Civil and Human Rights

Hudson favors govt. power, but not on health care


U.S. District Judge Henry Hudson’s opinion finding a key part of President Barack Obama’s health care law to be unconstitutional delighted libertarians Monday, but belied Hudson’s past history of championing government power in other areas such as criminal justice and prosecuting obscenity.

Hudson, 63, has been known for decades in Virginia as a tough-on-crime prosecutor at both the state and federal levels. Advocating aggressive federal government action in the criminal sphere and limited authority in other areas, such as health care, is not all that uncommon, according to Doug Kendall of the Constitutional Accountability Center.

“I don’t think it’s necessarily inconsistent,” said Kendall. “There is a strain among conservatives that is very tough on crime and pro government in criminal prosecutions and also libertarian-seeming in fighting against the powers of the federal government. I think Clarence Thomas is the classical example. . . It’s not a consistent libertarian position, but it is a consistently conservative position.”

Larry Sabato, a professor of politics at the University of Virginia, said Hudson’s ambition and devotion to Republican politics is well-known around the state–so much so that he’s been repeatedly mentioned as a potential GOP candidate for Congress.

“He’s a conservative Republican and there’s nothing unusual about his (health care) decision–it’s completely predictable,” said Sabato.

“His name was bandied about repeatedly for Congress, for both the House and Senate back in the 80s and 90s,” Sabato said. “I always remember him being identified with conservatives–never in line with the John Warner, moderate [GOP] faction.”

A graduate of American University, Hudson got his start as a staff prosecutor, first in Arlington County, Va. and later in the U.S. Attorney’s Office in Alexandria, Va. He ran for and won the top prosecutor’s post in Arlington in 1979. In that post, Hudson became known as tough on crime–particularly drug crime.

In 1985, Attorney General Ed Meese tapped the up-and-coming Republican star to serve as chairman of a blue-ribbon panel examining the dangers of pornography. On that commission, Hudson took a hard line. He complained that the panel’s final report should have been “couched in more forceful language, and that [its] recommendations for enhanced law enforcement, particularly with respect to violent and degrading materials, [should have been] likewise more pronounced.”

Hudson also faulted the panel for recommending against prosecutions in obscenity cases based on words, rather than imagery.

“I never saw in him a libertarian strain, although some people do change when they have a longtime sinecure in the judiciary,” Sabato said.

Even before the Meese Commission report was released, however, the administration signaled its pleasure with Hudson when President Ronald Reagan nominated him to serve as U.S. Attorney for the Eastern District of Virginia. Hudson stayed in that post for five years and handled the politically sensitive investigation of Sen. Charles Robb (D-Va.).

Hudson later ran the U.S. Marshals Service for a couple of years before moving into private practice. He became a Virginia county judge in 1998 and was nominated to the federal bench by President George W. Bush in 2002. He handled the Michael Vick dog fighting case, sentencing the football star to 23 months in 2007.

In his ruling Monday, Hudson found that the requirement in the new health care law that Americans acquire insurance or pay a penalty–the so-called individual mandate–exceeds the federal government’s power under the Commerce Clause of the Constitution and also can’t be justified under the federal taxing power. Two other federal judges have ruled to the contrary and other legal challenges are still pending.

The White House declined to say Monday whether it thought politics played a role in Hudson’s decision. However, White House Press Secretary Robert Gibbs said the opinion came as no surprise to administration officials, based on earlier rulings and indications from the judge.

In recent months, some supporters of the health care reform law have called attention to a financial link Hudson maintains to the conservative movement. He is an investor in Campaign Solutions, a Republican consulting firm that has provided campaign and fundraising advice to numerous GOP candidates opposed to health care reform.

One of them was Virginia Attorney General Ken Cuccinelli, who brought the health care suit ruled on Monday. Cuccinelli canceled his contract with the firm when Hudson’s tie to the firm was disclosed by the Huffington Post.

Hudson told the Washington Post he and his wife invested in the firm at the urging of one of its founders, friend and neighbor Becki Donatelli, before Hudson became a federal judge. Hudson and the firm said he has no involvement in its day-to-day operations.

One liberal law professor and longtime civil libertarian who has expressed doubts about the constitutionality of the individual mandate, Jonathan Turley of George Washington University, said Monday that Hudson’s opinion should not be dismissed as the product of politics.

“It’s very thoughtful–not a screed,” Turley said. “I don’t see any evidence this is motivated by Judge Hudson’s personal beliefs. . . Anybody who’s dismissing this opinion as a political screed has obviously not read the opinion.”

Turley also said suggestions from the unnamed sources in the Obama administration that critics of the law were forum-shopping–picking a court or district where judges were more likely to rule favorably on their case–were hypocritical since the Justice Department also seems to have its favorite venues for certain types of cases.

“The DOJ does the same thing. It’s no accident that the Department of Justice sends 90 percent of their terrorism cases to northern Virginia,” Turley noted.

To read this Politico article online, click here.


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