Why Judges Matter by Linda Greenhouse

[elleng]

'The Trump administration’s increasingly bizarre war on abortion continues as immigration officials keep trying to block access to abortion for pregnant undocumented teenagers in their custody. The administration has no law on its side (leading career lawyers in the Justice Department to withhold their signatures from its legal pleadings) but still won’t stop exploiting the plight of these most vulnerable young women, for no apparent reason other than a commitment to saving the world one fetus at a time.

But the administration’s war on birth control came to a grinding halt the other day. In a little-noticed ruling, a federal district judge in Philadelphia issued a temporary injunction against a new policy that lets employers refuse to cover contraception in their employees’ insurance plans if they have either religious objections to birth control or “sincerely held moral convictions” against it. (Note that since no one is forcing these employers to use birth control themselves, their moral objection has to be to their employees’ using it.) Marveling in her 44-page opinion at the “remarkable breadth” of these exemptions, Judge Wendy Beetlestone raised the obvious question: “Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice?” Her answer: The administration “has conjured up a world where a government entity is empowered to impose its own version of morality on each one of us.”

“That cannot be right,” she wrote.

I commented on the new policy when the administration announced it in October. While I thought it was preposterous, I didn’t expect either that the state of Pennsylvania (which has a Democratic governor, Tom Wolf) would bring a lawsuit or that a federal judge would be so forthright in calling the administration out. “It is difficult,” Judge Beetlestone wrote, “to comprehend a rule that does more to undermine the contraceptive mandate or that intrudes more into the lives of women.” The contraceptive mandate is the much-litigated Affordable Care Act requirement for employer-based insurance to cover “preventive care and screenings” for women, as further defined to include “the full range of FDA-approved contraceptive methods.” The open-ended religious and moral exemptions, Judge Beetlestone wrote, amounted to “the proverbial exception that swallows the rule.”'>>>

https://www.nytimes.com/2017/12/21/opinion/trump-judges-abortion-immigration.html?

[elleng]

1. Continuing:

'There was something particularly timely about reading this careful, lawyerly opinion at the moment when the Trump administration’s effort to pack the federal courts with young and underqualified ideological spear carriers was put on pause by alarmed members of the president’s own party. Judges matter. We know that in the abstract, of course, and we see it in action in the person of Justice Neil Gorsuch sitting in the junior justice’s seat on the Supreme Court bench that should have gone to Chief Judge Merrick Garland. But this week we had a powerful illustration. Judge Tanya Chutkan of Federal District Court in Washington, for the second time, ordered the administration to allow two immigrant teenagers to exercise their right to terminate their pregnancies. And Judge Beetlestone understood the stakes of allowing employers to escape their legal obligations to their female employees for, as she put it, “any inchoate — albeit sincerely held — moral reason they can articulate.”

Does the fact that these two judges are women make them more sensitive to the plaintiffs’ claims in these cases? I don’t know, but I do know that 81 percent of President Trump’s judicial nominees are men (including the three whose nominations cratered during the past week.) Does the fact that neither judge is white make them more skeptical of “because we’re the executive branch and we say so” legal arguments? (Judge Chutkan was born in Jamaica, and Judge Beetlestone was born in Nigeria.) I don’t know that either, but I do know that a mere 2 percent of the Trump administration’s nominees are nonwhite women. His nominees are the least diverse in decades.

Before progressives take much hope from these recent events, it’s important to remember that the three failed nominations are a drop in the bucket. The 12 Court of Appeals nominees whom the Senate confirmed this year represent the highest number of appellate court confirmations ever achieved during a president’s first year in office. These are crucially important positions, and the administration has maintained focus and played both tactics and strategy smartly. I will give the last word in this year’s final column to Don Willett, a former member of the Texas Supreme Court confirmed last week to the United States Court of Appeals for the Fifth Circuit. Long a favorite on the political right, he had this to say in an on-camera interview in 2012:

“I’ve built a record that is widely described — well, universally described — as the most conservative of anybody on the Supreme Court. I’ve garnered support from every corner of the conservative movement. There’s no ideological daylight to the right of me.” He continued, “I’m universally regarded to be the most conservative member of the court, which is a label that I accept with, frankly, gladness and gusto.”'