A leading Republican attorney made a surprising admission at a legal conference this weekend, revealing a key element of the strategy he and many of his fellow Republican lawyers have used in order to lend credibility to lawsuits challenging Obama administration policies. The law’s supporters have long suspected the lawyers who challenged the Affordable Care Act of intentionally maneuvering to bring the case before a very conservative judge who was inclined to support their agenda. One of those lawyers helped feed those suspicions last Friday.
Before there was King v. Burwell, the lawsuit asking the Supreme Court to gut the Affordable Care Act by ignoring much of the law’s explicit language, there was NFIB v. Sebelius, the constitutional lawsuit asking the Supreme Court to repeal Obamacare in its entirety based on a legal argument one conservative judge criticized for having no support “in either the text of the Constitution or Supreme Court precedent.” More than 85 percent of legal experts polled by the American Bar Association in the lead up to arguments in the NFIB case predicted that the law would be upheld. And yet the Supreme Court came within an inch of striking down the entire law.
As Yale’s Jack Balkin wrote shortly before NFIB was decided, “[t]hree years ago, the idea that the Act’s mandate to purchase health insurance might be unconstitutional was, in the view of most legal professionals and academics, simply crazy.” And, yet, the law’s opponents successfully put this “off the wall” legal claim “on the wall.” What made this happen, according to Balkin, was a full-court press by Republican professors, politicians, PR flacks and media outlets like Fox News, all of whom spent two years convincing the public that a “simply crazy” legal argument was actually valid.
Balkin adds that “[a]ll of this would have been for naught,” however, without sympathetic judges willing to validate these “off the wall” legal arguments within the judiciary. Which brings us back to the Republican attorney’s surprising admission this past weekend.
David Rivkin served in various roles in the Reagan and Bush I administrations. He was also the lead outside trial counsel in the NFIB litigation. On Friday, he was the conservative rebuttal speaker at a panel sponsored by the liberal American Constitution Society (ACS). Though the topic of the panel was the legal challenges to the Obama administration’s immigration policies, the discussion briefly veered onto Rivkin’s legal strategy when he filed the lawsuit that became NFIB v. Sebelius.
“We as lawyers know there’s nothing wrong with venue selection,” Rivkin told the audience. “You do research. You look at a good bench. We’ve done the same thing when we litigated the first challenge to Obamacare. Everybody does it.”
“Venue selection” refers to a common practice used by lawyers seeking to ensure that their case is litigated before a friendly judge. Federal law often gives plaintiffs discretion to choose which federal judicial district they wish to file their lawsuit in, and some federal districts are also divided up into multiple smaller geographic “divisions” housed at different courthouses throughout the district. Rivkin’s legal team chose the Pensacola division of the Northern District of Florida, a division presided over by three Republican-appointed judges, as the venue to bring their lawsuit.
This decision to file in Pensacola was itself unusual. Though Rivkin was one of the outside lawyers recruited by the law’s opponents, much of the litigation was driven by then-Florida Attorney General Bill McCollum (R), whose office was located just a few blocks from a different Northern District of Florida courthouse in Tallahassee. In other words, rather than walk a few blocks to the nearest federal courthouse, McCollum and Rivkin’s legal team drove nearly 200 miles to file their case at a courthouse containing only Republican-appointed judges.
After the ACS panel concluded, I approached Rivkin and asked him why his legal team made this decision to litigate in a remote location. Once he was confronted by a reporter about his legal strategy, he attempted to downplay the role that the political affiliation of the Pensacola judges played in his legal team’s choice of venue, instead claiming this decision was motivated by the fact that the Pensacola division “does not have as heavy a caseload” as the Tallahassee division.
This claim that the lawsuit was shipped to Pensacola out of efficiency concerns, however, is contradicted by other reporting on the legal strategy behind NFIB. As law professor Josh Blackman reported in Unprecedented: The Constitutional Challenge to Obamacare, a comprehensive account of how this lawsuit developed, “Attorney General McCollum decided against filing in Tallahassee because he and his staff had grown ‘very frustrated’ with that court’s chief judge, Robert Lewis Hinkle, who was appointed by President Clinton in 1996.” Hinkle’s chambers are in Tallahassee.
NFIB was ultimately assigned to Judge Roger Vinson, a staunch conservative who became the only lower court judge in the country to hold that the entire Affordable Care Act should be repealed. Shortly after his decision came down, my colleagues Neera Tanden, Tony Carrk and I combed through the opinion and uncovered 40 legal and factual errors. In one example, Vinson claimed that “[t]t was not until 1887, one hundred years after ratification, that Congress first exercised its power to affirmatively and positively regulate commerce among the states,” when, in fact, this power was first used in a law enacted by the first Congress and signed by President George Washington.
It should be noted, moreover, that Rivkin was correct when he said that this practice of searching for a venue where plaintiffs attorneys will find a “good bench” is quite common. The reason this subject came up in a panel about immigration is because lawyers challenging the Obama administration’s immigration policies are widely suspected of playing a similar game in order to rig the trial court’s decision in their favor.
Only one active district judge, Judge Andrew Hanen, sits in the Brownsville Division of the Southern District of Texas, which is inconveniently located at the southern-most tip of the state (a Clinton-appointed district judge, who is partially retired, also sits in Brownsville). Hanen has a history of statements hostile towards a more welcoming immigration policy. After a major challenge to the Obama administration’s policies was assigned to him, he not only suspended those programs. He’s also engaged in unusual tactics that may have been an effort to delay appellate review of his decision, and he’s threatened to sanction Justice Department attorneys based on a supposed error on their part which concerned a matter he probably did not even have jurisdiction over at the relevant time.
As with Vinson’s decision in NFIB, Hanen’s decision lent a kind of legitimacy to this legal challenge, even though it was practically preordained the minute this challenge landed in his courtroom.