Now that four Courts of Appeal are considering whether the landmark Affordable Care Act is constitutional, the many trial courts faced with this question have faded into the background. Nevertheless, dozens of Republican state officials and conservative individuals and interest groups have filed lawsuits seeking to strike down the law and these lawsuits remain pending in multiple federal district courts.
Today, George W. Bush appointee Judge Christopher Conner will hear oral arguments in Goudy-Bachman v. HHS, one of these many remaining cases. Ominously, Conner denied the Department of Justice’s request to dismiss the case as the earliest possible stage last January — and two of the district judges who denied such a motion went on to strike down the law.
Additionally, there is reason to worry about Conner’s partisan connections. Prior to his appointment by Bush, Conner made a max dollar donation to Bush’s presidential campaign, and he also contributed generously to former Sen. Rick Santorum and to various GOP campaign committees.
Hopefully, however, Conner will be able to put aside his partisan stake in this case and acknowledge the basic fact that the plaintiffs challenging the Affordable Care Act have no case. Moreover, while Conner may have denied DOJ’s motion to dismiss in January, a lot has happened since then. Most importantly, Judge Jeffrey Sutton — a former clerk to conservative Justice Antonin Scalia, and a leader of the conservative states rights movement — recently joined the first Court of Appeals decision to reject a challenge to the ACA. The law hasn’t changed one bit since Sutton rejected this utterly meritless lawsuit, so Conner has an obligation to place the Constitution ahead of party and follow Sutton’s lead.