Sen. Coons questions Judge Cory Wilson, nominee to Fifth Circuit, on health care, voting rights

Sen. Coons: ‘Calling [the Affordable Care Act] illegitimate and freedom infringing strikes me as being about more than policy, it’s about legality, and your record leaves me concerned about your inclination to rule fairly on the facts and the law.’

WASHINGTON — Today, U.S. Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, questioned Judge Cory Wilson, a nominee to the Fifth Circuit Court of Appeals, during his confirmation hearing. 

Even as our country battles the COVID-19 pandemic, the Trump Administration is trying to strike down health care access in the courts, including for those with pre-existing conditions. Cory Wilson has been an outspoken advocate against the Affordable Care Act and state Medicaid expansion.

“Calling a law illegitimate and freedom-infringing strikes me as being about more than policy, it’s about legality and your record leaves me concerned about your inclination to rule fairly on the facts and the law. You mocked President Obama as ‘the anointed one,’ ‘President Make-believe,’ ‘King Barack.’ You described his administration as ‘paranoid,’ ‘shrill,’ ‘dishonest,’ ‘arrogant,’ ‘intellectually bankrupt.’ You called Secretary Clinton ‘crooked,’ ‘corrupt,’ ‘criminal,’ ‘clueless.’ What should it say to litigants that the judge before them on a really important federal circuit court seat has accused people of criminality and bad faith because he disagrees with them on matters of policy or politics?” asked Senator Coons. 

“A critical issue about our structure, our society, our republic is access to the ballot box. If we can’t protect the right to vote, we can’t protect one of the most fundamental freedoms. You’ve written multiple articles before your service as a judge in which you put voter suppression in quotes as if you didn’t believe it really exists,” said Senator Coons, on restrictive voter ID laws. “Do you acknowledge that voter ID laws can result in voter suppression, and can you name one example of voter suppression that has actually occurred since the Supreme Court decided the Shelby County case?”

Senator Coons concluded, “Broadly speaking, the point I’m simply trying to make is that policy disputes are one thing, but some of your comments are so sharply partisan and demonstrate such personal hostility about who are real Americans and who count that it leaves me gravely concerned about your inclination to be a fair-minded jurist. Despite your educational qualifications and your experience, it is those matters about your temperament and record that I am going to be looking at most closely as I consider your nomination to this historic and significant circuit court.”

Full audio and video available here. A transcript is below.

Sen. Coons: Thank you, Senator. Thank you, Your Honor. I’ll just note that we are again considering a judicial nominee, someone who has in our previous encounter when you were here for a district court judgeship demonstrated sharp partisan views when in my view we should instead be holding hearings that are directly responsive to the global pandemic that has taken nearly 100,000 American lives and where I think there are pressing issues that this committee can and should instead be focusing on.  But I will turn to the business before us if I might. Judge Wilson, you are a state court judge who has served just one year. Is that correct?

Hon. Judge Wilson: Yes, Senator, a little over a year – about 15 months.

Sen. Coons: You’ve described passage of the Affordable Care Act, which still today provides protection for over 130 million Americans against preexisting condition discrimination, you described that act as ‘perverse,’ its passage ‘illegitimate’ and ‘reflecting colossal arrogance.’ I think I’m quoting, and you compared it to ‘ramming a freedom-infringing mess down our throats.’ Now you’ve previously testified that the Supreme Court has addressed the ACA in response to other senators’ questions and you recognize that you are bound by and would respect that court precedent, but we are talking today in an environment where the administration is actively litigating to strike down the ACA based on a different theory. When millions of Americans, tens of millions of Americans depend upon it for their health care during this pandemic, how could any of them expect you to decide these challenges fairly? I recognize you were in your role not as a judge but as a state legislator and advocate, but I think these very sharp words give us a real insight into your policy position. 

Hon. Judge Wilson: Well Senator, thank you for your question because as I noted when I was a policymaker I agree with your, the importance you place on health care and access to health care. I worked on that issue substantially while I was in the legislature. I think though that people can have confidence that I will decide cases fairly and impartially in accordance with binding precedent and the text of the law because the role of a judge is quite distinct and different from the role of a policymaker. When I wrote those comments that you referenced, I was writing as a commentator, as a private citizen. I was serving in the legislature where policy and politics were very much in debate about the Affordable Care Act.

Sen. Coons: If I might, Judge Wilson, forgive me. We have limited time here. Calling a law illegitimate and freedom-infringing strikes me as being about more than policy, it’s about legality, and your record leaves me concerned about your inclination to rule fairly on the facts and the law. You mocked President Obama as ‘the anointed one,’ ‘President Make-believe,’ ‘King Barack.’ You described his administration as ‘paranoid,’ ‘shrill,’ ‘dishonest,’ ‘arrogant,’ ‘intellectually bankrupt.’ You called Secretary Clinton ‘crooked,’ ‘corrupt,’ ‘criminal,’ ‘clueless.’ What should it say to litigants that the judge before them on a really important federal circuit court seat has accused people of criminality and bad faith because he disagrees with them on matters of policy or politics?

Hon. Judge Wilson: Well, Senator, again my record as a judge on the Mississippi Court of Appeals should provide some degree of comfort because in over 500 cases now, I have fulfilled decisions on cases by applying the law and by doing so impartially and fairly. The comments you referenced were made at a time when I was involved in campaigns, when these issues were being debated, and frankly I had personal perspective about the Affordable Care Act and the way it was passed and the process because at the time I wrote these, I was with a very small law firm. I didn’t have a salary, so I had to go out and work, and I had to earn a living. Before my family got paid, I also paid 100 percent of my family’s health insurance premiums. And so over that time frame my premiums went up, my coverage actually went down and so some of that personal perspective about what I was experiencing may provide context…

Sen. Coons: I can certainly understand and appreciate people who have strongly held policy views – I frankly think there is value in having people who are former legislators on the bench – but the sharpness and the shrillness of some of these attacks. You didn’t just attack President Obama and Secretary Clinton. You wrote that an ‘intellectually honest Democrat’ is a ‘rare sighting.’ Speaking as someone who is both a Democrat and tries to be intellectually honest, it’s hard not to take some concern from that that litigants before you will have difficulty believing that your record of one year as a state court judge gives enough confidence in your impartiality. Let me ask a last question if I might. A critical issue about our structure, our society, our republic is access to the ballot box. If we can’t protect the right to vote, we can’t protect one of the most fundamental freedoms. You’ve written multiple articles before your service as a judge in which you put voter suppression in quotes as if you didn’t believe it really exists.  Given your state’s significant and historic role in the struggle for access to the ballot box, I thought it was important to ask a question again that I asked at your last hearing and for which I don’t think I got a clear answer. Do you acknowledge that voter ID laws can result in voter suppression, and can you name one example of voter suppression that has actually occurred since the Supreme Court decided the Shelby County case?

Hon. Judge Wilson: Well, Senator, I guess I’m not familiar with the details of the Fourth Circuit case that we’ve been discussing before now regarding the North Carolina voter ID law, but again that case might be an example that, where the court found that that measure was invalid, but going back to my record as a policymaker, Senator, I agree with you that the ballot box…

Sen. Coons: Your Honor, did the court find it was invalid or did it find it was unconstitutional and it was crafted by state legislators with surgical precision for the purpose of voter suppression?

Hon. Judge Wilson: Well, Senator, I’m not familiar with the case enough to be familiar with the holding.

Sen. Coons: I would be happy to say that I will wait for your answer on the record, we have the opportunity to ask questions for the record if we could. I’m just going to ask one last time; do you acknowledge voter ID laws can have the result of suppressing the vote in ways that are unconstitutional and impermissible?

Hon. Judge Wilson: Well, Senator, I don’t want to prejudge an issue that may come before the court, I don’t feel like I can comment on that appropriately. I can say from my experience in elections administration and in my record in the House, I supported a number of provisions that would have actually expanded access to the ballot, would have, it did modernize our election code and make the whole voting process more transparent and more available for all voters. I think that a policymaker can be both in support of the integrity of the ballot and protecting the right of everyone to vote in a legal election and expanding and making the franchise more available to exercise.

Sen. Coons: Well, Your Honor, I certainly look forward to hearing from you in writing with more detail about how that is possible, what you have done to that extent and your views on how we protect access to the ballot in ways that expand the franchise and ensure that we have free and fair elections in this country. A number of other comments you’ve made, and I’ll include them in a question for the record, leave me concerned about your views about the vote and about the franchise. Broadly speaking, the point I’m simply trying to make is that policy disputes are one thing, but some of your comments are so sharply partisan and demonstrate such personal hostility about who are ‘real Americans’ and who count that it leaves me gravely concerned about your inclination to be a fair-minded jurist. Despite your educational qualifications and your experience, it is those matters about your temperament and record that I am going to be looking at most closely as I consider your nomination to this historic and significant circuit court. Thank you for your indulgence, Senator. Thank you, Your Honor. 

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