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Health Care Rulings Reignite Judicial Bias Debate

U.S. District Judge Henry Hudson, shown at the court in Richmond, Va., declared a key provision of the Obama administration's health care law unconstitutional Monday. (Associated Press)

Earlier this week, Virginia's Henry Hudson became the first judge to overturn part of the Obama administration's signature health care law.

He has a colorful background: He's a former deputy sheriff and GOP congressional candidate. He was an anti-pornography crusader in the Reagan years. And then there's this: He has an ownership stake in Campaign Solutions Inc., a Republican consulting firm that has advised conservative political candidates.

In the health care challenges and other politically charged disputes, the judges hearing the cases are now drawing almost as much attention as the law.

Of the more than 20 lawsuits over the health care law that have been filed, so far:

-12 cases have been dismissed because of issues with jurisdiction or standing.

-3 cases have resulted in rulings on the merits of the law:

  • In two of those cases (Thomas More Law Center v. Obama in Michigan and Liberty University v. Geithner in Virginia), the judges upheld the law as constitutional.
  • In the third case (Commonwealth of Virginia v. Sebelius), U.S. District Court Judge Henry Hudson declared unconstitutional the law's requirement that nearly everyone have health insurance.

Sources: Justice Department, NPR

Two other federal judges, Norman Moon in Virginia and George Steeh in Michigan, both appointed by Democratic President Bill Clinton, have voted to uphold the Obama health care law.

And that has revived a long-standing debate over whether party affiliation or political background can predict how a judge will rule.

"Judge Hudson's status as a shareholder is almost undoubtedly a correlation rather than the causation of his decision," said Hofstra University law professor James Sample. "But it doesn't look very good."

"The provocative question in this case, I think, is, you know, what would possess a federal judge to maintain a continued financial interest in a group pushing litigation in his own courtroom?" Sample added.

For his part, Hudson told The Washington Post that he and his wife invested in the consulting company at the urging of a friend, before he became a judge. And Hudson said he sees no conflict.

Republicans Vs. Democrats: Too Simple?

"I can understand where the public would think that the Democratic judges are siding with the Democratic president, and the Republican judges are ruling against him," said Stephen Gillers, a legal ethics expert at New York University School of Law. "But I think that's wrong. At least, it's too simple.”

Gillers said he thinks something else is at work: bigger ideas about the power of the president and the Congress.

"It should not be seen as opposing Obama," he said. "It should rather be seen as consistent with a philosophy of the Constitution that happens to result in an opinion opposing Obama."

Questions about judges, their spouses and political involvement have been cropping up a lot lately.

News accounts this year highlighted the work of Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, at a conservative policy group that has challenged the constitutionality of the Obama health care law. She has since limited her leadership role in the group.

And lawyers recently asked Judge Stephen Reinhardt to step aside from the panel of 9th Circuit Court of Appeals judges hearing the California same-sex marriage case because his wife is an official at the American Civil Liberties Union in Southern California. The ACLU opposes the ban on same-sex marriage.

But Reinhardt refused to back away. He issued an order saying he could be impartial.

'Absolutely Inappropriate'

David Rivkin, a Republican lawyer, will be arguing to overturn the Obama health care law in Florida on Thursday, in front of Roger Vinson, a federal judge appointed by President Ronald Reagan. And Rivkin said the tactic of attacking judges has become all too familiar.

"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."

There could be another round of murmuring when the health care lawsuits finally make their way to the Supreme Court. Republican lawmakers are already trying to get former Obama Solicitor General Elena Kagan, who joined the court earlier this year, to agree to remove herself from hearing the case.

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Transcript

STEVE INSKEEP, host:

It's MORNING EDITION from NPR News. Good morning. I'm Steve Inskeep.

DON GONYEA, host:

And I'm Don Gonyea. We've been hearing this week about a court case in Virginia where a judge ruled that a key part of the sweeping health care law is unconstitutional. Today, the legal challenge shifts to Florida. Twenty states are taking part in a separate suit that is also intended to overturn the health care law.

The Florida case is being closely watched. And as NPR's Carrie Johnson reports, the judges in these suits are drawing almost as much attention as the law.

CARRIE JOHNSON: Earlier this week, Henry Hudson became the first judge to overturn part of the Obama health care law. He's got a colorful background -former GOP congressional candidate in Virginia, anti-pornography crusader in the Reagan years. And then there's this: his ownership stake in a Republican consulting firm that's advised political candidates on health care.

Professor JAMES SAMPLE (Law, Hofstra University): Judge Hudson's status as a shareholder is almost undoubtedly correlation, rather than the causation of his decision. But it doesn't look very good.

JOHNSON: That's James Sample. He's a law professor at Hofstra University, who studies when judges should step aside.

Prof. SAMPLE: The provocative question in this case, I think, is, you know, what would possess a federal judge to maintain a continued financial interest in a group pushing litigation in his own courtroom?

JOHNSON: For his part, Judge Hudson told the Washington Post that he and his wife invested in the company before he became a judge. And he sees no conflict. But two other judges, Norman Moon in Virginia and George Steeh in Michigan, both appointed by Democratic presidents, have voted to uphold the Obama health care law. And that's revived a longstanding debate over whether party affiliation or political background can predict how a judge will rule. Here's legal ethics expert Stephen Gillers.

Mr. STEPHEN GILLERS (Legal ethics expert): I can understand where the public would think that the Democratic judges are siding with the Democratic president and the Republican judges are ruling against him. But I think that's wrong. At least it's too simple.

JOHNSON: Something else is at work here, Gillers says, bigger ideas about the power of the president and the Congress.

Mr. GILLERS: It should not be seen as opposing Obama. It should rather be seen as consistent with a philosophy of the Constitution that happens to result in an opinion opposing Obama.

JOHNSON: Questions about judges, their spouses and political involvement have been cropping up a lot lately. News accounts this year highlighted the work of Virginia Thomas, the wife of Supreme Court justice Clarence Thomas, at a conservative policy group that's challenged the constitutionality of the Obama health care law. She's since limited her leadership role in the group.

And lawyers in the big California same-sex marriage case recently asked Ninth Circuit appeals court judge Stephen Reinhardt to step aside from hearing that appeal, because his wife is an official at the American Civil Liberties Union in southern California. The ACLU opposes the ban on same-sex marriage. But Judge Reinhardt refused to back away. He said he could be impartial.

David Rivkin is a Republican lawyer who will be arguing to overturn the Obama health care law in Florida today, in front of Roger Vinson, a judge appointed by President Ronald Reagan. And he says the tactic of attacking judges has become all too familiar.

Mr. DAVID RIVKIN (Attorney): 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. That is absolutely inappropriate and it is not an American way.

JOHNSON: American way or not, there could be another round of murmuring when the health care lawsuits make their way to the Supreme Court. Republican lawmakers are already trying to get former Obama solicitor general Elena Kagan to remove herself from hearing the case.

Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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