While everyone's eyes were on Richmond, there was another big ACA-litigation-related development today in Cincinnati: the three-judge panel of Sixth Circuit judges has been announced for Thomas More Law Center v. Obama. The judges are:
* Circuit Judge Boyce F. Martin, Jr. (appointed by President Carter)
* Circuit Judge Jeffrey S. Sutton (appointed by President George W. Bush)
* District Judge James L. Graham (S.D. Ohio, sitting by designation) (appointed by President Reagan)
I know very little yet about Judge Graham, but obviously this is a very different panel ideologically from the one that heard Liberty University v. Geithner and Virginia v. Sebelius today at the Fourth Circuit. First, it is majority Republican. Second, Judge Sutton made his name, to some degree, arguing federalism cases at the Supreme Court on behalf of states (principally in his prior role as Solicitor General for the State of Ohio). So he is not only a Bush appointee, but one who is committed to the structural constitutional limitations on the federal government vis-a-vis the states. Third--to make things even more interesting--Judge Martin's reputation is as one of the most liberal judges in the entire federal judiciary.
Today's Fourth Circuit panel seemed to see things in a largely similar fashion. That seems unlikely at the Sixth Circuit on June 1.