,000 registered voters from having their votes counted. Judge Sutton wrote an opinion that siding with the state GOP.

Three days later, the Supreme Court unanimously reversed Sutton in a rare two-page order. That very brief order rested largely on a 2001 decision called Alexander v. Sandoval — and the attorney who successfully convinced the Supreme Court to decide Sandoval the way it did was none other than Jeffrey Sutton.

Indeed, before Sutton became a judge, Sutton was one of the nation’s leading advocates for conservative states-rights positions and for cutting off ordinary Americans’ access to courts. Sutton devoted much of his career to preventing people with disabilities, religious minorities and even children who are illegally deprived of Medicaid coverage from holding states accountable in federal court. Sutton also served as an officer in the conservative Federalist Society’s Federalism and Separation of Powers practice group.

Yet when the State of Ohio claimed the right to conduct its own elections, Sutton not only abandoned his commitment to states-rights in order to side with the Ohio Republican Party, he defied a Supreme Court decision that he himself won before the Supreme Court. It is simply unimaginable that Sutton was unaware of the Sandoval decision when he chose to ignore it in the Ohio GOP’s lawsuit.

Hopefully, Sutton will show more loyalty to the law and less to his political party when he hears the upcoming challenge to the Affordable Care Act. The federal judiciary’s legitimacy depends on judges who follow the law even when their own personal views or political interests conflict with it, and that legitimacy cannot afford another blow like the one Sutton dealt in the Ohio Republican Party’s case.

Sen. Pat Toomey (R-PA) released a budget proposal yesterday afternoon that would lower federal spending to 18.5 percent of gross domestic product and reduce federal debt to 52 percent of GDP by 2021. The proposal, however, does not significantly reform Medicare, handing a rebuke to Republican efforts in the House to privatize the program. At a press conference unveiling the document Toomey insisted that he would vote for the House budget — offered by Budget Committee Chairman Paul Ryan (R-WI) — if it came to the Senate floor, but said that his proposal focused on balancing the budget over the short-term. “The focus of this budget is to demonstrate that we can reach a balance in 10 years, in part to buy us the time for the structural reforms that these other programs will need,” he said.

Still, Toomey may be doing more to Medicare than he lets on. Republicans have stressed that the proposal would not cut the program — in fact it would increase funding thanks to a provision that would address the Sustainable Growth Rate (SGR) — but as The Hill’s Julian Pecquet has written, this would mean that the $500 billion in cuts from the Affordable Care Act would remain in place. The GOP has repeatedly condemned these cuts throughout the health care reform debate, despite voting for them as part of Paul Ryan’s budget. During the 2010 election, Toomey even ran ads against Democratic challenger Joe Sestak for supporting reductions to the Medicare program. A press release accompanying the ad included the following facts about Sestak’s record:

- The health care bill includes $500 billion in Medicare cuts over the next decade (CBSNews.com, 03/21/10).

- The health care bill will “slice an additional $60 billion from Medicare, with the privately run program known as Medicare Advantage targeted for particularly deep cuts, bringing the total reduction in projected spending on the program to more than $500 billion over the next decade” (The Washington Post, 03/19/10).

Watch the ad:

Toomey has been a long time supporter of entitlement reform — i.e. making cuts to the Medicare program — and has accused President Obama of failing to lead on the issue. “To make matters worse, the president’s budget increases taxes and completely ignores the drivers of the country’s deficit problem—the entitlement programs. As we approach the statutory federal debt limit, it’s unfortunate that the president wants Congress to increase it without any budget reforms,” Toomey said.