Litigation

Health Care Judge?s Holdings Called ?Mistaken?

By Peter Hardin

Federal District Judge Henry Hudson, who found unconstitutional a key part of the new federal health care law this week, has drawn criticism for holding an ownership interest in a Republican consulting firm, Campaign Solutions Inc.

In the Washington Post’s PostPartisan blog, Ruth Marcus tackled the headline topic of “Judges, ideology, and partisanship.” She wrote that it is not right to expect judges to be either be “robotically calling balls and strikes” like an umpire, or to think of them as “wearing uniforms under their robes” and rooting for one team. The reality is more complex, she wrote.

In that context Marcus registered her disagreement with Nan Aron of the Alliance for Justice, who had criticized Judge Hudson’s ruling this way:

“If anyone needed proof that judges matter and that the current battle in the Senate over judicial nominations is a fight worth having, they need look no farther than today’s ruling by Judge Henry Hudson, a former conservative Republican politician from Virginia, on a lawsuit filed by a current conservative Republican politician from Virginia, state Attorney General Kenneth T. Cuccinelli.”

Marcus called the second part of Aron’s argument “cynical reductionism.” She said Judge Hudson did not do Cuccinelli’s “bidding” but turned down his request to throw out the entire law. Marcus then moved on, however, to fault Judge Hudson’s interest in Campaign Solutions:

“Some judges, even some federal judges, are partisan hacks. Yet judges ought to be afforded the presumption of non-hackery — at least until proved otherwise. Which is why I think it was a mistake for Hudson to retain an ownership stake, valued at between $15,000 and $50,000, in a Republican political consulting firm, Campaign Solutions. Even worse, Cuccinelli has been a client of Campaign Solutions.

“Note to Judge Hudson: Going on the bench means cutting ties with the team.”

Judge Hudson, appointed by President George W. Bush, sits on the bench in Richmond, Virginia. His holdings also were discussed in a NPR report, where lawyer David Rivkin gave an alternate view. He is one of the lawyers who argued in Florida Thursday on behalf of 20 states challenging the new federal health care law (see Gavel Grab). Rivkin lamented what he called a familiar attack on judges.

“If you do not like what the judge or judges have decided, in a case where you feel the decision should have come out another way, what you do is you attack their motives, you attack them for their background,” Rivkin said. “That is absolutely inappropriate, and it is not an American way.”

Marcus also said it was a “terrible idea” for Supreme Court Justice Antonin Scalia to accept an invitation from Rep. Michele Bachmann, R- Minn., to talk to the conservative Tea Party Caucus next month (details are in an earlier Gavel Grab post.) “Justices don’t belong at partisan gatherings, period,” Marcus contended, noting that Bachmann maintains in a friend-of-the-court brief that the new health care law is unconstitutional. That issue may end up before the Supreme Court.

A New York Times article about the Florida legal arguments Thursday, meanwhile, said federal Judge Roger Vinson suggested that he may become the next jurist after Judge Hudson to strike down part of the health care law as unconstitutional.

Full post as published by The Gavel on December 17, 2010 (boomark / email).