“It turns out that the same policies that President Bush followed were followed by President Obama,” said District Court Judge Edward Korman on Tuesday morning, in a charged and dramatic two-hour hearing in which the Obama administration defended its arbitrary policy to limit contraceptive access....
This morning, Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel’s every other sentence with assertions like, “You’re just playing games here,” “You’re making an intellectually dishonest argument,” “You’re basically lying,” “This whole thing is a charade,” “I’m entitled to say this is a lot of nonsense, am I not?” and “Contrary to the baloney you were giving me …” He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women” with the ID requirement for the drug....
“The irony is that I would be allowing what the FDA wanted. This has got to be one of the most unusual administrative law cases I have ever seen,” Korman said, adding, “I would have thought that on the day I handed down my decision, they would be drinking champagne at the FDA.”
May 7, 2013
"Judge rips Obama’s right-wing Plan B stance."
The headline at Salon. Text excerpts:
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46 comments:
Where did the judge go to medical school? Or is he just another damned failed lawyer who thinks he knows everything about everything?
Asshole.
So this activist buffoon deferred his ruling, remanding on the assumption that Obama would lift all age restrictions on the Plan B drug, and now he's upset that Obama made a political decision. Just another disappointed Obama voter. I do so hate a noisy judge.
Reagan really didn't have a great track record with judicial appointees. Maybe because political lawyers are mostly left wingers.
Choom, right wing?
Yeah, that'll fly.
If a judge slams his/her hand and otherwise fidgets, does that make the judge and activist judge?
I don't think this is even activism -- this kind of attitude from a judge in court is just grotesquely disrespectful. When judges chew attorneys out in court, attorneys basically have to sit there and take it. Maybe Salon is just excerpting a handful of hysterical outbursts from an otherwise professional hearing to sex up their story, but if the judge went on like this throughout the hearing that's . . . that's just egregious. He should be ashamed.
He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women”
Another politician posing as a judge.
It sounds like an unstable judge to me.
Re: Marshal:
Another politician posing as a judge.
Look, all judges are swayed by their biases. But in modern times, judges mostly seem to adhere to a combination of textualism and precedent rather than this kind of naked exercise of judicial power.
The author of the Salon piece includes comically slanted language like: "right-wing Plan B stance" and "arbitrary policy to limit contraceptive access," so I suppose she's cheering this judge on, kind of, but I don't understand how anyone can read this and not think this article is making the judge look like an utter fool, and undermining any confidence a third party could have that the judge is making a "good faith" effort to decide the case impartially.
Start with judicial temperament, take out the judicial part, take out the ament part, and this is what you get.
So any random 14-year-old can buy a drug that causes her to have an abortion, over the counter, like aspirin. But she still can't, of course, get birth control pills without a prescription.
Guess what kind of behaviour we've just incentivized for 14- and 15-year-olds in the future? And how will that turn out for their future health?
I can see why it takes years of training to be a lawyer, and even more to be a judge. It must take a whole lot of mental effort to eradicate every modicum of common sense.
We need real voter ID laws. Universal voter ID laws.
So any random 14-year-old can buy a drug that causes her to have an abortion
That is not what Plan B does. You're thinking of RU486.
I have known Judge Korman for 30 years, in many contexts, beginning when I was an AUSA when he was USAtty. He is as deliberate and careful as it is possible for a judge to be, and is among the most highly repected judges in the SDNY or EDNY.
This case has been going on for over 10 years. Because it involves a challenge to an FDA rule imposing restrictions on the availability of a drug, the issue is only whether the restrictions are necessary for reasons related to the safety or efficacy of the drug. The FDA concluded that there were no such reasons requiring restrictions on the availability of the drug. Since the issue is only whether the drug should be restricted based on the age of the buyer (no restrictions for over 15, but not under), the issue was whether that line was supported by safety or efficacy reasons. There were and are no such medical reasons, as the FDA has repeatedly determined.
That decision was overruled during the Bush Admin, but without anyone's questioning the safety or efficacy of the drug regardless of age. Korman vacated that decision and sent it back to the FDA. Lo and behold, the FDA reached the same conclusion on the safety/efficacy issue, and was overruled again by the politicos -- this time in the Obama Admin -- for political reasons.
After more than 10 years of this, Korman had had enough. And well he might. It is a truism, at least when I was an AUSA, that the privilege of representing the United States carries with it certain obligations, among them being the obligation of candor. The judge made it quite clear that he felt those obligations had been breached by the Gov't's attorneys, repeatedly and flagrantly, all in service of a political agenda.
For those who think the judge overstepped some imagined line of civility, how long is a judge supposed to put up with such dissembling, especially from the Gov't, before calling it what it was? Those who think this is some imagined 'activism' don't know what they are talking about. This judge was insisting that the law governing FDA actions be observed and applied. The FDA's mandate does not extend to making up social policies about abortion, contraceptives, or preferred parent-child relationships. But that is the focus of the ignorant 'criticisms' in the thread above.
In short, This judge was properly rejecting the Admin's notion that those laws only apply when politically convenient, to be replaced by other standards of the Admin's invention when political self-interest demands. Here's a news flash: That is what judges are supposed to do.
Richard Dolan says "the issue [in this case] is only whether the restrictions are necessary for reasons related to the safety or efficacy of the drug", so imposing an age limit was invalid. I assume he's right about the law. Now, it's my understanding that laws can be changed by something called "Congress". How about we try that? Right away? My oldest granddaughter is already 9.
Larry J asks:Or is he just another damned failed lawyer who thinks he knows everything about everything?
I suspect he's a lot more successful than you, Larry, particularly given that he's a judge and all. But please, continue with the "he's just a failed lawyer" rants. That's very convincing.
Oh, and I also see he's a federal judge appointed by Reagan after a distinguished career. Yes, a total failure who couldn't stand up to the high standards of the random blog commenter called Larry J and other brilliant pebbles.
In a narrow sense I see where the judge is going and in the limited sphere of logic predicated by the FDA's determination it makes sense. That said there is something funds mentally wrong in the FDA's determination. Congress needs to deal with this. Encouraging and or abetting 14 year olds to have sex isn't good public policy.
I found it refreshing that a judge called the Obama administration hypocritical.
If the safety and efficacy of the drug is the issue why doesn't the court recognize that it would be used to cover up child sex abuse? Ephedrine is behind the counter, and sometimes not available at all, due to safety concerns that it is purchased for use in manufacturing meth.
"So any random 14-year-old can buy a drug that causes her to have an abortion
That is not what Plan B does. You're thinking of RU486."
Um, no. the drug is an abortificant, not a contraceptive.
A contraceptive blocks conception, i.e. it keeps the sperm and egg from getting together. Plan B doesn't do that. Plan B keeps a fertilized human egg (also known as a human being) from implanting on the woman's uterus.
Is it possibly maybe potentially evidence of statutory rape when a girl 15 years old (or younger) seeks to purchase Plan B from a drugstore?
Gregq, please check your science on how standard birth control pills operate. Hint: no pill is going to stop the sperm and egg from getting together.
The only thing the pill does is cause the fertilized egg not to implant on the uterine wall. Plan B does the same thing regarding implantation.
If you want to make a point, be sure you know what you are talking about .
Mark, the "standard birth control pill" prevents ovulation which certainly does keep the sperm and the egg from getting together.
Not the progestin only pill, like my wife took.
Richard Dolan:
This:
He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women”
Is not "candor" nor is it mere frustration.
It is political silliness.
Re: Richard Dolan:
I have known Judge Korman for 30 years, in many contexts, beginning when I was an AUSA when he was USAtty. He is as deliberate and careful as it is possible for a judge to be, and is among the most highly repected judges in the SDNY or EDNY.
It is a great pity, then, that Salon has made him look like such a buffoon.
Why am I reminded of Roland Freisler?
http://www.youtube.com/watch?v=aNi5256dhvM&bpctr=1368015202
"Choom, right wing?"
After 4 and half years you still haven't got it?
somefeller said...
Larry J asks:Or is he just another damned failed lawyer who thinks he knows everything about everything?
I suspect he's a lot more successful than you, Larry, particularly given that he's a judge and all. But please, continue with the "he's just a failed lawyer" rants. That's very convincing.
Actually, I think a high percentage of all judges are failed lawyers with sufficient political connections to get appointed to a job where they can't be fired. I don't see judges as the high priests of the law like some appear to do. A certain percentage of all people are assholes. Lawyers as a group seem to have a higher percentage of assholes than the population at large and judges are worse.
Sklyler comparing Judge Korman to a Nazi judge is over the top. Again the real issue is the lack of oversight by Congress of the FDA.
Banging on the desk and shouting down responses is inappropriate at any time for a judge. He can make his rulings without the theatrics.
Revenant said...
"That is not what Plan B does. You're thinking of RU486."
Thanks. I didn't realise that either but checked wikipedia after reading your post. Yep; different and acts totally differently.
Robert Cook said...
""Choom, right wing?"
After 4 and half years you still haven't got it?"
Is this one of those 'there has never been true socialism' things?
Revenant said...
"That is not what Plan B does. You're thinking of RU486."
Thanks. I didn't realise that either but checked wikipedia after reading your post. Yep; different and acts totally differently.
Larry J your observation has been my observation as a litigant in state court. Federal courts pay better and are more prestigious. Those judges usually have had a pretty decent career prior to becoming federal judges.
Skyler a federal judge ranting isn't anything new. As a litigant I have seen a federal judge rip quite a few assholes to the respective attorneys. The point being the theatrics as unpleasent as they are are not important. It's the rulings and how they are derived that are important. Most judges biases aside are pretty careful as mentioned up thread which why reversal rates at the appellate level are pretty slim.
In this particular instance the court did what it was supposed to do: make a legal determination predicated on the medical decision of the presumed medical expert, the FDA. As I see it his ruling is logical based on the FDA's determination. Now from a purely medical perspective I don't know if the FDA is technically correct. Not having the medical knowledge I can't say yes or no. Howver from a public policy perspective it is clearly wrong. The judge got it right when he blasted the government for trying to use the court to make a political decision ( one of the rare times I agree with the Administration). Indeed when seen in that perspective it is actually a very conservative ruling. It's not the function of the courts to make public policy. That function belongs squarely on Congress and the Obama Administration should push Congress to deal specifically with the public policy issue of birth control medication for minors. But that takes leadership something this administration is sorely lacking.
RE: Larry J:
Actually, I think a high percentage of all judges are failed lawyers with sufficient political connections to get appointed to a job where they can't be fired. I don't see judges as the high priests of the law like some appear to do. A certain percentage of all people are assholes. Lawyers as a group seem to have a higher percentage of assholes than the population at large and judges are worse.
Yeah, that might be true, but a lot of law is about connections and relationships. If the judge was a US Attorney before becoming a federal judge, you can't call him a failed lawyer. By lawyer standards, he's a success.
"Skyler a federal judge ranting isn't anything new."
Sure, I know. But it's still inappropriate.
Obama's campaign said one thing about the Plan B deregulation, even as his minions at FDA prepared to pursue deregulatuion of it. Now, he's got to defend the policy he advocated earlier, even though he's a big proponent of maximun promiscuity at the earliest age possible.
Does the judge believe the same thing about purchasing a gun? A photo ID being an impediment for under privileged individuals access their constitutionally protected rights.
Richard Dolan said...
I have known Judge Korman for 30 years, in many contexts, beginning when I was an AUSA when he was USAtty. He is as deliberate and careful as it is possible for a judge to be, and is among the most highly repected judges in the SDNY or EDNY.
This case has been going on for over 10 years. Because it involves a challenge to an FDA rule imposing restrictions on the availability of a drug, the issue is only whether the restrictions are necessary for reasons related to the safety or efficacy of the drug. The FDA concluded that there were no such reasons requiring restrictions on the availability of the drug. Since the issue is only whether the drug should be restricted based on the age of the buyer (no restrictions for over 15, but not under), the issue was whether that line was supported by safety or efficacy reasons. There were and are no such medical reasons, as the FDA has repeatedly determined.
That decision was overruled during the Bush Admin, but without anyone's questioning the safety or efficacy of the drug regardless of age. Korman vacated that decision and sent it back to the FDA. Lo and behold, the FDA reached the same conclusion on the safety/efficacy issue, and was overruled again by the politicos -- this time in the Obama Admin -- for political reasons.
After more than 10 years of this, Korman had had enough. And well he might. It is a truism, at least when I was an AUSA, that the privilege of representing the United States carries with it certain obligations, among them being the obligation of candor. The judge made it quite clear that he felt those obligations had been breached by the Gov't's attorneys, repeatedly and flagrantly, all in service of a political agenda.
For those who think the judge overstepped some imagined line of civility, how long is a judge supposed to put up with such dissembling, especially from the Gov't, before calling it what it was? Those who think this is some imagined 'activism' don't know what they are talking about. This judge was insisting that the law governing FDA actions be observed and applied. The FDA's mandate does not extend to making up social policies about abortion, contraceptives, or preferred parent-child relationships. But that is the focus of the ignorant 'criticisms' in the thread above.
In short, This judge was properly rejecting the Admin's notion that those laws only apply when politically convenient, to be replaced by other standards of the Admin's invention when political self-interest demands. Here's a news flash: That is what judges are supposed to do.
How many hours has Judge Korman spent on this legal wrangling? This precedes the Obama Administration does it not? The challenge allowed for the restriction to be lifted so that Plan B could in effect be made OTC. Am I right? And since the efficacy issue was resolved by the FDA, then why did Korman vacate the decision and kick it back to the FDA?
Balfegor said...
Yeah, that might be true, but a lot of law is about connections and relationships. If the judge was a US Attorney before becoming a federal judge, you can't call him a failed lawyer. By lawyer standards, he's a success.
That may be, but lawyer standards is an appalling low measure of descency or adequacy. Not all lawyers are complete scumbags. Quite a few actually aren't total parasites on society and contribute something of value. However, that's a small percentage of the profession, lending credance to the joke that "99% of the lawyers make the rest of them look bad."
Larry J said....
Not all lawyers are complete scumbags.
Dude you are just wrong. Hasn't dealing with the likes of somefeller taught you anything?
Baron Zemo said...
Larry J said....
Not all lawyers are complete scumbags.
Dude you are just wrong. Hasn't dealing with the likes of somefeller taught you anything?
Actually, my daughter-in-law does franchise law for a major US corporation. She actually contributes to society and is a lovely human being. She isn't a scumbag, so she's in the 1% of lawyers in the joke.
Q: Do law schools turn most of their students into assholes, or are assholes more likely to be drawn to the law?
I really supports with the argument that all the
franchise lawyers are not scumbags.
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