[Congressional Record Volume 165, Number 39 (Tuesday, March 5, 2019)]
[Senate]
[Pages S1650-S1652]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Chad A. Readler

  Mr. VAN HOLLEN. Madam President, I come to the floor to oppose the 
nomination of Chad Readler to the Sixth Circuit Court of Appeals and to 
urge my colleagues on both sides of the aisle to oppose this nomination 
as well.
  We have learned that both Senators from Ohio--one a Democrat and one 
a Republican--had previously proposed mutually agreeable candidates to 
fill the Sixth Circuit Court position, but despite that prior support, 
the Trump administration instead nominated somebody who did not have 
the support from both Senators, which is a device we use to try to 
encourage nominations that are not way out of the mainstream. We want 
judicial nominees who are not on the far right nor on any other 
extreme. Yet this administration decided to ignore that bipartisan 
support and nominated Mr. Readler for the position on the Sixth Circuit 
Court of Appeals.
  Mr. Readler, unfortunately, has a record that falls well out of the 
judicial mainstream. I am very concerned about the kind of judicial 
reasoning and findings he will make as a member of the Sixth Circuit, 
if he is confirmed.
  He has been the Trump administration's point man at the Department of 
Justice to try to destroy the Affordable Care Act and eliminate the 
protections the Affordable Care Act has brought to tens of millions of 
Americans, including protections for people with preexisting health 
conditions--whether it

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be a child with asthma, or somebody with diabetes, or anybody who has a 
preexisting condition health condition. Before the Affordable Care Act 
was passed, insurance companies would say either we are not going to 
insure you because you are going to be too expensive to treat or we 
will provide coverage but only at this price, and then they would quote 
a price the person couldn't possibly afford.
  The Affordable Care Act did away with that discrimination based on 
preexisting conditions. Yet at the Department of Justice, this nominee, 
Mr. Readler, was the point person in trying to reimpose discrimination 
based on preexisting conditions.
  Why do we say that? Because over the last couple of years there was a 
lawsuit filed in the State of Texas. It was filed by the attorney 
general of the State of Texas and a number of other attorneys general 
from other States around the country--Republican attorneys general--
that went after the Affordable Care Act. They argued that once the 
Congress passed legislation eliminating the penalties for the mandates, 
all the rest of the law collapsed. It is a position most legal scholars 
from all sides of the political spectrum think is an absurd legal 
conclusion that will not stand the test of time or the test of the 
courts in the long run.
  Despite the fact that the conclusion was way out of the mainstream 
and directed more out of a political charge to try to undo the 
Affordable Care Act, nevertheless, Mr. Readler filed the case on behalf 
of the Justice Department--not in support of the Affordable Care Act, 
which would be the usual practice of the Department of Justice in 
protecting the laws of the United States, but deciding, first of all, 
not to protect it and, secondly, to actively go after the Affordable 
Care Act and side mainly with the positions of Republican attorneys 
general who were trying to destroy the law.
  This was a very unusual position to take, and many of the career 
attorneys at the Department of Justice decided not to sign their names 
to the brief that was filed. They did not want to be associated with a 
brief that they thought was more a political document than a legal 
document. In fact, one very respected career attorney at the Department 
of Justice resigned in protest.
  Even our colleague, Senator Lamar Alexander, said this about the 
brief that was filed by the Justice Department: It is ``as far-fetched 
as any I've ever heard.''
  Despite the fact that this was a legal position far out of the 
mainstream--authored by Mr. Readler from his post at the Department of 
Justice--nevertheless, he went ahead and filed that brief. It is 
totally inconsistent with the position others claimed they were taking 
with respect to protecting people with preexisting health conditions. 
In fact, President Trump tweeted repeatedly that he wanted to protect 
people with preexisting health conditions.
  Many of our Republican colleagues in this Chamber in the Senate, and 
in the House, said they don't like some parts of the Affordable Care 
Act, but they want to protect people with preexisting conditions from 
discrimination by insurance companies. Yet the Texas lawsuit dismantles 
the Affordable Care Act top to bottom, including getting rid of 
provisions that protect people with preexisting conditions.
  I think it is important to remind people what that means because it 
means children with expensive, chronic medical conditions will no 
longer be able to get that kind of coverage.
  We also know that before the Affordable Care Act, insurance companies 
had arbitrary annual caps early in each year. So if a child had a 
chronic condition and the costs of helping that child, providing 
medical attention to that child, began to build up, they would 
sometimes hit that cap before their fifth birthday, and then the family 
would be on its own. People were paying health plans for coverage and 
services they needed, only to discover in the fine print that coverage 
really wasn't there for them when they needed it, and women who became 
pregnant found that their insurance plans would not cover any of their 
prenatal care or deliveries. Many of our fellow Americans were 
diagnosed with cancer only to discover that their plans did not cover 
chemotherapy.
  When the Texas attorney general, with a cohort of other Republican 
attorneys general, filed that lawsuit against the Affordable Care Act, 
they filed a lawsuit that put a dagger in the heart of the consumer 
protections and patient protections we had in the Affordable Care Act. 
It was Mr. Readler who didn't come to the defense of the law for the 
Department of Justice but in fact went after the Affordable Care Act 
and sided with the attorneys general in Texas.
  Indeed, there was a U.S. district court judge in Texas who went along 
with these legal arguments. What that means is, the case is now 
traveling through the Federal court system. It will go to the circuit 
courts and may end up at the Supreme Court. So I would hope our 
colleagues on both sides of the aisle who say they want judges who are 
going to do the right thing and call the balls and strikes as they see 
them and who have also said they support protections for people with 
preexisting health conditions would be nervous about putting someone on 
the court who says the law requires them to take the opposite position 
of what our colleagues say they support right now.

  As we approach this vote, make no mistake, in many ways, this is a 
vote on the future of protections for people with preexisting health 
conditions.
  Unfortunately, Mr. Readler has also taken a position on 
discrimination issues that is very troublesome on other fronts, 
specifically with respect to LGBT rights. Under his leadership, in his 
office, the Department of Justice submitted a brief in the case of 
Zarda v. Altitude Express. In that case, Zarda, who was an employee, 
alleged that his company had fired him because of his sexual 
orientation, and the Department of Justice did not take the side 
against the right of employers to discriminate based on sexual 
orientation. What they argued was that title VII of the Civil Rights 
Act does not cover discrimination based on sexual orientation.
  Fortunately, in a rare en banc decision, the Second Circuit Court of 
Appeals held that the LGBT community is protected as a class under the 
Civil Rights Act, but, unfortunately, because of a circuit split 
surrounding this issue, it is likely to go up through the court system 
and find its way to the Supreme Court. The position he took on behalf 
of the Trump Justice Department is a telltale sign of where Mr. Readler 
stands on questions of whether the law protects people who have been 
discriminated against.
  I should say this is not a new issue. For many of us, there have been 
efforts in Congress to address this issue. In my State of Maryland, in 
2001, we passed an anti-discrimination act that says it is illegal to 
discriminate against people based on their sexual orientation in 
housing, in employment, and in public accommodations. I recall that the 
bill was filibustered late into the evening by Republican State 
legislators, but fortunately for Marylanders it passed.
  I am also concerned about Mr. Readler's record in taking the side of 
tobacco companies during his time as a partner at Jones Day, 
specifically R.J. Reynolds Tobacco Company. Like many of us here, I 
have worked for many years--first, in the Maryland State Legislature 
and since then in the U.S. Congress--to curb tobacco use, especially 
among young people. I hope we all agree we don't want young people to 
get hooked on tobacco products or to get hooked on nicotine, which we 
know is very bad for their health and could very likely kill them in 
the long run. Yet Mr. Readler took the position of the tobacco 
companies, defining this issue simply as one of the need to have 
somebody who would stick up for special interests even when it was 
against the public health interests of the American people.
  He represented the tobacco giants in a number of cases--product 
liability cases and commercial speech cases. In one example, the city 
of Buffalo, up in New York, passed a ban on tobacco ads within 1,000 
feet of facilities frequented by children, like schools, playgrounds, 
and daycare centers. The purpose of that local ordinance was, of 
course, to prevent kids from seeing these ads and saying: Hey, that 
looks like something I want to do. Let's try this tobacco product. 
Maybe it is a candy-flavored tobacco product, maybe it is another 
tobacco product. The whole point of the ordinance was to protect the 
health of kids. Yet Mr. Readler fought against that local ordinance.

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  The Campaign for Tobacco-Free Kids, which is an organization that 
rarely, if ever, gets involved in judicial nominations, has found the 
position Mr. Readler took on behalf of these tobacco companies so far 
out and so extreme that they have taken the position of opposing the 
nomination.
  So whether it is fighting to dismantle protections for people with 
preexisting conditions, as Mr. Readler did from his perch in the Trump 
Department of Justice, or whether it is the positions he took as a 
lawyer for the tobacco industry, trying to knock down local ordinances 
and other laws to protect kids from tobacco and getting addicted to 
nicotine, or the position he has taken not to prevent discrimination 
but to say our laws do not protect people against basic forms of 
discrimination, in my view, Mr. Readler is disqualified from taking a 
position on a court where the goal of every justice, regardless of who 
appoints them, should be justice itself and making sure everybody who 
comes before that court gets a fair shake. They should not be positions 
based on the power of a special interest like the tobacco lobby, and it 
should not be a decision based on political slogans or political 
promises. Rather, it should be based on the law itself. So I urge my 
colleagues to oppose this nomination.
  Even among nominees who are very far to the right and who take a very 
restricted view of our rights and liberties, this is a nominee who 
finds himself way outside the mainstream.
  I urge my colleagues to oppose the nomination of Mr. Readler.
  Ms. COLLINS. Mr. President, I rise to announce my opposition to the 
nomination of Chad Readler to be a Judge on the Sixth Circuit Court of 
Appeals.
  As the Acting Assistant Attorney General of the Justice Department's 
Civil Division, Mr. Readler was both a lead attorney and policy adviser 
in the Department's decision not to defend the Affordable Care Act, 
including its provisions protecting individuals with preexisting 
conditions.
  Rather than defend the law and its protections for individuals with 
preexisting conditions, such as asthma, arthritis, cancer, diabetes, 
and heart disease, Mr. Readler's brief in Texas v. United States argued 
that they should be invalidated.
  I strongly objected to DOJ's position to not defend the law, and it 
is telling that this position also concerned some other career 
attorneys in the Department. In fact, three career attorneys withdrew 
from the case rather than support this position, and one of those 
attorneys eventually resigned.
  In my view, the Justice Department's severability argument is wrong 
and implausible. On June 27, 2018, I wrote to Attorney General Sessions 
and urged the Justice Department to reverse course and to defend the 
law's critical protections for individuals with preexisting conditions. 
Even the Justice Department acknowledged that it was ``rare'' for the 
government to refuse to defend the laws of the United States against 
constitutional challenges.
  I have continuously stressed the importance of protecting Americans 
who suffer from preexisting conditions, including 45 percent of Maine's 
population: 590,000 Mainers. In July 2017, I voted to block several 
proposals to repeal the ACA, which I feared would reduce protections 
for individuals with preexisting conditions. In October 2018, I voted 
to overturn a Trump administration rule that expands the duration of 
short-term health insurance plans, which could deny coverage to people 
with preexisting conditions.
  Mr. VAN HOLLEN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. TILLIS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TILLIS. Madam President, I ask unanimous consent that I be 
allowed to finish my comments before the vote. I expect it to take not 
more than about 3 or 4 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.