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Judge Kessler

Yesterday, U.S. District Court Judge Gladys Kessler became the third federal judge to rule in favor of the health care reform law's constitutionality, but as with each of the other rulings in favor of reform, Kessler's decision has barely made a ripple in the media.

In contrast, coverage of Judge Roger Vinson's decision against reform saturated the media, even though his ruling had no immediate impact on health reform.

The Vinson ruling received A1 coverage in The New York Times and dominated cable news. The Kessler ruling was covered on A14 of the Times and as far as cable news goes, I was only able to find two references to it -- both on Fox, and each for less than a minute. (I'm basing this on closed caption text searches, so it's possible I missed a couple of references, but there was hardly any coverage at all.)

After the Vinson ruling, Steve Benen pointed out the huge disparity in coverage between the two rulings in favor of reform and the two rulings against reform. Even if you were to dismiss the significance of those numbers on the theory that the rulings against reform were bigger news because they happened after the rulings that upheld reform, yesterday's ruling should be at least as significant as Vinson's ruling because it means that three judges have now ruled in favor of reform compared with two who have ruled against it.

Ultimately, the real test will be in the Supreme Court, but if you dismiss the importance of the Kessler ruling on that basis, then you should also have dismissed the Vinson ruling. That's actually where I'm at: I don't think any of these rulings are huge news. But given that the media treated the Vinson ruling as a Really Big Deal, they should be doing the same with the Kessler ruling.

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Comment Preferences

  •  Strangely, I heard it from Fox News cable. (5+ / 0-)

    I'm sure the pundits aren't going to flog it, though.

    "It's too early to tell." Mao, when asked about the consequences of the French Revolution.

    by Inland on Wed Feb 23, 2011 at 02:01:50 PM PST

  •  OMG!!! ACTIVIST JUDGE!!! (4+ / 0-)

    impeach! impeach!

    the battle cries begin.

    hope springs eternal and DAMN is she getting tired!

    by alguien on Wed Feb 23, 2011 at 02:03:25 PM PST

    •  It won't matter (0+ / 0-)

      The Teapublicans know their bought and paid for (Koch Bros) activist right wingers on the Supreme Court will overturn HealthCare Reform.

      Scalia and Thomas dont attend Koch Bros meetings for nothing.

      "He's the one, who likes all our pretty songs. And he likes to sing along. And he likes to shoot his gun. But he knows not what it means" - Kurt Cobain

      by Jeff Y on Wed Feb 23, 2011 at 02:40:12 PM PST

      [ Parent ]

  •  Corporate Media is a tool of the Plutocrats (3+ / 0-)
    Recommended by:
    OHdog, Jeff Y, socalmonk
  •  She's obviously a communist fuckstick (2+ / 0-)
    Recommended by:
    Greasy Grant, LaurenMonica

    she don't count.

  •  hmm (4+ / 0-)

    wouldn't this fall under the category of "dog bites man"?

    Shouldn't the expectation be that legislation will not be ruled to be unconstitutional?

    The best pizza comes from New York.

    by JakeC on Wed Feb 23, 2011 at 02:05:54 PM PST

    •  Actually (3+ / 0-)
      Recommended by:
      Blogvirgin, leftymama, blue aardvark

      I rethought that answer, because really, there is another, unfortunate story brewing here.

      The judges appointed by Democrats are upholding the law, judges appointed by Republicans are finding it to be unconstitutional.

      If this trend continues all the way to the Supreme Court, obviously that's the end of the individual mandate.  More importantly though, is the idea of an independent judiciary just takes a big, big whack.

      The best pizza comes from New York.

      by JakeC on Wed Feb 23, 2011 at 02:08:35 PM PST

      [ Parent ]

      •  Pretty unsurprising. (2+ / 0-)
        Recommended by:
        VClib, phrogge prince

        The mandate's a novel issue, so it's not at all surprising that lower courts are going to resolve it in accordance with their political leanings. I'd like to think (though I'm not that optimistic) that the Supreme Court will have the bigger picture in mind... but we'll see.

        Their number is negligible and they are stupid. -- Eisenhower

        by Pegasus on Wed Feb 23, 2011 at 02:24:37 PM PST

        [ Parent ]

        •  I don't put much faith on SCOTUS regarding (1+ / 0-)
          Recommended by:
          p gorden lippy

          this issue:  they could as easily knock it down as not.  Hey, maybe Clarence will even say something about it, huh?

          •  They absolutely could. (2+ / 0-)
            Recommended by:
            VClib, phrogge prince

            Some of them are just itching to draw lines around the Commerce Clause, and this is a good chance. The mandate is "different" enough from stuff that has come before that they could draw a line there, with a straight face. As usual, we'll wait and see what Anthony Kennedy thinks, and then we'll know what the law is.

            Their number is negligible and they are stupid. -- Eisenhower

            by Pegasus on Wed Feb 23, 2011 at 02:34:29 PM PST

            [ Parent ]

        •  The thing is, though (1+ / 0-)
          Recommended by:

          There is a pretty liberal argument to be made against the mandate, and there is a pretty conservative argument to be made in favor.  So, the inherent philosophy the judge goes onto the bench with would not automatically lean them one way or the other.

          The problem is the perception, if not the reality, that the rulings are all about politics- the Republicans trying to damage the President by having his signature legislation declared invalid, and the Democrats trying to avoid that damage.

          The best pizza comes from New York.

          by JakeC on Wed Feb 23, 2011 at 02:35:27 PM PST

          [ Parent ]

          •  You're mixing up... (1+ / 0-)
            Recommended by:

            "liberal" and "conservative" political positions with "liberal" and "conservative" constitutional/legal positions.  The liberal constitutional/legal position is that subject to certain restrictions (e.g., the Bill of Rights), the federal government has broad regulatory authority, while the conservative position is that the federal government has exceedingly narrow regulatory authority.

            The hard right folks behind "constitution in exile" arguments for sharply limited governmental power have been extremely savvy, hiding their ideology behind liberal causes (the Raich case on medical marijuana being the lead one).

            •  I understand the distinction (1+ / 0-)
              Recommended by:

              but, it is not that clear cut.

              You are presuming a liberal judge COULDN'T find the mandate to be a violation of the right to privacy.  After all, the federal government can't compel a parent to send their child to school (as opposed to home schooled), because it is their right to make decisions for their family.

              And, the Raich case is a great example of what I mean that it is not always clear what is liberal or conservative, even strictly in a legal/constitutional sense.  Any time Stevens and Scalia end up on the same side of a 5-4 case...

              The best pizza comes from New York.

              by JakeC on Wed Feb 23, 2011 at 03:05:41 PM PST

              [ Parent ]

              •  Raich... (0+ / 0-)

                had a clear liberal and conservative outcome.  The question was basically whether the cultivation of marijuana constituted interstate commerce such that it could be regulated by federal law.  The conservative position was that it was not "interstate commerce," and at its core sought to overturn Wickard v. Filliburn, which would be a very, very bad thing.  

                And none of the substantive legal challenges to the mandate are on privacy grounds (though it seems that the DC plaintiffs tried to throw in some sort of free exercise claim).  The question is whether the mandate is permissible under Article I, Section VII--not whether it's bar by some other provision.

          •  Interesting but (0+ / 0-)

            no one, AFAIK, has challenged the mandate on privacy grounds.

    •  Exactly. When things are upheld, it's not a big (2+ / 0-)
      Recommended by:
      Pegasus, cocinero

      deal, or at least not perceived to be one.

      They tortured people to get false confessions to fraudulently justify our invading Iraq.

      by Ponder Stibbons on Wed Feb 23, 2011 at 02:08:45 PM PST

      [ Parent ]

    •  Yes, but (1+ / 0-)
      Recommended by:

      If a district court ruling one way on a issue is trumpeted then one ruling the other way ought to get the same treatment.  To do otherwise suggests that the editors are promoting one point of view over the other.  If both had been on A14, then no problem.  Once one goes on A1, that's where the other belongs.

      •  I don't know (1+ / 0-)
        Recommended by:

        Two courts get a case challenging whether requiring students to recite the Pledge of Allegiance with the phrase "Under God"; one rules it is Constitutional, the other says it is not.  I would fully expect the second case to get a lot more press than the first.

        The best pizza comes from New York.

        by JakeC on Wed Feb 23, 2011 at 02:31:35 PM PST

        [ Parent ]

  •  Beck : She is clearly a communist (0+ / 0-)

    Republicans secret dream = the impeachment of Bo the Dog LOL

    by LaurenMonica on Wed Feb 23, 2011 at 02:09:26 PM PST

  •  Everyday it becomes more evident that (3+ / 0-)
    Recommended by:
    libdevil, socalmonk, NM Ray

    there is no difference between corporate control of media in the United States and state control of media in countries without a democratic form of government.

    Can you imagine if George Bush were still President? What if McCain/Palin had been elected?

    by Blogvirgin on Wed Feb 23, 2011 at 02:10:51 PM PST

  •  You are correct (0+ / 0-)

    This story is not getting the attention that it deserves but to be fair this is a really, really busy time for some very interesting news stories with the activity in the Middle East that has spread to North Africa and now further into Africa and the protest in our Midwest spreading to surroundign states, which may culminate in nation-wide protests.  

    Maybe (or not) with a quieter new cycle the case would have gotten more attention.

  •  Alot of media outlets... (0+ / 0-)

    ...have just rolled over and died for the current GOP interpretation of legislative priorities and the economy in general. The lack of interest in this decision just goes hand in hand with that.

  •  Simple Explanation (2+ / 0-)
    Recommended by:
    ubertar, blue aardvark

    Kessler's ruling upholding the constitutionality of the law was not groundbreaking at all.  She simply followed the long line of constitutional precedents which are all logically consistent and date back decades.

    Vinson's ruling was wildly at odds with established constitutional law and was completely inconsistent with the government's taxation powers, not to mention regulatory powers, so it was newsworthy for being radically injudicious and an attack on the powers of Congress.  Vinson radically overstepped the limits of judicial review and simply made new law by his own edict - not kosher in these United States.

    •  Even simpler than that. (3+ / 0-)
      Recommended by:
      VClib, ubertar, Justanothernyer

      Affirming a law's (any law's) constitutionality is a routine event. Overturning a big, high-visibility law is not. The latter's more newsworthy generally. The quality of the analysis doesn't come into it (as if the media knows how to interpret what it's reading, anyway).

      Granted, you'd expect the split in the legal community on one of the biggest issues of the day to draw more and better coverage. So yeah: they suck.

      Their number is negligible and they are stupid. -- Eisenhower

      by Pegasus on Wed Feb 23, 2011 at 02:30:01 PM PST

      [ Parent ]

      •  How about any explanation? (0+ / 0-)
        Granted, you'd expect the split in the legal community on one of the biggest issues of the day to draw more and better coverage.

        The MSM can't be bothered to even remark on the constitutional principles, let alone discuss them.  At the same time, they give maximum coverage to the Teabaggers' insistence on following the Constitution.  

        How about an explanation of what the Constitution says here? No can do.

    •  Come on..You don't actually think the (1+ / 0-)
      Recommended by:

      media understands the law!!!!

      This is far to complex an analysis for ratings driven news coverage.

      •  Ratings Rule (0+ / 0-)

        The news business is just a business, nothing more.  

        Anything beyond a 30 second sound bite is too complex and if the facts don't fit the meme, then they can't be explained at all.  Why did Kessler uphold healthcare reform?  The MSM has no idea.

        Sad commentary on this bulwark of freedom that millions have died to defend.

  •  It's "man bites dog" (1+ / 0-)
    Recommended by:

    With most experts agreeing that the PPACA is constitutional, rulings contradicting that are more newsworthy than those, like Judge Kessler's, that confirm the consensus view.

  •  Jed - here is a possible reason (2+ / 0-)
    Recommended by:
    Odysseus, Standard Deviant

    I am not a lawyer so this is my take based on what I have read as a lay person and welcome our resident lawyers to weigh in where I am in error. In each of the three cases where the ACA has been ruled constitutional at the trial court level there is nothing else that needs to be done, although the losing party may appeal, but no burden was placed on the Obama administration. The Vinson decision, where the plantiffs were 26 states, can have an impact in those 26 states and on the Obama administration. While Judge Vinson did not grant the plantiffs' request for an injunction in his ruling he noted that he did not need to issue an injuction because his ruling vacated the law. I think you will see the states return to Judge Vinson to argue that the Obama administration has not obeyed his ruling and he will grant injunctive relief. I also think that you will see the Obama administration go to the Court of Appeals asking for a stay on Judge Vinson's ruling until the matter is decided at the appeal court level.  The plantiffs were very high profile and the ruling was very encompasing, I think that's the difference in the Vinson case and why the media coverage was so intense.

    "let's talk about that"

    by VClib on Wed Feb 23, 2011 at 02:15:38 PM PST

  •  Let 'em yawn... (0+ / 0-)

    Yawning is good for your health. Maybe that will keep them out of the ER. One can always hope, because if they need emergency room care, they had better be covered properly.

    I have no idea where I'm going with this comment...

  •  DragonBall Z hairstyle (0+ / 0-)

    You'd think the media would pay more attention since her power level is over NINE THOUSAND!!!

    And also because her ruling is important and significant.

  •  Man bites dog (0+ / 0-) still not news.  A judge deciding that the mandate is constitutional, when that mandate is thoroughly in line with stare decisis, is thoroughly unsurprising.  The opposite is actually news when it does happen.

    We should have destroyed the presidency before Obama took office. Too late now.

    by gtomkins on Wed Feb 23, 2011 at 02:17:28 PM PST

  •  Speaking of Yawns: Obama Just Spoke (0+ / 0-)

    I know it's off subject, but President Obama's just concluded remarks on Libya were tepid at best and sounded anything but resolute.

    Obama reads really well but expresses damn poorly.  Sometimes I feel he's missing one of something vital.

  •  It is disturbing (1+ / 0-)
    Recommended by:

    It is disturbing to me that the most significant part of the reporting, for many people, is the identity of the president who appointed the judge.  Does anyone bother to explain the legal reasoning or the consistency to established precedent?  Are these things now arcane trivia?

  •  Man bites dog bigger news (1+ / 0-)
    Recommended by:

    A law overturned is bigger news than a law upheld.

    The difference is larger than can be explained just by man bites dog, though.

    They are telling the Tea Brained Republicans what they need to hear to stay angry. Then if the SCOTUS issues the legally valid ruling the Tea Brained have a new Roe V Wade to obsess over - which might mean that the original Roe V Wade might finally be permitted to become settled law by those who need to deceive Tea Brained Republicans.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Wed Feb 23, 2011 at 02:21:02 PM PST

  •  Any comments on her ruling, Jed? (0+ / 0-)

    I found it rather confusing as a lay person.

    What I did find surprising however, was that she went on at length at how the mandate is a "critical element" of the law.  Wouldn't that be reinforcing Vinson's ruling of no severability?

    •  Yes. (1+ / 0-)
      Recommended by:

      Which is fine, because without the mandate I think the whole program really does fall apart and should be re-done.

      The stuff about how critical the mandate is ultimately is most important for the Necessary & Proper Clause analysis though, rather than severability. Within permissible ends (like regulating the national insurance market), Congress has wide latitude to decide how to achieve those ends. Here, they've chosen to mandate insurance coverage. That the mandate is so critical to the overall scheme of the law strengthens the argument that Congress is allowed to do it under the N&P Clause. IMO, that's the critical inquiry the Supreme Court will end up turning on.

      Their number is negligible and they are stupid. -- Eisenhower

      by Pegasus on Wed Feb 23, 2011 at 02:43:58 PM PST

      [ Parent ]

  •  It's all about sales (0+ / 0-)

    The Media know that the American Public will get more up in arms over coverage of rulings against the Act than rulings for it. Many Americans know in their hearts that they want Universal Health Care, and that resistance is futile. Ultimately, it will not surprise them when we are all covered. A highly vocal minority however, despise the idea. There is no drama over rulings which uphold this law. There is great drama when judges rule against it. Great drama sells more papers, and garners more listeners/viewers. Make your own conclusions, but that is mine, short and simple.

  •  The media in this country sickens me to (0+ / 0-)

    Death. Many of them are no better than the crap we see coming from the state run media of the dying regmes in the middle east. They lie and twist facts and under report real stories just to please the right wing scums.

  •  No offense intended, but are we (1+ / 0-)
    Recommended by:
    Voodoo king

    still expecting 'journalists' to act like journalists?  I think they stopped doing that a decade or more ago. Yet somehow the myth of the Left-Wing press continues:  it's fucking mindboggling.

  •  But, but, but (1+ / 0-)
    Recommended by:

    the three judge who held the law Constitutional are all Clinton appointees.  The two who didn't were both Republican appointees!

    Seriously: says

    The three judges who’ve upheld the law were all appointed by Democratic presidents; the two who shot it down were appointed by Republicans. Coincidence?

    It's just the DEMONCRATS supporting BARACK HUSSEIN OBAMA.

  •  And when not ignoring it they (1+ / 0-)
    Recommended by:

    are headlining it as follows:

    Obama Health Care Lawsuit Rejected By U.S. District Judge Gladys Kessler

    Next to that headline Huffington Post put a picture of Obama frowning. Wow, Obama's lawsuit was rejected!

    "Mr. President, I'm not saying we wouldn't get our hair mussed." General Buck Turgidson

    by muledriver on Wed Feb 23, 2011 at 02:28:33 PM PST

  •  I suppose it could be argued (0+ / 0-)

    that ruling against its constitutionality is a "man bites dog" situation, and therefore worthy of coverage. I don't know if that's their thinking, but it does make some sense.

    "We can have concentrated wealth in the hands of a few or we can have democracy, but we can't have both."-- Justice Louis Brandeis

    by ubertar on Wed Feb 23, 2011 at 02:33:45 PM PST

    •  in my rush to post (0+ / 0-)

      didn't see the 10,000 other people who said the same thing already. At least I'm in good company.

      "We can have concentrated wealth in the hands of a few or we can have democracy, but we can't have both."-- Justice Louis Brandeis

      by ubertar on Wed Feb 23, 2011 at 02:37:36 PM PST

      [ Parent ]

  •  Scary (0+ / 0-)

    According to the Judge Gladys Kessler  the powers granted to the federal government on the Commerce Clause extend to regulating "mental activity." The Judge made the leap from "physical activity" to "mental activity" in extending the federal government reach well beyond anything ever seen before.   Prior commerce cases  cases only were about physical activity.

    •  False. (0+ / 0-)

      The physical/mental distinction is a false one that Judge Kessler dismissed.  She simply (and correctly) pointed out that a choice to purchase a commodity - a choice that is perfectly regulable under long lines of precedent - is every bit as much a "mental" activity as a choice to not purchase a commodity. The choice to buy or not buy is "always an affirmative action. ...To pretend otherwise is to ignore reality."

      Try reading the opinion again.

      Their number is negligible and they are stupid. -- Eisenhower

      by Pegasus on Wed Feb 23, 2011 at 02:50:10 PM PST

      [ Parent ]

      •  Huh (0+ / 0-)

        I agree with the judge that making a choice is an affirmative action. What Kessler is arguing is the choice not to buy is strictly an economic choice. That is crazy.  Think about it. If I have a choice to buy one of two stereos , I will probably make an economic choice on which one to buy; but, what if I decide not to.  It could be for a lot of  reasons that may have nothing to do with economics. Same for a tv or lots of other things.

        If the Judge is correct, then every “mental activity” that has an economic effect is subject to regulation by the federal government.  We could then mandate to buy apples or certain brands of cars or whatever because your decision not to make such purchases is “economic activity” that affects the price of these goods in the interstate marketplace.  

  •  It doesn't fit the narrative. (1+ / 0-)
    Recommended by:

    The End.

    They pull a knife, you pull a gun. They send one of yours to the hospital, you send one of theirs to the morgue. - Jim Malone (The Untouchables)

    by Huginn on Wed Feb 23, 2011 at 02:49:34 PM PST

  •  Irritates me to no end (1+ / 0-)
    Recommended by:

    I watch the Daily Rundown on MSNBC every morning since that is when my alarm goes off (6am PST) and it's the least offensive news program on at that time. They mostly amuse me and only sometimes make me want to throw things.
    Anyway, I remember distinctly that they led off their program the morning after the Vinson ruling with a segment on it.
    This morning? Crickets. Not one MENTION.
    Now, I happen to think it has more to do with covering stories with more DRAMA vs being for or against Obama, but mention?
    I've sent messages to all three twitter accounts attached to the show - more crickets.


  •  Non-coverage actually a good sign (0+ / 0-)

    News media non-coverage of Judge Kessler's decision means most readers still expect courts to let majorities pass laws regulating behavior directly affecting others' well-being (like buying insurance).

    You might think otherwise if you believe news editors (real ones, not Fox ones) truly seek balance. But they don't and shouldn't. They do and should seek the stories most likely to test most readers' assumptions. That's why those stories are news.

    So non-coverage means editors think the Koch brothers have yet to buy most of our souls.

  •  I'm not sure we want to hear (0+ / 0-)

    what SCOTUS has to say, but it is inevitable.

    With the Roberts court servicing the moneyed elites it's a no brainer for sure.

    Roberts is an autocratic unelected national lawmaker, imposing his version of law on America, and doing major damage to our system of justice and fairness.

    IMO Roberts should be impeached before he and his gang get their teeth in healthcare reform.

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