JUDGES, THE MEDIA, AND HEALTH CARE REFORM

The media are making much of the latest decision by a federal judge in Virginia who has ruled that a key part of the new health care reform law requiring people to buy health insurance is unconstitutional. This comes after two previous rulings by other federal judges that the requirement is constitutional. The mandate provision does not go into effect until 2014. But before going further on this heavy subject, a lighter health care story is in order.

Cosmo, a follower of this blog, e-mailed me a story about some House Democrats sending a letter to John Boehner, the presumed next Speaker, and Senate Minority Leader McConnell regarding the hypocrisy of Republicans in opposing health reform legislation. The letter urges the two party leaders to have their fellow congressional Republicans refuse their federal health care benefits on the same grounds they opposed reform legislation. In essence, the letter said that lawmakers, incumbents and incoming, who opposed a public/government option as an alternative to private insurance should give up the government-sponsored plan they have as members of Congress. In short, they accuse Republicans of hypocrisy on the issue of health care reform. The letter must have brought tears to the eyes of the weepy-prone Boehner. But the sad fact is that the Democrats who wrote the letter are correct. Now, the latest judicial ruling.

This is strictly impressionistic and not based on hard data of any kind, but it seemed to me with my biased view on the subject that the ruling on Monday against President Obama got more media attention than the two previous rulings backing him. To repeat the central issue: Can the government mandate that the uninsured buy insurance? The judge on Monday declined to strike down the entire law, just the mandate provision. The judicial score now is "yes" by two federal district judges, "no" by one. My impression of greater media attention to the "no" ruling was partially formed by the appearance of the story in a featured spot on the front page of my local newspaper. I may be wrong, but I don't recall such prominence being given to the previous "yes" rulings. The "no" ruling also got top coverage on network television and in major newspapers.

Aside from the ruling on that part of the law regarding the mandate issue, the media also pointed out that the issue will certainly end up in the U.S. Supreme Court before 2014. But it was some of the political interpretations that were the most interesting. One was that the "no" ruling would "embolden" congressional Republicans in their efforts to repeal all or parts of the new law. To this blogger, it is difficult to see how the ruling will embolden the GOP lawmakers. They were already clearly on record with their views on the unconstitutionality of the mandate, and with so many members of Congress being lawyers, they yield to no one in their presumed knowledge of what the Constitution intends or doesn't intend. The ruling will certainly be cited in GOP repeal arguments, but it will have little effect on the legislative repeal strategy. And with so many legal challenges yet to be decided, the significance of this case escapes me. The reality is that no matter what the final score at the district and appeals court levels, it the final decision of the Supreme Court that matters. Which brings me to judicial ideology, often referred to as philosophy.

The stories I've read are quick to point out which President appointed the judges making the rulings. The two "yes" judges were appointed by President Clinton; the "no" judge was named by President George W. Bush. Thus, no surprises since judges when nominated by a President are presumed to fit within the general ideology and policy preferences of the President. It must be stressed, however, that this is not always true. President Eisenhower said that one of his greatest mistakes was to name Earl Warren as Chief Justice since, as it turned out, Warren came to head a very liberal court which handed down a number of liberal landmark decisions. Despite the exceptions, judicial ideology/philosophy and not a naive belief that judges are neutral interpreters of the Constitution is a major dynamic underpinning judicial rulings. That, of course, is the scarey part of knowing that the Supreme Court will make the final decision. The current court is divided 4 to 4 on the liberal/conservative scale but has tended to lean more often to the right with the swing vote decided by Justice Anthony Kennedy who was appointed by President Reagan in l988. If Kennedy goes with his conservative colleagues on the mandate issue, then a key part of health care reform will be lost.

In sum, there is a long way to go before a final winner can be decided. In the meantime, we can only hope that the media will find a happy medium in reporting and analyzing winners and losers as the process proceeds.