Bush-appointed judge rules for in favor of Healthcare reform

[Crossroads Inc.]

The Right has been strangely silent on this. I guess it's hard to scream "Liberal Activists judge!" when it is a BUSH appointed judge who rules against you.

So far in the legal fight over President Obama's health care overhaul, both sides have had victories and defeats.
Two federal judges, both appointed by Republican presidents, have sided with conservative opponents of the law, ruling that its requirement that almost all Americans buy health insurance is unconstitutional. Three other federal judges, all appointed by Democratic presidents, have sided with the Obama administration, deciding that the law passes muster.

That's why today's news is particularly significant. In a lawsuit brought by a conservative legal center, a three-judge panel of a federal appeals court in Cincinnati ruled in the law's favor. One of the two judges in the majority, Judge Jeffrey Sutton, was appointed by President George W. Bush, and even clerked for Supreme Court Justice Antonin Scalia, the leader of the court's conservative wing. It marks the first time that a judge has ruled against the party that appointed him on the law's constitutionality--as well as the first time an appeals court has ruled on the issue.

"No one is inactive when deciding how to pay for health care," wrote Judge Sutton, rejecting a key argument of the law's opponents. They claim that forcing people to pay a fine for not buying insurance amounts to regulating inactivity, something, they argue, that's not covered as a legitimate target of regulation under the Constitution's Commerce Clause.

The ruling was a victory for the Obama administration, but it could turn out to be short-lived. Nearly everyone expects the dispute ultimately to be resolved before the Supreme Court, and court-watchers say it's difficult to predict which way the justices will rule.

I think the bigger story here is that we have judges who, up till now, seem to vote on "party lines"

[Eulogy]

He deserves some sort of irony award. Sometimes, you have to bite the hand that feeds you, just to make people wake up and see what's really happening in the world.

Hopefully, this is the swift kick in the ass that real reform needs.

[Master of Ossus]

It's not precise enough to say that someone's a "conservative." Liberals do vote very similarly in judicial matters, but conservatives are split between originalists, judges who prefer a judicial restraint model (which usually but doesn't always involve strict constructionism), and those who insist on stare decisis.

National Affairs had a pretty good primer on the issue of the Affordable Care Act and judicial conservativism.

To understand contemporary "judicial conservatism" and its ambiguities, it is helpful to describe it as a series of reactions against the "living Constitution" approach that was employed by the Warren and Burger Courts from the early 1950s to the 1980s. The Warren and Burger Courts handed down many landmark decisions declaring new constitutional rights relating to abortion, compulsory school integration, prayer in schools, the procedural rights of criminal defendants, and the death penalty. According to its critics, the living-Constitution approach reflected in these decisions mistakenly downgraded the original meaning of constitutional text, treated precedent too casually, and encouraged federal courts to usurp the legitimate discretion given to political officers to make sensitive policy judgments.

These three criticisms aligned and overlapped as applied to the Warren and Burger Courts' major decisions. Yet these criticisms do not converge in every case. They diverge especially when the issue is not a new right declared by the Court but an act of Congress that strains the Constitution's structure. In such a case, should a conservative judge invoke the judiciary's power to protect the Constitution's original meaning — or worry that such power forces him to second-guess Congress's political choices?

For my money, it's really hard to see the limits of the Commerce Clause if the healthcare act is constitutional, which I think will be its biggest stumbling block at the Supreme Court level. The article argues that the "conservative" justices might fracture, with only Thomas being a certain vote for unconstitutional (Scalia and Kennedy favor a view of the judiciary which is hands-off; Roberts and Alito going for the "tradition suggests that times have changed" angle, but I think that even the liberal justices will be hard-pressed to explain what it means to limit Congress only to regulating the channels and instrumentalities of interstate commerce, and activities which are substantially related thereto, if this type of Act is deemed constitutional.

[Straha]

I met Sutton in person some years back (just after his nomination when Ted Kennedy called him something like the worst example of judicial conservatism and the most active threat to extant democracy). Really really nice guy, smart and well meaning too.