Earlier this week, Judge Henry Hudson became the first federal judge to find the individual mandate in the Patient Protection and Affordable Care Act unconstitutional
The verdict garnered a lot of media attention as political analysts and law experts provided their opinions, Republican politicians lauded the decision, and the Obama administration issued statements in defense of the health reform law.
The media, never a group to let a potential political controversy slip past them, reported on one trend in particular that I found intriguing:
The two judges who ruled on the health care law before Judge Hudson were both Democratic appointees — and they both determined Congress has the authority
to require Americans to obtain health insurance under the Commerce Clause
of the constitution.
Judge Hudson, on the other hand, is a Republican appointee and ruled the Constitution does not give Congress the authority to impose the individual coverage mandate.
This is unsurprising since, as Washington Post editorial writer Ruth Marcus wrote
A judge nominated by a Democratic president is more likely than a Republican nominee to view the Commerce Clause as giving the federal government broad regulatory powers.
In addition, Marcus points out:
Getting to be a federal judge is in part a political exercise. It is the rare judicial nominee who arrives on the bench with no connection to the world of politics.
However, in Judge Hudson's case, his perceived ties to the Republican party did not end with his appointment.
As NPR reported
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.
And, as you can imagine, Hudson's investment in the conservative consulting firm serves as fodder for liberals and as a compelling headline for those in the media — liberal or not.
To Hudson’s credit, he told the Washington Post
his investment in Campaign Solutions occurred before his appointment to the bench, and he said he has no current involvement in the firm. However, in a Bloomberg op-ed
, Ann Woolner wrote the following:
Campaign Solutions Inc. gave him $5,000 to $15,000 in 2009, as it had in 2008, according to his latest financial- disclosure reports, which only specify ranges for the amounts. Those were especially good years for advisers to Republicans. In all, over the past seven years since he has been reporting, Hudson’s dividends from the firm were $12,000 to $38,000.
Hudson’s potential conflict of interest may not have affected his ruling on the health care challenge, but it still allows for a perception of conflict of interest.
Marcus wrote in her column she thinks Hudson made a mistake by keeping any ownership stake in Campaign Solutions. Hofstra University Law Professor James Sample
"Judge Hudson's status as a shareholder is almost undoubtedly a correlation rather than the causation of his decision. 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?"
Hudson’s case reignites an ongoing debate regarding partisan bias of judges, and what constitutes a conflict of interest. The issue is certain to come up again as another Republican appointee is expected to rule on the law
in coming weeks — and as the individual coverage mandate debate heads toward the U.S. Supreme Court:
Conservatives are pressuring Supreme Court Justice Elena Kagan to recuse herself
on the grounds that she was the administration’s solicitor general at the time the health care reform legislation was crafted. Kagan has said that she was not involved in any "substantive discussion"
of the law, and she has not indicated she plans to recuse herself.