From the Health Care Ruling to Advice and Consent

After thinking about Judge Hudson's decision in Sebelius for some time, there was something still gnawing at me, something I couldn't quite figure out. The case itself is uneventful, as far as the legal particulars are concerned. For a judge appointed by a Republican President -- and not just any Republican President, but George W. Bush -- to side against any part of a health care bill signed into law by a Democratic President should surprise no one.

And yet, we as a politico-legal community seem either surprised or else, depending on one's point of view, relieved that the judge would decide as he did. I have in mind here a quote from Randy Barnett, professor of law at Georgetown University. It went something like this: “All the insiders thought it was a slam dunk,” . . . “Maybe a slam dunk like weapons of mass destruction were a slam dunk.” The Times reporter similarly wrote that the many challenges to the law could "no longer be dismissed as frivolous, as they were earlier this year by some scholars and Democratic partisans." This is clearly a theme of the ruling, as a different Times reporter similarly wrote that "the ruling was nonetheless striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous.

This struck me then, and still strikes me now, as simply nonsensical. This is especially so in light of everything we know about Judge Hudson and his politics as well as the arguments he made. Frivolity -- or lack thereof -- is the order of the day. Jack Balkin has a terrific response to this push on the part of Barnett and others to legitimize the commerce clause argument at the heart of Judge Hudson's ruling.

But this still didn't quite get at what wasn't quite right about the case and our responses to it. And then this occurred to me. What if, instead of Judge Hudson, the judge in the case were none other than Judge Judge Dick Cheney, or, even worse, Judge Limbaugh or Judge Beck. It may be that our reactions would still be the same. It may be, that is, that congressional Republicans would feel emboldened by such a ruling and renew their attacks on the law all the same, and that political support for the law would still destabilize as a result of the ruling. Who knows.

I suspect as much. Irrespective of the identity of the judge, the reactions would not change one bit. For support, one need to look no further than the mother of all activist decisions, Bush v. Gore. This was a case where the law took a backseat to pragmatic considerations and the short term goals and ideologies of the justices. What we knew as a practical reality meant little in the real world. President Bush went on to govern as if nothing unseemly had happened, and we were told to move on and "get over it."  The same would be true after a health care ruling striking down the law en toto, by a Judge Glenn Beck, even if every single law that had ruled on the question had upheld its constitutionality.

This must mean, in sum, that the confirmation process is really that powerful. A conclusion reached by a private citizen can be considered "frivolous," yet legitimate once the same conclusion is reached by the same person once confirmed by the Senate. Put more simply: the decision reached by Judge Hudson was considered frivolous a month ago, yet somehow is no longer frivolous because one federal judge, appointed by a Republican president and with strong ties to the Republican Party, placed it at the heart of his opinion.

The implications could not be clearer. The confirmation process is the end game, the place where legal revolutions are won and lost. This is why nominees need not be smart, or even qualified by whatever standard of one's choice. The nominee just needs to be part of the right team. I don't know much about Judge Hudson, but I know one thing: he is clearly playing for the team that put him in the game.

Consider in this vein today's latest plea by the editors of the New York Times. The crux of their critique boiled down to the following:

The Senate’s power to advise and consent on federal judicial nominations was intended as a check against sorely deficient presidential choices. It is not a license to exercise partisan influence over these vital jobs by blocking confirmation of entire slates of well-qualified nominees offered by a president of the opposite party.

Nevertheless, at a time when an uncommonly high number of judicial vacancies is threatening the sound functioning of the nation’s courts, Senate Republicans are persisting in playing an obstructionist game. (These, by the way, are the same Senate Republicans who threatened to ban filibusters if they did not get an up-or-down vote on every one of President George W. Bush’s nominees, including some highly problematic ones.)

Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate.

In light of the foregoing discussion, I have a completely different reaction to the Republican's delaying tactics decried by the Times. To my mind, the miracle in all of this is that any nominees get confirmed at all.

Judging the Health Care Law

A federal judge in Virginia has fired the first direct salvo against the constitutionality of the health care law, and the debate now rages in the blogosphere. This is a debate largely about the merits of Judge Hudson’s opinion in Virginia v. Sebelius striking down the law’s specific mandate that individuals buy health insurance. To the critics, this ruling is "bizarre," significant error" and invites “mischief,” with parts of the opinion reading “as someone determined to strike the mandate regardless of the force of argument in the way.” According to Jack Balkin, Judge Hudson could only make his case by “dredg[ing] up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.” The argument, Balkin concludes, is “remarkabl[y] weak.”

Critics of the law take the opposite view. To Randy Barnett, for example, the ruling is “a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. According to Peter Wehner, former domestic policy advisor to President George W. Bush, argues that “Judge Hudson’s a serious judge and he has put into words, and into a legal decision, a fairly profound pronouncement, which is that a key element of Obama’s health care plan is unconstitutional, Ilya Somin similarly argues that to uphold the individual mandate “would give Congress virtually unlimited power to mandate anything it wants.” This would be both “dangerous and unconstitutional.”

This is an important debate, and I don't mean to minimize it here.  But to focus on the legal debate would be to miss what is far and away the much more interesting story and its many lessons.