Category Archives: National Politics

Symposia: Money and Politics – Unholy Alliance or Free Speech? The Aftermath of Citizens United

Money and Politics – Unholy Alliance or Free Speech? The Aftermath of Citizens United

WHEN: April 25, 2013 7:00 pm

WHERE: Johnson & Wales University Yena Center Admissions Presentation Room 111 Dorrance Street Providence, RI

SPONSORS: ~Federal Bench/Bar Committee of the RI Bar Association ~The United States District Court for the District of RI ~Johnson & Wales University

Parking: Provided by Johnson & Wales University at its Pine Street parking lot, adjacent to Gaebe Commons. This flyer must be presented to the parking attendant.

The United States Supreme Court’s decision in Citizens United dramatically transformed the landscape of campaign finance and has sparked an impassioned national debate over money and elections. A rising tide of campaign spending, the emergence of Super PACs, the growth of undisclosed funding… Some observers view these developments as affirming the American tradition of rough and tumble speech and the free market of ideas. Others see looming corruption and a threat to the integrity of our political process.

Join us for an examination of the critical issues that have emerged from the sweeping changes wrought by Citizens United . How has Citizens United changed campaigns and campaign financing? What effects has it had on the political process? And what does it mean for future elections?


ANTHONY CORRADO is Professor of Government at Colby College, where he teaches American politics and political theory. Widely regarded as one of the nation’s leading experts on political finance, Dr. Corrado is a Nonresident Senior Fellow of the Brookings Institution and serves as Chair of the Board of Trustees of the Campaign Finance Institute. He has authored or coauthored a number of books on campaign finance and elections.

PAUL S. RYAN is Senior Counsel at the Campaign Legal Center in Washington, D.C. Mr. Ryan has testified as an expert on election law before Congress and regularly represents the Campaign Legal Center before the Federal Election Commission and before state and municipal bodies around the nation. He has appeared as a campaign finance law expert on national news programs, and is quoted regularly by The New York Times, The Washington Post and other publications.


MATTHEW T. OLIVERIO , a founding partner of Oliverio & Marcaccio LLP in Providence, concentrates in complex, civil and comm ercial litigation in state and federal courts in Rhode Island and Massachusetts. He is regularly engaged by members of the bar to serve as an arbitrator.

STEVEN M. RICHARD practices comm ercial and civil litigation in the Providence office of Nixon Peabody LLP. Mr. Richard handles trial and appellate work in federal and state courts in Rhode Island, Massachusetts, and Connecticut. He Co-Chairs the District Court’s Local Rules Review Committee and the Planning Committee for the Court’s 2013 District Conference.

President Obama Re-nominates 33 for Federal Judgeships

In the face of unprecedented obstruction, today, President Obama re-nominated thirty-three individuals who he previously nominated for federal judgeships in the 112th Congress.

“Today, I am re-nominating thirty-three highly qualified candidates for the federal bench, including many who could have and should have been confirmed before the Senate adjourned,” said President Obama.  “Several have been awaiting a vote for more than six months, even though they all enjoy bipartisan support.  I continue to be grateful for their willingness to serve and remain confident that they will apply the law with the utmost impartiality and integrity.  I urge the Senate to consider and confirm these nominees without delay, so all Americans can have equal and timely access to justice.”


  • Judge Robert E. Bacharach:  Nominee for the United States Court of Appeals for the Tenth Circuit
  • Caitlin Halligan: Nominee for the United States Court of Appeals for the District of Columbia Circuit
  • William J. Kayatta, Jr.:  Nominee for the United States Court of Appeals for the First Circuit
  • Jill A. Pryor:  Nominee for the United States Court of Appeals for the Eleventh Circuit
  • Judge Patty Shwartz:  Nominee for the United States Court of Appeals for the Third Circuit
  • Srikanth Srinivasan: Nominee for the United States Court of Appeals for the District of Columbia Circuit
  • Richard Gary Taranto:  Nominee for the United States Court of Appeals for the Federal Circuit


  • Judge Elissa F. Cadish: Nominee for the United States District Court for the District of Nevada
  • Valerie E. Caproni: Nominee for the United States District Court for the Southern District of New York
  • Judge Sheri Polster Chappell:  Nominee for the United States District Court for the Middle District of Florida
  • Pamela Ki Mai Chen:  Nominee for the United States District Court for the Eastern District of New York
  • Judge Brian J. Davis: Nominee for the United States District Court for the Middle District of Florida
  • Shelly Deckert Dick:  Nominee for the United States District Court for the Middle District of Louisiana
  • Jennifer A. Dorsey:  Nominee for the United States District Court for the District of Nevada
  • Katherine Polk Failla:  Nominee for the United States District Court for the Southern District of New York
  • Kenneth John Gonzales:  Nominee for the United States District Court for the District of New Mexico
  • Andrew Patrick Gordon:  Nominee for the United States District Court for the District of Nevada
  • Ketanji Brown Jackson:  Nominee for the United States District Court for the District of Columbia
  • Rosemary Márquez:  Nominee for the United States District Court for the District of Arizona
  • Judge Michael J. McShane:  Nominee for the United States District Court for the District of Oregon
  • Raymond P. Moore: Nominee for the United States District Court for the District of Colorado
  • Judge Troy L. Nunley: Nominee for the United States District Court for the Eastern District of California
  • Judge Beverly Reid O’Connell: Nominee for the United States District Court for the Central District of California
  • William H. Orrick, III: Nominee for the United States District Court for the Northern District of California
  • Judge Nitza I. Quiñones AlejandroNominee for the United States District Court for the Eastern District of Pennsylvania
  • Judge Luis Felipe Restrepo:  Nominee for the United States District Court for the Eastern District of Pennsylvania
  • Judge Nelson Stephen Román:  Nominee for the United States District Court for the Southern District of New York
  • Judge Jeffrey L. Schmehl:  Nominee for the United States District Court for the Eastern District of Pennsylvania
  • Judge William L. Thomas:  Nominee for the United States District Court for the Southern District of Florida
  • Judge Analisa Torres:  Nominee for the United States District Court for the Southern District of New York
  • Derrick Kahala Watson:  Nominee for the United States District Court for the District of Hawaii


  • Mark A. Barnett: Nominee for the United States Court of International Trade
  • Claire R. Kelly: Nominee for the United States Court of International Trade

Sen. Sheldon Whitehouse & Others to Address “The Politics and Process of Judicial Confirmations”

The Rhode Island Lawyer Chapter of the American Constitution Society and Common Cause Rhode Island present:

The Politics and Process of Judicial Confirmations

The political process of judicial nominations can be puzzling. In recent years, the confirmation process often has bogged down and become more contentious with the result that many judicial vacancies in federal courts have remained unfilled for lengthy periods of time. Our distinguished panel will attempt to demystify the process, giving an insiders’ perspective on nomination hearings, the political struggles behind them and the details of the process in general.

With an address by:

The Honorable Sheldon Whitehouse
Senator (D-RI), United States Senate


  • The Honorable Ernest C. Torres, Senior Judge, U.S. District Court for the District of Rhode Island
  • David Fontana, Associate Professor of Law, The George Washington University Law School
  • Jared A. Goldstein, Professor of Law, Roger Williams University School of Law
  • Emily J. Sack, Professor of Law, Roger Williams University School of Law

And moderated by:

  • Michael J. Yelnosky, Professor of Law, Roger Williams University School of Law

Monday, November 8, 2010
Reception: 6:00 p.m.
Program: 6:30 p.m.
The University Club of Providence
219 Benefit Street
Waterman Room
Providence, RI

This event is free of charge.

Hors d’oeuvres and beverages will be provided.

Please note that attire is business casual. Men are required to wear collared shirts, and no denim is allowed.

BP the Exception? New Report Details Corporate Evasion of Environmental Laws

At the Huffington Post, Anthony Tarricone, president of the American Association for Justice, wrote, “Unfortunately, it is only through disaster or tragedy when people begin to understand why a strong civil justice system is so necessary.”

As “the devastation from BP’s oil rig disaster grows, today the American Association for Justice released a new report detailing how corporations have evaded environmental laws for decades, only to later be held accountable and responsible for clean-up through the civil justice system.”

Given “the history of corporate behavior in the wake of such disasters, it is clear trial attorneys and the civil justice system will play a vital role in holding BP accountable and helping to return the Gulf to the state it once was.”

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.”

Sen. Sheldon Whitehouse Condemns Citizens United in Politico

Writing in Politico, Rhode Island’s junior Senator Sheldon Whitehouse, passionately criticizes the recent SCOTUS decision in Citizens United.

The Supreme Court’s recent slim majority decision in Citizens United has opened floodgates that long prevented corporate cash from drowning out the voices of American citizens in election campaigns. Those who care about the integrity of the American political process view this decision with concern and astonishment.

The Senate Judiciary Committee will hold a hearing about this misguided decision Wednesday. The ruling continues an increasingly clear pattern of the court’s activist conservative bloc. First, decisions are by a narrow 5-4 majority. Second, decisions overrule well-established law and well-settled precedent. Third, the outcome favors corporations, the rich and the powerful.

The Constitution has long been understood to allow Congress to protect elections from the corrupting influence of corporate cash. As President Barack Obama has observed, the principle embodied in the 1907 Tillman Act — that inanimate business corporations, creatures of our laws, are not free to spend unlimited dollars to influence election campaigns — has been an established cornerstone of our political system for more than 100 years.

The five-justice conservative bloc of the Supreme Court tossed that principle aside, baldly denying any risk of election corruption, despite numerous congressional findings to the contrary. As my colleague Sen. Chuck Schumer (D-N.Y.) has said: “The Supreme Court [has] predetermined the winners of next November’s elections. It won’t be Republicans. It won’t be Democrats. It will be corporate America.”

I look forward to working with Schumer to limit the harmful effects of the Citizens United opinion: to prevent foreign corporations from influencing U.S. elections; to ban pay-to-play spending by government contractors; to strengthen disclosure laws that ensure voters know who is funding the ads they see; and to enhance corporate disclosure of election spending.


Elections are the lifeblood of democracy. The U.S. Constitution is established by and for “We the People of the United States.” Humans are clearly different from artificial corporations. And nothing in the Constitution gives CEOs the right to amplify their voices over all of ours through the corporations they control.

The activist conservative bloc, currently driving the court to the right, does not seem to appreciate this foundational, common-sense principle of our republic — at least not when corporate interests are concerned.

The court should return to its proper role of providing justice to all Americans, not just the privileged few.

Well done, Senator.  Well done.

RI Political Earthquake: Rep. Patrick Kennedy Not Running for Re-election?


Shocking news from WRNI that Congressman Kennedy will not be seeking re-election.

Who’s going to run for the open seat?

Congress: “They’re in”

Congress: “They’re seriously considering it.”

  • Rep. David Segal – Young, aggressive, progressive with a broad base of support.  Can run as the outsider and the reformer.
  • Donna Nesselbush – Private practice attorney, municipal judge in Pawtucket and former executive director of the RI Coalition Against Domestic Violence.
  • Mayor Dan McKee – A source close to McKee tells me that the Cumberland Mayor is leaning toward running as people he trusts have gamed out a path to victory that’s convincing to him. He’s heading to D.C. early next week to discuss national fundraising through the Democrats for Education Reform network. McKee’s previous comments about running to the Journal are here.
  • Rep. Jon Brien – DINO and worst candidate of the bunch.

Congress: They’re Out

  • Former Rep. Bob Weygand – former Congressman and URI executive.
  • Councilman Seth Yurdin – Progressive elected official with a base on Providence’s East Side.
  • State Sen. Josh Miller – small business owner and environmental champion.  Could raise money quickly.
  • Rep. Edith Ajello – represents powerful East Side.
  • Former State Sen. Myrth York – Money and name recognition.
  • Jeremy Kapstein – senior adviser to the Red Sox has been making waves lately about running for office in RI.
  • Joseph Amaral – former hospital executive.
  • Former Lt. Gov. Charlie Fogarty – former lt. governor and 2006 democratic gubernatorial nominee.  lots of name recognition.
  • Ari Matusiak – Housing and health care advocate; ran statewide housing ballot initiative; ability to raise fast money.
  • Guillaume de Ramel – unsuccessful Secretary of State candidate in 2006, but got a large number of votes.
  • Nicholas Pell – grandson of Claiborne Pell.  His comments about running are here. He issued a statement on 2/23 that he is not running.
  • Rep. Ed Pacheco – young, aggressive progressive who has proven he can win over conservative voters in Burrillville.  His comments about running to the Journal are here. He issued a statement on 2/22 that he is not running.
  • Sen. Teresa Paiva-Weed – it would be skeptical that the Senate President would give up her job to run in a primary for Congress, but she certainly has name recognition and the ability to raise money. More here.
  • Sec. of State Ralph Mollis – current Secretary of State considering a look at Congress.
  • Lt. Gov. Elizabeth Roberts – with Emily’s list, could win a divided primary.
  • Former Rep. Betsy Dennigan (already has a federal account) – moved from CD1 to CD2 to run against Langevin.  Does she move back? She emailed me and said shes in it to win it in CD=2.
  • Treasurer Frank Caprio – A Caprio campaign spokesperson called and said that there is no chance that Caprio will be running for Congress — he is running for Governor.
  • Attorney General Patrick Lynch – A Lynch campaign spokesperson writes and says to take Lynch’s name off the list because he is “definitely running for Governor.”
  • Gina Raimondo – currently running for Treasurer, but could raise fast money for Congressional bid. She’s definitely running for Treasurer.
  • Kate Coyne-McCoy – In CD-2. She’s staying at EM.


and, even with the candidacy of Republican John Loughlin already announced, watch out for the entrance of conservative Republican former US Senate…

  • Former Cranston Mayor Steve Laffey
Providence Mayor: Names in the Rumor Mill
  • Angel Taveras – has a great story: from Head Start to Harvard.  Ran for Congress in 2000 in his first election bid and won an impressive number of votes.  Can build the East Side / South Side coalition that Cicilline used to win in 2002.
  • Myrth York – need I say more?
  • Rep. Steve Costantino – currently House finance chair, looking at a run for Treasurer; might instead look to Congress or Mayor (if Cicilline runs).
  • Rep. David Segal – young, aggressive, progressive with a broad base of support.
  • Councilman Michael Solomon – represents large turnout Ward 5; small business owner.
  • Sen. Juan Pichardo – has mayoral ambitions.
  • Councilman John Lombardi – already has a website up and running.  Only 50k in the bank though.
  • John Kelly – ran and lost in the HD-10 special election to Scott Slater.
  • Andrew Annaldo – the current Board of Licenses chairman is rumored to be thinking about putting a significant amount of money into the race.
  • Ari Matusiak – Housing and health care advocate; ran statewide housing ballot initiative; ability to raise fast money.
  • Councilman Terry Hassett – Smith Hill councilman and current majority leader.
Note that candidates are unable to transfer (possible large amounts of) money from their state campaign account to a federal campaign account.

Click here to see the video that Congressman Kennedy sent out to his email list.

The following is Congressman Jim Langevin‘s statement:

“Patrick Kennedy is a dear friend and colleague whom I have been proud to work with for many years, since we were first elected together in 1988. From our days in the General Assembly to our years in the halls of Congress, it has been an honor to work with him on behalf of the people of Rhode Island.

“Patrick is a true public servant and passionate fighter who made a real difference for the people of our great state. As with all things, there is a beginning and an end.  I wish him well as he takes on a new beginning in his life. I will miss advocating for Rhode Island with him in the United States Congress, but I know he will continue to serve our nation as he has for two decades.”

And click here to read Mark Arsenault’s exclusive interview with Congressman Kennedy in RI Monthly explaining his decision.

Report: Medical Error Leads to Congressman Murtha’s Death

While various news outlets have described the death of Congressman John Murtha’s (D-PA) as resulting from “complications following gallbladder surgery,” the Pittsburgh Post-Gazette is reporting that the “complications” involved an error by Murtha’s surgeons.

Mr. Murtha was first hospitalized with gallbladder problems in December. He had surgery Jan. 28 at the National Naval Hospital in Bethesda, Md. He went home, but was hospitalized two days later when complications developed. According to a source close to Mr. Murtha — confirming a report in Politico — doctors inadvertently cut Mr. Murtha’s intestine during the laparoscopic surgery, causing an infection.

Congressman Murtha is not alone.  The Institute of Medicine estimates that 98,000 people die each year in the US from preventable medical errors. And, this number does not even include the countless other people who are injured by medical errors. Rather than reforming the legal system that provides protections to these injured patients, we must focus on reforming the medical system in this country to prevent these errors from ever happening in the first place.

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:


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.

Senate Judiciary Scheduled to Vote on Nomination of Rogeriee Thompson to First Circuit

The Providence Journal reports that Rhode Island Superior Court Associate Justice O. Rogeriee Thompson’s nomination to the federal appeals court in Boston is scheduled for a vote today in the Senate Judiciary Committee.

“She didn’t receive a great ABA rating,” Alabama Sen. Jeff Sessions, the panel’s ranking Republican, said shortly before the Senate went on its year-end break. “But I don’t consider that dispositive. I’d like to be able to support her. I hope I will be able to support her.”

The committee’s majority Democrats, including Chairman Patrick J. Leahy of Vermont and Sen. Sheldon Whitehouse of Rhode Island, strongly back Thompson, so a bipartisan vote of support could portend good prospects for full Senate confirmation of her nomination to the U.S. Court of Appeals for the First Circuit.

This vote comes on the heels of an incredibly positive hearing in Senate Judiciary for Judge Thompson.

Update:  Great news.  The Providence Journal reports that the Committee – without any dissenting votes – voted to send Judge Thompson’s nomination to the full Senate for confirmation.

Trial Lawyers Seek to Get the Facts Out on Health Care Reform and Medical Malpractice

The American Association for Justice has bought up all the advertising space at Union Station in Washington D.C. to remind the political decision makers that 98,000 people die each year from preventable medical errors.  Both Politico and the Wall St. Journal have stories on the campaign.  Click here to see photos of the advertising blitz.

Here’s AAJ’s president Anthony Tarricone:

In our continued efforts to protect the rights of patients, today, we launched a new ad campaign in the Union Station metro in Washington, DC, targeting Senate staffers commuting to work.

The station has over 30 spots for ads, including billboards, banners and lightboxes. All the ads on the platform include stories of people who have been injured by medical negligence, with other messages displayed throughout the station. It directs readers to visit, where they can view reports, fact sheets, and stories of real people injured by medical negligence.

Click here to learn the facts on medical malpractice and health care reform.

Rhode Island U.S. Attorney Peter Neronha named to Attorney General’s Advisory Committee

Attorney General Eric Holder today announced the appointment of Rhode Island U.S. Attorney Peter F. Neronha and eight other U.S. Attorneys to the Attorney General’s Advisory Committee (AGAC).  The committee provides advice and counsel to the Attorney General on policy, management, and operational issues affecting the Offices of the U.S. Attorneys.  The appointments are for two-year terms.

“This is a critical and exciting time for the Department of Justice and I will rely heavily on these U.S. Attorneys as we work to further the Department’s efforts to reduce violent crime and gang violence, promote civil rights, ensure fairness in the marketplace and above all, preserve our national security,” said Attorney General Holder.

“I am honored to be named to the AGAC and to bring the voice of federal prosecutors and the concerns of Rhode Islanders to the Attorney General,” U.S. Attorney Neronha said.  “I look forward to working with my colleagues over the next two years.”

The other appointees are:  U.S. Attorney for the Southern District of New York Preet Bharara; U.S. Attorney for the District of Arizona Dennis Burke; U.S. Attorney for the Western District of Washington Jenny Durkan; U.S. Attorney for the District of New Jersey Paul J. Fishman; U.S. Attorney for the Northern District of Illinois Patrick J. Fitzgerald; U.S. Attorney for the Eastern District of Virginia Neil H. MacBride; U.S. Attorney for the Northern District of Alabama Joyce White Vance; and Acting U.S. Attorney, ex officio, for the District of Columbia Channing D. Phillips.

ABA Fails to Give Unanimous “Qualified” Rating to Judge Thompson’s Nomination

This weekend, the Providence Journal reported the disappointing news that the ABA’s Standing Committee on the Federal Judiciary did not give a unanimous “qualified” rating in regards to the nomination of Superior Court Associate Justice O. Rogeriee Thompson to the First Circuit Court of Appeals.

A majority of the 15 members of the committee gave Judge Thompson a “qualified” rating, but, for some unknown reason, the vote was not unanimous.  The reason for the vote not being unanimous will not come to light until Judge Thompson’s nomination goes before the Senate Judiciary Committee: a committee on which sits one of Judge Thompson’s biggest supporters – Sen. Sheldon Whitehouse.   And, while this speed bump in the nomination process may give ammunition to some Republicans to attempt to derail Judge Thompson’s nomination, her strong track record as a seasoned trial court judge has the support of the White House and Rhode Island’s two US Senators.

…The president made the nomination knowing the committee’s rating, according to committee practice, and continued to back Thompson this week. “The White House strongly supports Judge Thompson’s nomination to the first circuit and remains confident the Senate will support her nomination as well,” a White House official said in a statement to The Journal.

The committee’s work is highly confidential and considered to be an independent, non-partisan evaluation of a nominee’s fitness for the bench. It does not reveal the reasons behind its ratings or how votes were cast. A written statement only becomes public if the committee is asked to present its findings to the Senate Judiciary Committee, as is the case whenever any committee members rate a nominee not qualified, Steigerwalt said. Thompson will also get the opportunity then to say why she is qualified for the seat.

…Of the 272 nominees between 1985 and 2006, only 31 received split ratings of qualified and not qualified and only one was deemed not qualified altogether, according to Steigerwalt. Twenty-three were confirmed despite the split ratings, she said.

One of the judges to receive a split rating is Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals in Chicago, a highly esteemed judge. That rating, in the 1980s, won the committee criticism as left leaning.

I agree with another attorney blogger – Brassband at – that Judge Thompson’s two decades of experience as a state trial court judge will greatly benefit the First Circuit.  I join him in hoping that the Senate goes about its business quickly and confirms Judge Thompson’s nomination.

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.

Pfizer agrees to $2.3 billion drug-marketing settlement

Yesterday, the United States government hit Pfizer, the world’s largest drugmaker, with a record $2.3 billion in fines for violating federal drug marketing rules.  Among other things, Pfizer was accused of promoting the pain medication Bextra [valdecoxib] for unapproved uses. The penalties came from admitting that the painkiller Bextra and 12 other drugs were promoted for what’s known as off-label use, which the FDA says put public health at risk in the process.

It was reported that Bextra became a top-seller, bringing in $1.2 billion a year, as sales reps assured doctors it could be used not just for arthritis, but for any acute pain. The main whistleblower, a former company sales rep, said in a statement, ‘at Pfizer, I was expected to increase profits at all costs, even when sales meant endangering lives. I couldn’t do that.'” Meanwhile, “in exchange for hearing company sales pitches, doctors were paid up to $1,500 to attend meetings, and were treated to conferences at lush resorts, given air fare, hotels, meals, even massages

“The Justice Department described Wednesday’s settlement as the largest in its history,” according to the Los Angeles Times. “The settlement reflects an emphasis by the Obama administration on holding US healthcare corporations accountable for their activities, especially in trying to market drugs to patients and doctors for uses that have not been approved, Justice Department officials and legal experts said.”