Breaking news from Ann Woolner at Bloomberg: Judge Henry Hudson, the judge that ruled Obamacare partially unconstitutional (see previous post), has some political dealings in his past, and some business dealings in the present:
Hudson acknowledges his partisan history, and there’s nothing unusual in political work leading to the federal bench. George W. Bush nominated him in 2002.
But he has something more than the usual political connections.
For the past 13 years, he has held an investment in a Republican political consulting firm, which pays him dividends every year.
Campaign Solutions Inc. gave him $5,000 to $15,000 in 2009, as it had in 2008, according to his latest financial- disclosure reports, which only specify ranges for the amounts. Those were especially good years for advisers to Republicans. In all, over the past seven years since he has been reporting, Hudson’s dividends from the firm were $12,000 to $38,000.
Astounding! Judges are usually also politicians? And possibly even investors in businesses that operate in the political arena? Say it ain’t so!
Woolner believes Judge Hudson should have recused himself from the case because of his investment in a Republican political consulting firm, as if the consultancy would benefit by his ruling one way or another. That’s quite an inference. It’s not even clear which ruling–constitutional or unconstitutional–would maybe, sort of, possibly, impact the profitability of the political consultancy. Don’t political consultants and operatives do better when their side is out of power? Rush Limbaugh didn’t really gain traction until Bush I lost to Clinton, and lost relevance when Bush II was elected. In that regard, wouldn’t a ruling that the law passed constitutional muster have been more likely to benefit a political consultancy for Republicans that wish to see the law overturned?
Of course judges are politicians. State court judges in states that elect judges (such as mine) are consummate politicians. They have to be. And they can accept donations from lawyers and parties that may one day appear before their court without fear of being recused (a damn sight more biasing than very limited (1%) ownership in a political consultancy six or so degrees of separation from the judicial process). About the best can be hoped is that elected judges take about the same amount of money from both sides of the political aisle, so they’ll then be “biased” to judge cases on their merits. All a lawyer can do is
bribe donate to them all, and hope for the best.
Unlike many state court judges, federal judges can retire from politics upon appointment to the bench. Once seated, they can’t be held to account for whatever activism they engaged in or beliefs they held in order to get the appointment. The appointing politician always risks finding out later that the judge has discovered a new view of things from his perch behind the gavel, and there’s nothing can be done about it, shy of judicial conduct justifying impeachment.
Woolner claims to want her judges to decide cases free of political bias, yet Woolner is a political operative/opinionater herself that has chosen a remarkably irrelevant detail to try and impeach an opinion with which she politically disagrees by accusing the judge of the appearance of bias. She wishes to be naive or insightful about the political reality of judicial opinions, as it suits her.
Here’s the deal, which Ms. Woolner undeniably understands: Law and its adjudication are inherently political. There is no formulaic method available for removing political considerations from legal issues, because law is nothing more or less than the expressed political will of the society formulating it. This is particularly so in constitutional matters as the constitution expresses more just a philosophy of law and governance, not a statutory explication of permissible and impermissible behaviors. There is always play in the joints of the constitution for whatever policies the society wishes to pursue.
Ms. Woolner needs to quit with her disingenuous pretense of shock and grow up. Judges are necessarily political and she knows it.