Texarkana Gazette

Judge who tossed Obamacare has history of contentiou­s cases

- By Kevin Krause

The Dallas Morning News

DALLAS—Many federal judges toil in relative obscurity for decades, diligently presiding over and settling civil and criminal disputes that come before them.

But after only 11 years on the bench, U.S. District Judge Reed O’Connor in Fort Worth has had more than his share of contentiou­s, high-profile cases. He has become a go-to judge for Republican­s over certain heated national social issues such as health care and transgende­r rights.

Given his previous decisions halting Obama administra­tion policies, few legal observers were surprised when the conservati­ve judge issued a ruling Friday evening that declared the Affordable Care Act unconstitu­tional because of a recent change in federal tax law.

“Without question, Judge O’Connor has had a fairly high-profile docket, in that he gets a lot of these hot-button issues,” said Josh Blackman, a law professor at South Texas College of Law in Houston.

O’Connor, 53, was nominated to the bench by then-President George W. Bush in 2007 after serving nine years as a federal prosecutor in the Northern District of Texas. Before that, he served four years as a prosecutor with the Tarrant County district attorney’s office.

Some legal experts have denounced O’Connor’s ruling, calling it “badly flawed” and “an exercise of raw judicial power.”

O’Connor couldn’t be reached for comment. Colleagues in the local legal community were kind in their assessment­s of the judge, although it should be noted that some still practice in his court. They describe O’Connor as a no-nonsense, hard-working judge who is equally tough on government and defense attorneys.

O’Connor’s ruling Friday stemmed from a lawsuit filed in January by Texas Attorney General Ken Paxton and joined by other Republican state attorneys general. O’Connor’s decision has cast a pall of uncertaint­y over the 2010 health care law, which Republican­s have repeatedly challenged in the courts.

Their argument was rooted in a 2012 Supreme Court ruling in which Chief Justice John Roberts wrote that the penalty in the law for not having health insurance was constituti­onal because of Congress’ ability to impose a tax on those people.

But congressio­nal Republican­s spearheade­d the eliminatio­n of that tax penalty last year as part of a major tax overhaul.

The Paxton lawsuit argued—and O’Connor agreed—that with that requiremen­t gone, the entire health care law was no longer constituti­onal.

It’s the second time O’Connor has ruled on a heated issue arising from the Affordable Care Act. But he did not issue a nationwide injunction this time, as he did two years ago when he struck down an Obama administra­tion rule barring health care providers from discrimina­ting based on gender identity.

Blackman said O’Connor has become a decider of national issues through no fault of his own.

The Texas attorney general has filed such cases in the Fort Worth and Wichita divisions of the Northern District of Texas because Paxton knows “with a high degree of certainty” they will wind up in O’Connor’s court, Blackman said.

That’s because O’Connor is one of only three judges who hear cases in the Fort Worth division, where the Obamacare lawsuit was filed, and one of just two judges in the Wichita Falls division.

“The attorney general bears the responsibi­lity for directing so many high-profile cases to Judge O’Connor,” Blackman said.

It’s called forum shopping. And Blackman said everyone does it. He noted that challenges to President Donald Trump’s travel ban were filed in liberal courts in California and New York.

“Most lawyers … will file the case where they think they have the best chance of winning,” he said. “It’s legal malpractic­e if an attorney doesn’t consider the best forum in which to file a case.”

Blackman said O’Connor’s rulings do reflect a certain judicial philosophy but are not Republican or Democratic.

O’Connor in February 2015 made news when he struck down as unconstitu­tional a federal ban on the interstate transfer of handguns.

O’Connor wrote that the law violated the Second Amendment’s right to keep and bear arms as well as the Fifth Amendment’s due process clause. The law required that such handgun sales be made through licensed firearms dealers. Rifles and shotguns were not subject to the same restrictio­ns at the time.

An Arlington gun dealer and two buyers had challenged the law the year before. The two Washington, D.C.-based buyers wanted to purchase two handguns from the Texas dealer but had to first transfer them to another licensed dealer in D.C. for pickup. They also had to pay a fee for each gun.

About a year later, O’Connor stopped the federal government from adding protection­s for same-sex couples under the Family and Medical Leave Act. O’Connor granted Paxton’s request to halt the change, which would have added legally married gay federal employees to the definition of “spouse” under the FMLA law.

O’Connor wrote in that case that the Obama administra­tion’s new rule would force employers to recognize same-sex marriages in violation of Texas state law.

In another big case, in August 2016, O’Connor issued an injunction blocking the Obama administra­tion from enforcing its directive ordering public schools across the nation to allow transgende­r students to use bathrooms and locker rooms that match their gender identity.

O’Connor said his injunction applied to every state in the nation. It came after Texas and 12 other states asked O’Connor to halt the directive.

That was after the Justice Department had sued North Carolina over a state law that required people to use public bathrooms that correspond with the gender on their birth certificat­es.

Then in January 2017, O’Connor handed down an injunction against a federal regulation banning discrimina­tion against transgende­r people in certain health programs. O’Connor said in his ruling that the federal mandate violated the Administra­tive Procedure Act and also probably violated religious freedom protection­s.

The ruling stemmed from a lawsuit filed by Texas and other plaintiffs who argued that the regulation would force doctors to perform gender transition procedures against their religious beliefs or medical judgment.

O’Connor, who is married with two daughters, earned a bachelor’s degree from the University of Houston and his law degree from the South Texas College of Law in Houston.

He was a civil litigator for five years at a Texas law firm before becoming a prosecutor.

In 2003, he went to D.C. on a Justice Department detail where he served as counsel to the U.S. Senate Judiciary Committee, advising then-Chairman Orrin Hatch, R-Utah. O’Connor drafted legislatio­n on crimes including terrorism, cybercrime, child pornograph­y and drug policy.

O’Connor went to D.C. for a second time in 2005 to serve as chief counsel to the Subcommitt­ee on Immigratio­n, Border Security, and Citizenshi­p. In that role, under Sen. John Cornyn, R-Texas, he advised on federal criminal law, national security law, immigratio­n policy and internatio­nal human rights law.

Richard Roper, former U.S. attorney for the Northern District of Texas, who is now in private practice, was O’Connor’s boss for a time.

“He’s kind of a low-key guy,” Roper said. “He runs a tight ship. He moves his cases along.”

Roper said O’Connor is known to go beyond 5 p.m. on trial days in an effort to conclude trials quickly and minimize disruption to jurors’ lives.

Most of what O’Connor and other federal judges do is “routine and mundane stuff,” Roper said. Or, as he put it, “calling balls and strikes.”

“I don’t see him having an agenda other than being conservati­ve,” Roper said.

Brian Poe, a former assistant U.S. attorney in the Northern District of Texas, called O’Connor a fair judge.

“If I give him case law, he’s going to follow it,” he said.

Poe, now a Fort Worth defense lawyer, said he may not always agree with the ruling, but he believes O’Connor will give him a “fair shake.”

Aaron Wiley, a former assistant U.S. attorney in Dallas, said O’Connor earned a reputation at the U.S. attorney’s office for being a “prosecutor’s prosecutor.”

And as a judge, O’Connor is equally hard on defense lawyers and prosecutor­s, said Wiley, who is in private practice. All judges are like that to some extent, although some more than others, he added.

“You better dot your i’s and cross your t’s with him,” Wiley said. “As a defense lawyer, that’s what you want.”

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