A Conservative Activist Judge Strikes at Healthcare Reform

On Monday Judge Henry Hudson ruled in favor of  Virginia's Attorney General Ken Cuccinelli by agreeing that the Individual Mandate was Unconstitutional. This is an interesting ruling since two other judges have already dismissed the claims. His argument was that the Individual Mandate went passed what was intended in the Commerce Clause.  This ruling is pretty radical on all fronts. Not even conservative lawyer thought it was possible for this denial. George Washington University Law Professor Orin Kerr from the Volokh Conspiracy, claims that, "Given that existing Supreme Court caselaw gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson’s error leads him to assume away as a matter of “logic” what is the major question in the case." The statement by Kerr argues that with prior caselaw argues that if the Commerce Clause does not cover a law, that the Necessary and Proper Clause usually covers most laws of that magnitude.

Now the question that should be asked if a Conservative Lawyer like Kerr argued that Hudson made a mistake in his ruling, why did Hudson make this ruling? Talking Points Memo via Gawker  found information that Hudson had ties to  Campaign Solutions (a Conservative Public Relations Firm) that helped Congressional Republicans fight the Healthcare bill. Notable Congressional Republicans that used Campaign Solutions were future House Speaker John Boehner, Michelle Bachmann, John McCain, and Virginia's Attorney General Ken Cuccinelli.  John Boehner and Michelle Bachmann were extremely against the Healthcare bill, and Ken Cuccinelli from the state side has been leading a crusade against the Healthcare bill.  Overall Hudson was profiting from the idea of being against the Healthcare bill.

Now here comes the legal problem that arises from Hudson's ruling. We are not going to get into the specifics of the Commerce Clause or the Necessary and Proper Clause, because that is extremely higher than our pay grade, but we will look at if Judge Hudson should have recused himself  from this case. Reason's for recusing yourself from a case mainly are based if it is thought that the judge may show impropriety to a certain issue. What sort of impropriety should you avoid? The Federal Judicial Center has a list of the five basic canons that every judge should abide by. They are listed below.
The Code of Conduct for Judicial Employees provides as follows:

Canon 1: A judicial employee should uphold the integrity and independence of the judiciary and of the judicial employee’s office.

Canon 2: A judicial employee should avoid impropriety and the appearance of impropriety in all activities.

Canon 3: A judicial employee should adhere to appropriate standards in performing the duties of the office.

Canon 4: In engaging in outside activities, a judicial employee should avoid the risk of conflict with official duties, should avoid the appearance of impropriety, and should comply with disclosure requirements.

Canon 5: A judicial employee should refrain from inappropriate political activity

From my reading of the Canons, I can tell there are three Canon's that Judge Hudson broke. It would be Canon 2, Canon 4, and Canon 5. Canon 2 was broken by Hudson when he took a case knowing that he had financial ties to the outcome of this case. Canon 4 was broken when he received his share of the profits from Campaign Solutions, a PR firm helping Republicans to stop healthcare reform, and did not see that as a conflict of interest and did not recuse himself from the case. Canon 5 is more difficult to argue, but if you look at a line taken from Judge Hudson's memoir and quoted in the Virginia Lawyer Weekly December 3, 2007 issue you find the evidence to support this claim. Hudson is quoted in saying,
 

“Campaigning for a federal judgeship is almost as challenging as running for political office,” he writes. “Rather than court voters, aspirants solicit endorsements from influential political activists with close ties to the senators, particularly the activists who raise the big money.


“That is where 20 years of active service to the Republican party, and helping in the various campaigns of each senator, paid dividends and gave me the edge[.]”

This a clear argument that Hudson thinks being a judge is just as important of a job dictating legislative policy similar to a Congressional Representative. That train of thought breaks Canon 5.

Overall, Judge Hudson overstepped his bounds as a judge. He did not give an impartial ruling, or recuse himself from the case because of the huge conflict of interest he had with the case. Also, he did not take into account of the other rulings by the other Federal judges who already ruled against the plaintiffs, which upheld the current healthcare law. To say the actions by Judge Hudson were based on legal scholarship is wrong when some of the best conservative legal minds disagreed with him. Only one logical conclusion can be made that his ruling was a pure political ruling. Judge Hudson did not look at past caselaw, but decided to blaze a new trail with his legal decision.