Conservative Federal Judge Deems Portion of Health Care Law Unconstitutional

After two federal judges had deemed the new Health Care law constitutional, a Virginia federal judge appointed by George W. Bush has deemed it’s “individual mandate” provision unconstitutional.  The New York Times has the story:

A federal judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first judge to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

The judge, Henry E. Hudson of Federal District Court in Richmond, said the law’s requirement that most Americans obtain insurance exceeded the regulatory authority granted to Congress under the Commerce Clause.

(…)

In a 42-page opinion, Judge Hudson wrote: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Allowing Congress to exert such authority, he said, “would invite unbridled exercise of federal police powers.”

Compelling vehicle owners to carry accident insurance, as states do, is considered a different matter because the Constitution gives the states broad police powers that have been interpreted to encompass that. Furthermore, there is no statutory requirement that people possess cars, only a requirement that they have insurance as a condition of doing so. By contrast, the plaintiffs in the health care case argue that the new law requires people to obtain health insurance simply because they exist.

The insurance mandate is central to the law’s mission of covering more than 30 million people who are uninsured. Insurers argue that only by requiring healthy people to have policies can they afford to pay for those with expensive conditions. But Judge Hudson ruled that many of the law’s other provisions could be severed legally and would survive even if the mandate is invalidated.

Judge Hudson is the third district court judge to reach a determination on the merits in one of the two dozen lawsuits challenging the health care law. The other judges, in Detroit and Lynchburg, Va., have upheld the law. Lawyers say the appellate process could last another two years before the Supreme Court settles the dispute.

The opinion by Judge Hudson, who has a long history in Republican politics in Northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration, while Democratic appointees have found for it.

Statement by President Obama on Oil Liability

In the wake of Republican Senator Jim Inhofe’s blocking of a Democratic proposal on Tuesday to boost the liability cap on oil spills from the current $75 million to $10 billion, President Barack Obama released this statement today on the issue of Oil Liability:

“I am disappointed that an effort to ensure that oil companies pay fully for disasters they cause has stalled in the United States Senate on a partisan basis. This maneuver threatens to leave taxpayers, rather than the oil companies, on the hook for future disasters like the BP oil spill. I urge the Senate Republicans to stop playing special interest politics and join in a bipartisan effort to protect taxpayers and demand accountability from the oil companies.”

President Obama Nominates Jack McConnell to the US District Court

President Barack Obama yesterday officially nominated Jack McConnell to be a U.S. District Court Judge in the District of Rhode Island.

Today, President Obama nominated Judge Catherine Eagles, Judge Kimberly Mueller and John J. McConnell, Jr. to the United States District Court.  Judge Eagles is a nominee for the Middle District of North Carolina, Judge Mueller is a nominee for the Eastern District of California and McConnell is a nominee for the District of Rhode Island.

“I am honored to put forward these highly qualified candidates for the federal bench,” President Obama said.  “They will be distinguished public servants and valuable additions to the United States District Court.”

John J. McConnell, Jr.:  Nominee for the United States District Court, District of Rhode Island
Jack McConnell is the managing partner of the Providence, Rhode Island office of Motley Rice LLC, where he directs the environmental practice group.  He received his A.B. from Brown University in 1980 and his J.D. from Case Western Reserve University School of Law in 1983.  After law school, McConnell clerked for The Honorable Donald Shea of the Rhode Island Supreme Court.  After his clerkships, McConnell spent two years in private practice at the Providence firm of Mandell, Goodman, Famiglietti & Schwartz.  In 1986, he joined the firm that is now Motley Rice LLC.  McConnell is Chairman of the Board for the Trinity Repertory Company, Vice-Chair for Crossroads Rhode Island, and Chair of the Providence Tourism Council.

This is a great nomination.  As I previously reported, McConnell’s nomination has widespread support.  Letters of support have come from every direction in support of McConnell – including significant amounts of business and Republican leaders:

• David Whalen, CEO of A.T. Cross
• Scot Jones, CEO of Groov-Pin
• Merrill Sherman, BankRI
• Howard Sutton, Publisher of the Providence Journal
• Adam Hamblett, Cox Communications
• John Palumbo, RI Monthly
• Jon Duffy, Duffy & Shanley
• Sally Lapides, Owner of Residential Properties
• Donna Brady, Citizen’s Bank
• Edye Demarco, Merrill Lynch
• Juana Horton, Hispanic Chamber of Commerce
• Anne Nolan, CEO of Crossroads
• Republican Mayor of Warwick Scott Avedisian
• Former Republican Attorney General Jeff Pine
• Former Republican Party Vice-Chair John Harpootian
• Former RI Supreme Court Chief Justice Jospeh Weisberger
• RI Superior Court Justices Netti Vogel and Frank Darigan
• Barbara Hurst, RI Public Defender’s Office
• Roger Williams University School of Law Dean David Logan
• Representatives from both sides of the Tobacco lawsuit: Washington Governor Christine Gregoire and Tobacco Company lawyer Meyer Koplow

Federal Government Still Investigating Toyota Recall

As a followup to our post on knowing the facts about the Toyota recall, the Associated Press is reporting that Transportation Secretary Ray LaHood “sharply criticized” Toyota and accused the automaker of being “‘a little safety deaf’ to mounting evidence of problems.” LaHood also told the AP “that federal safety officials had to ‘wake them up’ to the seriousness of the safety issues that eventually led Toyota to recall millions of popular brands like Camry and Corolla. That included a visit to Toyota’s offices in Japan to convince them to take action.”

In addition, the Detroit News reports that a “senior” DOT official confirmed that “NHTSA is considering imposing civil penalties on Toyota for its conduct.” The News notes that under US law, “automakers can be fined $16.375 million per recall.” Meanwhile, “Toyota didn’t directly address LaHood’s criticisms in its own statement.”

Excerpts from the State of the Union

Hot off the presses from the White House Media Affairs Office, here are some excerpts from tonight’s State of the Union address by President Barack Obama:

EXCERPTS OF THE PRESIDENT’S STATE OF THE UNION ADDRESS

We face big and difficult challenges.  And what the American people hope – what they deserve – is for all of us, Democrats and Republicans, to work through our differences; to overcome the numbing weight of our politics.  For while the people who sent us here have different backgrounds and different stories and different beliefs, the anxieties they face are the same.  The aspirations they hold are shared.  A job that pays the bill.  A chance to get ahead.  Most of all, the ability to give their children a better life.

You know what else they share?  They share a stubborn resilience in the face of adversity.  After one of the most difficult years in our history, they remain busy building cars and teaching kids; starting businesses and going back to school.  They are coaching little league and helping their neighbors.  As one woman wrote to me, “We are strained but hopeful, struggling but encouraged.”

It is because of this spirit – this great decency and great strength – that I have never been more hopeful about America’s future than I am tonight.  Despite our hardships, our union is strong.  We do not give up.  We do not quit.  We don’t allow fear or division to break our spirit.  In this new decade, it’s time the American people get a government that matches their decency; that embodies their strength.   And tonight, I’d like to talk about how together, we can deliver on that promise.

…

By the time I’m finished speaking tonight, more Americans will have lost their health insurance.  Millions will lose it this year.  Our deficit will grow.  Premiums will go up.  Co-pays will go up.  Patients will be denied the care they need.  Small business owners will continue to drop coverage altogether.  I will not walk away from these Americans.  And neither should the people in this chamber.

…

Rather than fight the same tired battles that have dominated Washington for decades, it’s time for something new.  Let’s try common sense.  Let’s invest in our people without leaving them a mountain of debt. Let’s meet our responsibility to the people who sent us here.

To do that, we have to recognize that we face more than a deficit of dollars right now. We face a deficit of trust – deep and corrosive doubts about how Washington works that have been growing for years. To close that credibility gap we must take action on both ends of Pennsylvania Avenue to end the outsized influence of lobbyists; to do our work openly; and to give our people the government they deserve.

That’s what I came to Washington to do. That’s why – for the first time in history – my Administration posts our White House visitors online. And that’s why we’ve excluded lobbyists from policy-making jobs or seats on federal boards and commissions.

But we cannot stop there. It’s time to require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress.  And it’s time to put strict limits on the contributions that lobbyists give to candidates for federal office. Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign companies – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities.  They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

I’m also calling on Congress to continue down the path of earmark reform. You have trimmed some of this spending and embraced some meaningful change.  But restoring the public trust demands more. For example, some members of Congress post some earmark requests online. Tonight, I’m calling on Congress to publish all earmark requests on a single website before there’s a vote so that the American people can see how their money is being spent.

O. Rogeriee Thompson Nominated for First Circuit Court of Appeals Vacancy

O. Rogeriee Thompson

President Barack Obama yesterday formally nominated Superior Court Associate Justice O. Rogeriee Thompson to serve on the United States Court of Appeals for the First Circuit.

Today, President Obama nominated Judge Denny Chin for a seat on the United States Court of Appeals for the Second Circuit and Judge O. Rogeriee Thompson for a seat on the United States Court of Appeals for the First Circuit.  Judge Chin currently serves as a U.S. District Court Judge for the Southern District of New York.  Judge Thompson currently serves as an Associate Justice on the Rhode Island Superior Court.

“Judges Chin and Thompson have displayed exceptional dedication to public service throughout their careers,” President Obama said.  “They have served on the bench with distinction in New York and Rhode Island, and I am honored to nominate them today to serve the American people on the United States Court of Appeals.  I am confident that they will be judicious and esteemed additions to the First and Second Circuits.”

…

Judge O. Rogeriee Thompson was born and raised in Anderson, South Carolina. She earned her A.B. from Brown University in 1973, and her J.D. from Boston University School of Law in 1976. Judge Thompson began her legal career as a staff attorney at Rhode Island Legal Services as a Reginald Haber Smith Fellow. She was ultimately promoted to Senior Staff Attorney and Family Law Unit Manager, where she served as chief litigation counsel for all major domestic and juvenile trials. After three years at Legal Services, Judge Thompson entered private practice, working at a small firm and then as a solo practitioner before forming a partnership with her sister at the firm of Thompson & Thompson. There she focused on Native American law, civil rights, family law and real estate. While in private practice, Judge Thompson conducted trainings throughout the country for the National Institute of Trial Advocacy. She also served as Assistant City Solicitor, where she defended the City of Providence in civil actions and prosecuted criminal cases.

In 1988, Judge Thompson became the first African-American woman to be nominated to the Rhode Island District Court where she presided over state law criminal misdemeanors, civil actions with damages up to $10,000, and tax appeals.  In 1997, she was elevated to the Rhode Island Superior Court, where she currently serves.  She was the first African-American woman on that court.  As an Associate Justice of the Rhode Island Superior Court, Judge Thompson has original jurisdiction over all felony cases and civil actions, including those sounding in equity.

While on the bench, Judge Thompson chaired the Court’s Ad Hoc Task Force on Limited English Speaking Litigants, which was instrumental in the Superior Court establishing an Office of Court Interpreters to ensure that all limited English-speaking litigants have a fuller understanding of judicial proceedings. Judge Thompson is active in a wide variety of community and educational organizations.  She is a Trustee of Brown University and of Bryant College.

Senators Reed and Whitehouse had recommended this historic nomination months ago and the President formally sent it to the Senate yesterday.

Click here to read the full Providence Journal story.

If confirmed by the U.S. Senate, Thompson will replace the retiring Hon. Bruce M. Selya.  She will be only the second woman on the First Circuit bench and the first African-American.

Best wishes to Judge Thompson for a speedy confirmation.  She was a talented and brilliant attorney and is a seasoned, accomplished and incredible trial judge.

Obama, Medical Malpractice and Tort Reform

President Barack Obama continued to vaguely endorse conservative ideas such as efforts to prevent victims of medical malpractice from winning compensation in the civil justice system in his health care speech last night:

The AP reports that in his speech before a joint session of Congress last night pushing his ideas for healthcare reform, President Obama said “that he wants to look at a ‘range of ideas’ to ‘put patient safety first and let doctors focus on practicing medicine.’ Obama says some in Congress believe medical malpractice reform can help bring down health care costs. He says he doesn’t think it’s a ‘silver bullet,’ but that he knows that doctors practicing ‘defensive medicine’ can lead to unnecessary costs.

But, the reality is, as McClatchy notes, “[f]ew causes in the healthcare debate draw more support than tort reform — the idea of reining in frivolous lawsuits that lead to unjust cash awards, soaring malpractice premiums and “defensive medicine,” the unnecessary tests ordered by doctors to avoid being sued.”

However, according to the McClatchy analysis, “despite the perception that ‘jackpot justice’ has fueled soaring costs, hard data yield a much different picture.” McClatchy reports that the “most reliable estimates peg the costs of malpractice litigation at less than 2 percent of overall healthcare costs. And while tort reform measures have helped tamp down malpractice premiums, national health spending continues to rise.” Moreover, it is not “clear that jackpot justice, as opposed to declines in insurers’ investment income, is to blame for rising malpractice premiums.” This “suggests that a tort system run amok is, at best, only a small contributor to the nation’s healthcare costs.” (emphasis added)

McClatchy has got it right.  As demonstrated by the recent Hearst expose on massive, nationwide medical errors – Dead by Mistake – it is clear that the civil justice system is the only true defense for consumers against medical errors – which are the THIRD leading cause of death in the United States.  Further, the CBO reports that malpractice claims make up less than 1% of the health care costs in America.  So, even if you completely eliminated all malpractice claims, 99% of the costs would still be present.

It should be also be noted that in Texas – the state with the most stringent caps on medical malpractice lawsuits – health care costs remain the highest in the country.  A June 1, 2009, New Yorker magazine article by Dr. Atul Gawande, “The Cost Conundrum; What a Texas town can teach us about health care,” explored why the town of McAllen, Texas, “was the country’s most expensive place for health care.”  The following exchange took place with a group of doctors and Dr. Gawande:

“It’s malpractice,” a family physician who had practiced here for thirty-three years said. “McAllen is legal hell,” the cardiologist agreed.  Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?  “Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

Here’s the real issue.  Many doctors are not ordering additional tests to avoid being sued, they are ordering additional tests to get paid. Here’s more from the Op-Ed cited above:

The Dartmouth Institute for Health Policy has reported that Medicare spending in Texas increased by almost 25 percent in the three years following that state’s adoption of restrictive tort laws. In fact, a University of Alabama study, published in the December 2008 issue of Health Sciences Review, reviewed data from 27 states that already have laws restricting torts and found that such laws do not impact the practice of defensive medicine and have not resulted in cost savings for healthcare consumers. Another 2008 study, published in the MIT Quarterly Journal of Economics, addressed the myth of defensive medicine as it related to the practice of obstetrics. After reviewing the vital statistics of millions of births, the authors concluded that tort restriction does not reduce the cost associated with the practice of defensive medicine.

If defensive medicine is not the reason for the high cost healthcare, then what is?

In Dr. Gawande’s article, he looked to the Mayo Clinic as an example of top quality healthcare at a low cost and asked how it was achieved. The Mayo Clinic managed this feat by putting the patient’s needs first. They eliminated financial incentives to order excessive testing and procedures by paying the medical staff salaries rather than having a fee for services model.

Here in Massachusetts, it appears we are independently reaching the same conclusion. On July 16, 2009, a Special Commission on the Health Care Payment System recommended to Governor Patrick that Massachusetts eliminate the fee for services model of paying physicians. In the alternative, physicians would be grouped into networks responsible for patients’ well-being and they would receive salaries – like the physicians at the Mayo Clinic.

Tort restriction harms those who have already been harmed irreparably and does absolutely nothing to reform healthcare or control its related cost.

Let’s reform the way that doctors are compensated, so that wellness and preventative care is rewarded, and work to reduce health problems AND medical errors. THAT’S real reform.

Obama Administration Outlines Policy on Medical Errors

In the wake of their expose on massive, nationwide medical errors – Dead by Mistake – Hearst Newspapers reports that “while the White House acknowledges that hospital medical errors are ‘a big and serious problem,’ a senior administration official says President Barack Obama does not favor a mandatory reporting system for all medical mistakes, just for infections.” The Administration argues for this separation because “while infections can be easily documented, not every medical mistake is a clear-cut error on the scale of the amputation of the wrong limb or application of the wrong drug.” The official said, “Once you get past the clear cases, it gets a lot harder” to assign blame. “Many of the cases are much more ambiguous.” Some supporters “say the White House might simply be making a pragmatic decision to postpone a fight over error reporting.”

Meanwhile, Laura Lando writes in the Wall Street Journal that hospitals are starting to be a lot more open after medical errors.  While there intentions might not be purely altruistic (they are trying to avoid future lawsuits), the hospitals are increasingly offering greater disclosure to patients after errors.  Landro writes that there is some indication patients are less likely to sue after full disclosure and offered compensation.  Landro also recounts specific instances of hospitals disclosing medical errors then creating new programs to avoid the same errors happening in the future.

Peter F. Neronha Officially Nominated for US Attorney in Rhode Island

As a follow-up to this post, President Barack Obama has officially nominated Peter F. Neronha to be US Attorney for the District of Rhode Island, amongst a batch of 4 nominations made today.

WASHINGTON, DC – President Obama today nominated the following individuals as United States Attorneys:

·         Daniel G. Bogden, District of Nevada

·         Deborah K. Gilg, District of Nebraska

·         Timothy J. Heaphy, Western District of Virginia

·         Peter F. Neronha, District of Rhode Island

“These fine men and women have demonstrated the extensive knowledge of the law and deep commitment to public service Americans deserve from their United States Attorneys,” President Obama said. “It is with the utmost confidence in their ability and integrity that I nominate them for the weighty task of pursuing justice on behalf of the American people.”

Peter F. Neronha, Nominee for U.S. Attorney for the District of Rhode Island

Peter Neronha has been an Assistant United States Attorney in the District of Rhode Island for the past seven years. Prior to that, Neronha served in the Rhode Island Department of the Attorney General as Special Assistant Attorney General from 1996 to 2001 and Assistant Attorney General from 2001 to 2002. Following graduation from law school, he worked as an associate at Goodwin Proctor, LLP in Boston, Massachusetts. Neronha graduated from Boston College and Boston College Law School.

Congressman Patrick J. Kennedy (D-RI) issued the following statement:

“Mr. Neronha has distinguished himself as an accomplished prosecutor and committed public servant.  He is well respected by law enforcement, legal professionals and his peers, and he has represented the people of Rhode Island exceptionally well in both the U.S. Attorney’s office and the state Attorney General’s office.  I commend Senators Reed and Whitehouse for recommending Mr. Neronha for this important post, which reflects his experience and dedication to serving and protecting the people of Rhode Island.  I congratulate Mr. Neronha on this well deserved nomination.”

Reed and Whitehouse Recommendation of US Attorney: Neronha

Bypassing the Democratic Party chairman and a former Obama classmate and fundraiser, US Senators Jack Reed and Sheldon Whitehouse have announced they have recommended that President Barack Obama nominate current Assistant U.S. Attorney Peter F. Neronha to be the next U.S. Attorney for Rhode Island.

“Peter Neronha is a veteran prosecutor and a dedicated public servant.  He is a true professional.  His exemplary service in the U.S. Attorney’s office and the state Attorney General’s office has earned him respect across the board from the law enforcement and legal communities.  We are confident Mr. Neronha will be an exceptional U.S. Attorney and that he will do an outstanding job of serving and protecting the people of Rhode Island,” said Reed and Whitehouse.

According to the press release, Neronha has served as an Assistant United States Attorney for the District of Rhode Island since 2002.  He currently works in the criminal division prosecuting drug, organized crime, and public corruption cases.  Mr. Neronha also heads the Project Safe Neighborhoods Initiative, which helps bolster law enforcement initiatives against gun crimes and prevents young people from turning to a life of violence.  Prior to becoming a federal prosecutor, Mr. Neronha served from 1996 to 2002 as the Assistant Attorney General of Rhode Island where he also worked in the criminal division.  He practiced law as a civil litigator at Goodwin Procter, LLP from 1989 to 1996.   He graduated in the top 10 of his class from Boston College and also graduated Magna Cum Laude from Boston College Law School.

As with the recent judicial recommendations, the Senatorial recommendation to the President for US Attorney is only a recommendation and ultimately the President nominates a candidate who must then be confirmed by the U.S. Senate.

15 Possible Supreme Court Nominees for President Obama

SCOTUS blog has a detailed look at the retirement of Supreme Court Associate Justice David Souter, his legacy, a timeline for a possible replacement and a list of possible nominees from the Obama administration.

Given my premise that qualifications are extremely important – i.e., that the President will want to pick someone who stacks up evenly with the Chief Justice and Justice Alito – a truly shocking surprise is very unlikely. The number of people who have the horsepower and reputation to truly deserve a Supreme Court appointment is pretty small. My most recent post on this speculation is here, and I don’t have much to add to it. (The President and I don’t talk as often as we should.) I said then that “[t]he three obvious candidates are Elena Kagan (SG), Sonia Sotomayor (CA2), and Diane Wood (CA7). The sleeper candidate is Michigan Governor Jennifer Granholm.” Governor Granholm subsequently said she was not interested, but you never know. Through all his Chicago ties, including to the University of Chicago Law School, the President will be very familiar with Judge Wood’s reputation for brilliance. The President also knows Elena Kagan (who has her own Chicago ties) and the Administration will be very conscious of the fact that General Kagan is ten years younger and has the reputation from Harvard of working very well and persuasively among an ideologically diverse group.

In adding speculation from the Huffington Post, the New York Times, the LA Times, the AP, the Wall St. Journal and Salon.com, here are the top 15 candidates who might be nominated to replace Souter (in order of likelihood):

1. Sonia Sotomayor (Second Circuit)
2. Diane Pamela Wood (Seventh Circuit)
3. Elena Kagan (Solicitor General)
4. Hillary Clinton (Sec. of State)
5. Kim McLane Wardlaw (Ninth Circuit)
6. Leah Ward Sears (Chief Justice of the Georgia Supreme Court)
7. Jennifer Granholm (Gov. of MI)
8. Janet Napolitano (Sec. of Homeland Security)
9. Pamela Karlan (Stanford Law School)
10. Kathleen Sullivan (former Dean, Stanford Law School)
11. Teresa Wynn Roseborough (former DoJ)
12. Merrick Garland (DC Circuit)
13. Ruben Castillo (District Court Judge, Chicago)
14. Caroline Kennedy
15. Carlos Moreno, CA Supreme Court Justice

Unquestionably, the vetting and announcement of a possible SCOTUS justice is both a huge challenge and an incredible opportunity for a President in his first year.

Caroline Kennedy to the SCOTUS?

When K-Lo from the National Review wrote last June of Caroline Kennedy being appointed to the Supreme Court, no one took her very seriously. Now, perhaps they are.

The case for Caroline Kennedy to be Obama’s first SCOTUS nominee goes something like this, as a friend described to me in an email this morning:

Caroline Kennedy possesses both of the qualities that the Obama administration is looking for: she’s an intellect and a compassionate legal advocate. She is a Columbia Law graduate, a mother of three kids and a co-author of two legal books In Our Defense: The Bill of Rights in Action and The Right to Privacy. While the “Kennedy dynasty” motif could be a negative – as it played out in Kennedy’s push for former Sen. Hillary Clinton’s seat – it also has its upsides.  For example, her uncle Sen. Kennedy has many, many friends in the US Senate and in the Judiciary (ie Hatch) and it might make for easier sailing in the confirmation battle.  Finally, Kennedy is young (51) and could provide a historic counter-weight to a Roberts Court that has attempted to build on the Scalia/Thomas foundation and make a firm shift to the right.

While I am not fully convinced, I have added her to our list of the top 15 possible SCOTUS nominees (replacing Gov. Patrick).

Obama to Begin Filling Vacancies on Circuit Courts of Appeal

The New York Times is reporting that President Barack Obama is expected to name his first candidate to an appeals court seat this week: David F. Hamilton, a federal trial court judge from Indiana, for the 7th Circuit, based in Chicago.

Judge Hamilton, who is said by lawyers to represent some of his state’s traditionally moderate strain, served as counsel to Senator Evan Bayh when Mr. Bayh was the state’s governor; he is also a nephew of former Representative Lee H. Hamilton of Indiana.

A senior administration official said Judge Hamilton would have the support of both Mr. Bayh, a Democrat, and the state’s other senator, Richard G. Lugar, a Republican. He will be nominated for a seat on the United States Court of Appeals for the Seventh Circuit, based in Chicago.

The administration official said part of the reason for making the Hamilton nomination the administration’s first public entry into the often contentious field of judicial selection was to serve “as a kind of signal” about the kind of nominees Mr. Obama will select. The official spoke on the condition of anonymity because the nomination had not been officially made.

The White House is planning to announce a handful of other candidates over the next few weeks to fill some of the 17 vacancies on the appeals courts, which are just below the level of the Supreme Court. On most of the 12 regional appeals courts, including on the Seventh Circuit for which Judge Hamilton has been nominated, a majority of the sitting judges were appointed by Republican presidents.

This likely means that an appointment to fill the vacancy for the Rhode Island seat on the First Circuit Court of Appeals will be announced “over the next few weeks.”  The Providence Journal reported last month that at least five people expressed their intent to Sen. Jack Reed’s office to be considered for the First Circuit or the District Court vacancy:

• U.S. District Judge William E. Smith
• U.S. District Magistrate Lincoln D. Almond
• Superior Court Judge O. Rogieree Thompson
• former state Supreme Court Justice Robert G. Flanders
• Providence lawyer Samuel D. Zurier.

Another candidate who is surely being considered is US District Court Chief Judge Mary M. Lisi, who was appointed by President Bill Clinton in 1994 and who was profiled in Rhode Island Monthly here.

For his appointments, President Obama is also showing a different style and process than former President Bush:

By naming judges one at a time, Mr. Obama is taking a markedly different approach from former President George W. Bush, who held a ceremony on May 9, 2001, in the Rose Garden to present his first 11 choices for appeals court seats. The ceremony provided a political air to the nominations, most of which went to prominent conservatives.

The Obama administration has also restored the longstanding role of the American Bar Association in reviewing nominees before they are publicly announced. Mr. Bush reduced the group’s role after it earned the enmity of conservatives for its negative reviews of two Republican nominees for the Supreme Court.

The Wall St. Journal has more on the possible Hamilton appointment here.

No More “Enemy Combatants”

Great news from the ACS blog:

The Obama administration has announced that it will no longer detain terrorism suspects as “enemy combatants.” The term had been applied by Bush administration officials to prisoners detained indefinitely without the rights extended to criminal defendants by the Constitution or those covering prisoners of war under the Geneva Conventions.

In a memo filed with the District Court for the District of Columbia, the Department of Justice (DOJ) stated that it “is refining its position with respect to its authority to detain those persons who are now being held at Guantanamo Bay.” Rather than relying solely on the executive’s authority as commander in chief, as had been done under President Bush, the DOJ premised its detention authorities on Congress’s 2001 Authorization for the Use of Military Force and “principles of the laws of war.”

As pointed out by The BLT, the new legal framework is spelled out on page three of that memo:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed force.

In premising its authority on powers granted by Congress and the laws of war, the Obama administration may be attempting to draw a bold line between its policies and the unitary executive theory adopted by the Bush administration to expand presidential authority.

A separate declaration by Attorney General Eric Holder – a former ACS Board Member – is available here. The DOJ press release is here.

The Joy of Winning

Surrounded by a group comprised of 30 members of Congress (including Jim Langevin pictured here) and 10 Nobel Laureats, President Barack Obama offers remarks and then signs the Stem Cell Executive Order and Presidential Memorandum on Scientific Integrity in the East Room of the White House on Monday, March 9, 2009. White House Photo by Chuck Kennedy.