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Ian Millhiser

Ian Millhiser

Posted March 19, 2009 | 11:32 AM (EST)

Big Pharma's Loss is America's Gain: Obama's Outstanding First Choice for the Federal Bench


If you were unfortunate enough to read the National Review yesterday, you would think that President Obama has a stealthy plan to turn America in to Gomorrah. Obama's new judge supports abortionists! He's in league with the ACLU! His nomination is payback for ACORN!

In other words, the right is dusting off its old playbook. Judge David Hamilton, a federal district judge in Indiana and the President's first nominee to the Court of Appeals, once struck down an Indiana law limiting access to abortion. Prior to becoming a judge, he sat on the Indiana ACLU's board and he even spent a whole month of his early adulthood working as a canvasser for ACORN. Obviously, Judge Hamilton is a dangerous radical who must be stopped.

The truth, of course, is that Judge Hamilton is nothing of the sort. Indeed, the reason why conservatives want to dwell on what David Hamilton did for a month when he was fresh out of college is because they know they cannot win their case against him on the merits.

At the end of President Bush's term, three decades of irresponsible deregulation culminated in the worst economic collapse since the Great Depression; and throughout this era of irresponsibility, the judiciary contributed significantly to the deregulators' campaign to, in Grover Norquist's words, drown government in a bathtub.

A few years after Ronald Reagan announced that "government is the problem," the courts began to allow companies to force their customers into a biased, privatized arbitration system that rules in favor of corporations 94% of the time. Three years before Bill Clinton declared the era of big government over, the Supreme Court gave a gift to employer-provided health plans who deny lifesaving care to their customers: total immunity from liability when their illegal denials of coverage injure or kill a patient. Just months before Phil Gramm announced that we are suffering a "mental recession," the Court gave similar immunity to the makers of dangerous medical devices.

Earlier this month, however, the Supreme Court broke this cycle. Responding to a drug company's claim that they are immune from state laws so long as their drugs and drug labels are approved by the FDA, the Justices declared the claim to be a bridge too far. The Supreme Court recognized the simple truth that state consumer protection laws play an essential role in protecting consumers from potentially toxic drugs.

Yet months before the Supreme Court stopped big pharma's quest for lawsuit immunity in its tracks, a federal district judge named David Hamilton authored a prescient opinion. As Judge Hamilton explained, the FDA can only do its job when it works in partnership with state tort law. No drug can be sold in the United States unless it is approved by the FDA, but the FDA can't catch everything--they frequently approve a drug or a drug label despite as-yet-undiscovered dangers to the consumer. Accordingly, Judge Hamilton recognized, state tort law "can play an important role in filling the gap." Unless drug companies suffer a financial consequence when a previously-undiscovered danger leads to injury or death, they have no incentive to eliminate the danger or at least warn of its existence.

In other words, Judge Hamilton's nomination is a marked change from the judges chosen in the Bush era -- both of Bush's appointments to the Supreme Court voted with big pharma and against American consumers -- and it is exactly the change which Americans voted for last November. Hamilton understands that a judge's job is to apply the law equally to ordinary Americans and powerful interest groups alike, and so he had no trouble determining that drug companies cannot be immune from the law.

In the end, conservatives understand that judges who believe in one set of laws for corporations and another for consumers are anathema to the American people. They cannot defend their own deregulatory values, so they distract us with tired scare tactics invoking ACORN and the ACLU. Their tactics may have worked in the past, but they will not work this time. The American people know that we need judges like David Hamilton who refuse to place powerful interest groups above the law.