KXAN: Gov. Abbott appoints, then pushes out acupuncture board member

The appointment process ain't always easy.

Who knew we had a Texas Board of Acupuncture Examiners.

- Click here for the article.

Gov. Greg Abbott thought twice after appointing a leader of a health care board because of concerns about the doctor’s history.

On May 12, Gov. Abbott sent out a press release detailing the appointment of Dr. Daniel Brudnak to the Texas Board of Acupuncture Examiners.

Dr. Dan Brudnak of Gorman is a private practice family medicine and acupuncture physician. He’s a fellow and diplomat of the American Academy of Family Practice and diplomat of the American Board of Medical Acupuncture.

On June 21, he resigned after details emerged from his past.

In 2011, the State Medical Board cited him for inappropriately prescribing stimulants and not keeping appropriate records.

The governor’s Press Secretary John Wittman said, “After our office was made aware of the seriousness of these violations, Dr. Brudnak tendered his resignation and we accepted it.”

In his letter of resignation, Dr. Brudnak mentioned his missteps.

Analysis: The Long and Winding Road to the Texas Ethics Commission

A look at the convoluted appointment process for the Texas agency responsible for overseeing campaign finance, the regulation of lobbyists, and a number of other items.

- Click here for the article.

The Texas Ethics Commission is a dog that doesn’t bite.

It’s designed that way. 

It’s the regulatory agency in charge of politicians and legislators. You think those folks want to give it real teeth?

That said, it’s also a strange place when it comes to appointing commissioners.

Most executive branch agencies in Texas are overseen by elected officials or appointed boards and executives. The elected leaders are your own fault, assuming you’re a voter. The appointments are mostly made by the governor, with a handful assigned to the lieutenant governor or the speaker of the House.

The eight-member ethics panel, however, is unique.

The governor appoints four members, and the lite guv and the speaker appoint two each. But wait, there’s more. Each of them chooses from lists of potential appointees provided by legislators in the House and the Senate. Not done with the rules yet: Those lists are split by party.

In practice, that means the political caucuses in the House and Senate have the first cull when it comes to who serves on the state commission that regulates the political activities of candidates, officeholders and lobbyists.

The story links to anther which looks at the current backlog of appointees to executive agencies.

- More than 300 Gubernatorial Appointees Have Expired Terms.

Do sitting federal appellate judges who seek elevation to the Supreme Court modify their behavior to enhance their odds of getting the nomination?

This is a question asked in a recent article n the American Journal of Political Science.

The answer - according to the authors - is yes.

- Click here for detail from ScotusBlog:

We examined the voting behavior of “contender judges” and “non-contender judges.” We defined contender judges as sitting federal appellate judges who have strong reason to believe that the president is considering them for elevation. To identify these judges, we looked to the president’s “short lists.” These are lists (formal or otherwise) presidents keep and maintain to identify potential nominees to the Supreme Court should a vacancy arise. These judges may or may not know they are on the short list, but they certainly have strong reason to suspect they are under consideration. Non-contender judges are federal appellate judges who never made a president’s short list.

Our analysis benefited from the fact that the strong norm these days is to nominate Justices who come from a federal court of appeals. Indeed since 1937, nearly half of all Supreme Court nominees were sitting appeals court judges at the time. Since the Reagan presidency, seventy-three percent of all nominees were sitting federal appeals court judges. Knowing this, federal appellate judges have considerable reason to believe they might be under consideration. And, assuming they want the job, there is every reason to believe they will do what they can to be elevated.

We compared the voting behavior of contender judges (a) when there was a vacancy on the Supreme Court versus (b) when there was no vacancy on the Court. Our belief was that if these judges “court” the president and try to signal to him, they should vote differently in vacancy periods (the time between an announced departure on the Court and when the seat is filled) than in non-vacancy periods. (Our results are robust to other windows of time as well.) During vacancies, they should be more likely to vote in line with the president’s ideological position, more likely to vote for the United States as a party, and more likely to write dissenting opinions. They do precisely that. What is more, we observe none of this behavior from non-contender judges.

Consider whether the judge votes in line with the president’s ideological position. Using a matching analysis, we find that contender judges are more likely to vote in line with the president’s ideological position during vacancy periods than during non-vacancy periods. For example, a contender judge during a non-vacancy period has a forty-two-percent predicted probability of voting to support the president’s ideological position, but a fifty-one-percent predicted probability of doing so during a vacancy period. What is important to note here, again, is that these are judges who already made the president’s short list. That they go into “hyper-ideological” mode during vacancies only underscores our point that they are wooing the president.

The data also show that contender judges are more likely to vote in favor of the United States during vacancy periods than they are during non-vacancy periods. A contender judge during a non-vacancy period has a twenty-seven-percent predicted probability of voting in favor of the United States, but a fifty-four-percent predicted probability of doing so during a vacancy period. These judges do so to establish their “team credentials” and bolster their odds of elevation.

From Vox: Why critics are worried about the new FDA boss Dr. Robert Califf has close ties with the pharmaceutical industry

Classic - potential - case of agency capture.

- Click here for the article.

The Food and Drug Administration, which regulates about a quarter of every dollar Americans spend, has a new boss — and he's already under fire for beingtoo cozy with the pharmaceutical industry.

Dr. Robert M. Califf, a cardiologist and researcher, was nominated by President Obama in September to become the new commissioner of the agency. Hisconfirmation by the Senate was delayed by lawmakers, many of them Democrats, who worried that his links with the pharmaceutical industry would bias his ability to regulate that business and who voiced disapproval over the FDA's handling of the opioid abuse crisis in America.

"F.D.A. stands for Food and Drug Administration, but over the last 20 years it really stands for ‘fostering drug addiction,' " Sen. Edward J. Markey (D-MA), said in a Senate floor speech today.

Despite the reservations, Califf was officially confirmed to the position in a 89 to 4 vote.
Califf has worked with many drugs companies, as both a paid consultant and through his research. As Scientific American points out, "In a recent article in the New England Journal of Medicine, Califf listed over a dozen pharmaceutical companies in his conflict-of-interest disclosure."

Unlike previous commissioners, he did not come from a public health background. Instead, the New York Times reported, he "ran a multimillion-dollar clinical research center at Duke University that received more than 60 percent of its funding from industry."

From the Texas Tribune: Willingham Won't Get Posthumous Pardon

In 2306 we've recently looked at the governor's constitutionally defined appointment powers and will soon look at the criminal justice system - both include mention of the Texas Board of Pardons and Paroles.

The following story reports that the board will not recommend that Cameron Todd Willingham - who may have been wrongly executed - be recommended for a posthumous full pardon.

- Click here for the article.

The Texas Board of Pardons and Paroles has voted not to recommend a posthumous full pardon for Cameron Todd Willingham, who was executed a decade ago after being convicted of setting a house fire that killed his three young daughters.

“This whole process is, unfortunately, typical of this board, where they don’t demonstrate that they’ve actually considered the substantial evidence that we’ve put before them,” said Barry Scheck, co-founder of the Innocence Project, which has led the charge to clear Willingham's name in the case.

A story below highlighted the unwillingness of the Texas Legislature to establish an Innocence Commission to review the problems that lead to wrongful convictions. Critics argue that Texas has yet to face this problem head on.

From the Texas Tribune: CPRIT Operations Moratorium Lifted Following Reforms

Another item we covered in 2306 when we read through Article 3 of the Texas Constitution is in the news:

State leadership decided on Wednesday that the Cancer Prevention and Research Institute of Texas has restored enough public trust to resume grant operations and finalize remaining contracts following a review of the agency’s processes and major reforms passed in the last legislative session.

On Wednesday, Gov. Rick Perry, Lt. Gov. David Dewhurst and House Speaker Joe Straus lifted a moratorium on new grants placed on the agency in December 2012.

In 2007, Texas voters approved the use of $3 billion in bonds to create CPRIT and finance cancer research and the development of cancer treatments and prevention programs for 10 years. The institute came under scrutiny last year when a state audit revealed in January that $56 million in grants had been approved without the proper peer review process. Lawmakers grilled former members of the CPRIT oversight committee during the 83rd legislative session and eventually approved Senate Bill 149, which adds more checks and balances to the agency’s grant-making processes to ensure adequate peer review. Lawmakers also budgeted $595 million for the institute in the 2014-15 biennium

.
Note the following appointees to the oversight committee:

State leadership has appointed new members to a CPRIT oversight committee, which guides the work of the institute and approves all grant applications. Perry and Dewhurst have each made their three appointments to the committee. Straus has made two and still has one pending appointment.

Perry appointed Angelos Angelou, founder and principal executive of AngelouEconomics and former vice president of the Austin Chamber of Commerce; Gerry Geistweidt, an attorney who has argued cases before the Texas Supreme Court, among others; and Dr. William Rice, senior vice president of clinical innovation for St. David’s Healthcare and the Central and West Texas Division of the Hospital Corporation of America.

Dewhurst appointed Ned Holmes, a businessman with experience in finance and real estate; Dr. Craig Rosenfeld, a physician and chief executive of Collaborative Medical Development, which develops treatments for neurogenerative and psychiatric diseases; and Amy Mitchell, a cancer survivor and attorney at Fulbright and Jaworski.

Straus appointed Pete Geren, president of the Sid W. Richardson Foundation, which provides grants to educational, health, human service and cultural nonprofit organizations in Texas, and Dr. Cynthia Mulrow, senior deputy editor of Annals of Internal Medicine and a member of the prestigious Institute of Medicine.

Texas Supreme Court Chief Justice Wallace Jefferson Resigns

As is customary, he leaves office prior to completing his term so that the governor gets to appoint a replacement. Jefferson (Texas' first African-American Chief Justice) himself was appointed by Governor Perry in 2001 to replace Alberto Gonzales.

From the USA Today:

Jefferson, who earns $170,000 annually, said he does not have another job lined up but hopes to continue working on judicial policy in a way that helps Texas residents.

"I want to remain open to possibilities, work that is challenging, that is meaningful, that will give me time to continue to serve the public in some fashion as a private citizen," he said.

Gov. Rick Perry appointed Jefferson to the high court in 2001, when former Justice Alberto Gonzales stepped down to become White House counsel to President George W. Bush. Jefferson won election in November 2002. Perry selected him as chief justice in 2004, and he was elected to the lead the court in Austin in 2006 and 2008. His current term runs through 2014.

Perry's office did not immediately comment Tuesday about a possible replacement. Jefferson, who is married with three sons in college, high school and middle school, said he told Perry of his plans to step down last week.

During his tenure, Jefferson has pushed for making courts more public with documents available online.

Jefferson, who formerly was in private practice in San Antonio, said he hopes that the state's courts get more direct public funding for legal aid and continuing juvenile justice reforms. He also said he hopes judges and justices stay engaged in issues affecting the state.

His resignation gives the governor another opportunity to influence the judiciary since he gets to appoint his replacement. 13 years in office has given the governor plenty of opportunity to put his stamp on the judiciary, though his ability to in fact do so has been subject to debate.

Some background:

- Supreme Court is elected but bears Perry's stamp.
- Judges appointed by Rick Perry.
- In Judicial Picks, Perry reaches Past Executive Branch.
- Perry's Texas Supreme Court picks criticized as too business friendly.
- Rick Perry and the Imperial Governorship.

The understaffed federal judiciary in a handful of charts

This is one of the factors driving possible filibuster reform.

From WonkBlog, some charts detailing the factors leading to an understaffed - and possibly weakened - federal judiciary.

One of the featured charts:

From the Texas Tribune: Texas Judges Must Face Voters Without Heeding Politics

2306 classes will start looking at the Texas Judiciary soon and we will begin to wrestle with one of the larger issues associated with it: the fact that judges in the state are elected and are therefore subject to political pressures. Justice is supposed to be blind, but the need to campaign for votes - and to fund raise in order to campaign well - makes it difficult for judges to escape the insinuation that they are swayed by elections.

Texas Tribune looks at this issue: Can you be both a good politicians and a good judge? Are the qualities that make you the former, make it difficult to be the latter? Specifically, will the fact that members of the Texas Supreme Court are elected to office impact their decision on school finance in the state?

Here comes a little test. Earlier this year, a state district judge in Austin ruled that the state’s financing of public schools was unconstitutionally inequitable and inadequate, and illegally creates a de facto statewide property tax. That ruling is widely expected to be appealed to the Texas Supreme Court and then, based on the court’s decision, to the state Legislature for a remedy. 

The political timing is sensitive. Three of the nine justices — Chief Justice Wallace Jefferson and Justices Phil Johnson and Jeffrey Boyd — will be up for election in 2014 (assuming each decides to run). Six of the nine were initially appointed to the court by Gov. Rick Perry, whose administration lost the case in district court. 

The judges are supposed to ignore all of that. Are they aware of it? Maybe, according to Dale Wainwright, who resigned from the Texas Supreme Court last year and now practices law in Austin. But you have to be a judge and hope the politics work out. 

“Maybe we’d know an issue was getting a lot of attention,” Wainwright said when asked if judges are aware of the politics surrounding a case. “It might be that we’d know that by the number of people in the courtroom. When you have that kind of a turnout, you know there’s some interest.” 

However, he added, “Our training is to separate politics from the law.”

Rick Perry's influence on the bureaucracy

According to the Texas Tribune, it is considerable - which shouldn't be too surprising given his longevity in office.

Governor Perry apoints his Chief of Staff to the Texas Supreme Court

The Texas Tribune provides details:

Jeff Boyd, chief of staff to Gov. Rick Perry, is the governor’s choice for an open spot on the Texas Supreme Court.

He’ll replace Dale Wainwright, who resigned from the state's highest civil court earlier this year. The appointment is subject to Senate confirmation.
“Jeff is a highly-respected attorney who has consistently excelled throughout his years of private practice, his terms of public service, and his leadership of important charitable organizations. His addition to the court will continue to protect the rule of law and further the tradition of defending the freedoms that Texans so vigorously uphold,” Perry said in a news release.

The Tribune provides additional context here, including the observation that Perry has now appointed seven of the nine members of the court.

Does this mean that Perry has been able to control the court through his appointment powers? Here's a story that builds on a point we make when we cover the Texas Judiciary. While they are elected to office, it is customary for judges and justices to step down early so that the governor can fill vacancies with people of their choosing, and since judicial races are generally non-competitive and people know little about the candidates, those appointees tend to be easily elected to full terms.

This raises a provocative question: Does the Texas governor fully control the judicial branch? Do we have a functioning system of separated powers in the state?

From Bloomberg: This Election Is About the Court, Not the Economy

I asked some classes to consider the impact this election is likely to have on the Supreme Court. Here's the same question addressed by a national reporter. He thinks its huge. The next president will shape the court for the next generation.

Somehow the campaigns have failed to remind us that four justices are 74 or older, meaning they will be at least 78 by the end of the term. Justice Ruth Bader Ginsburg is already 79, with Justices Antonin Scalia and Anthony Kennedy not far behind at 76 and Justice Stephen Breyer at 74. One hopes of course they all live long lives, but the notion that all four will still be willing and able to serve the next four years is preposterous. Several will retire and be replaced -- and even one replacement could fundamentally change the configuration of the court.

If Romney becomes president, Ginsburg will certainly do all she can to remain in the saddle. But if she were to have to retire for health reasons (she has been treated for colon cancer and pancreatic cancer), the court would become ineluctably conservative. The present 4-to-4 split with Kennedy as the swing vote would change into a stable 5-to-3 conservative majority, with Kennedy no longer important.

Under Romney, Scalia might retire to give a Republican president the chance to replace him with someone young and comparably conservative. That would consolidate the conservative majority of Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas (now 64) for as long as Thomas stayed healthy.

Or consider the scenario where Obama is re-elected and either Scalia or Kennedy is replaced by a relatively more liberal justice. That would in turn create incentives for Ginsburg and Breyer to retire, which would allow the possibility of a five-justice liberal majority in which Justice Sonia Sotomayor, now 58, would be the eldest.

A proposal for term limiting Supreme Court Justices

From the NYT:

In 2009 a politically diverse group of law professors, including me, proposed a system that would work around the need to amend the Constitution — an extremely unlikely possibility — yet still capture the benefits of term limits.

Here’s how our plan would work. Every two years the president would appoint a new justice to the court, but only the nine most junior justices, by years of service, would sit and decide every case.

The rest would then act as a sort of “bench” team, sitting on cases as needed because of the disability or disqualification of one of the junior justices. These senior justices might also help decide which of the thousands of petitions the court receives each year should be fully considered, vote on procedural rulemaking, and perhaps sit on occasional cases presented to lower circuit courts.

In short, our proposal would revise the job of a justice to a more human scale and perhaps make the court less likely to impose erratic political preferences on the citizens it governs. Because it would assure regular turnover, the court would experience fewer long-term ideological swings, enabling it to better do its original job of anchoring the legislative process to the Constitution.
This fits with our recent dicsussions in 2302, but 2301s - since we just discussed elections - should consider how this proposal might moderate the impact that the general population has on the Supreme Court.

The Senate Block Several Obama Nominees

More tales of checking and balancing:

First: The Senate on Thursday blocked President Obama’s nominee to head the Consumer Financial Protection Bureau, as filibustering Republicans who oppose the very powers of the new agency successfully challenged one of the administration’s main responses to the financial crisis.

The nomination of Richard Cordray was rejected after Democrats failed to achieve the 60 votes they needed to move his nomination forward. The vote was 53 yes, 45 no.

Second: Senate Republicans on Tuesday blocked confirmation of Caitlin J. Halligan, a prominent New York lawyer, to be a federal appeals court judge, raising the question of whether a political deal to prevent the filibuster of most judicial nominations has broken down.

Democrats failed to pick up the 60 votes needed under Senate rules to break a filibuster of a confirmation vote for Ms. Halligan, a former New York State solicitor general. The vote to break the filibuster was 54 to 45 and was largely along party lines; only one Republican, Senator Lisa Murkowski of Alaska, favored allowing an up-or-down vote on Ms. Halligan, while no Democrats voted against it.

Third: Dr. Donald M. Berwick, the official in charge of Medicare and Medicaid, who became a symbol of all that Republicans dislike in President Obama’s health care policies, said on Wednesday that he was resigning.

Mr. Obama first nominated Dr. Berwick in April 2010, but he never received a Senate confirmation hearing. More than 40 Senate Republicans urged the White House to withdraw the nomination last spring, and many vowed to block confirmation.

Senate votes to streamline confirmation process

From the Washington Post:

The Senate Wednesday voted 79-20 to approve legislation to streamline its confirmation process by reducing the number of positions requiring full Senate confirmation and requiring fewer nominees to go through a full confirmation procedure.

The action, which removes 169 of the total 1,416 jobs now requiring Senate approval, had been something of a foregone conclusion since a bipartisan group of senators, including Majority Leader Harry Reid (D-Nev.) and Republican leader Mitch McConnell (Ky.) signed on in January.

The jobs in that category — such as assistant secretaries of public affairs — are generally ones that rarely spark partisan Senate battles.

Adminstering Dodd-Frank

The NYT points out that while financial regulation laws were passed last year, the agencies it established have yet to be staffed. This has the obvious consequence:

Without strong leaders at the top of the nation’s financial regulatory agencies, the Dodd-Frank financial reform doesn’t have a chance. Whether it is protecting consumers against abusive lending, reforming the mortgage market or reining in too-big-to-fail banks, all require tough and experienced regulators.

Too many of these jobs are vacant, or soon will be, or are filled by caretakers. So it was a relief last week when President Obama said he had decided on a well-qualified nominee to be the new chairman for the Federal Deposit Insurance Corporation and would make other nominations soon. The White House needs to move quickly and be prepared to fight.

Much of the blame for the delays lies with Republican lawmakers who have consistently opposed qualified candidates. In the case of the new Consumer Financial Protection Bureau, they have vowed to obstruct any nominee unless Democrats first agree to gut the agency’s powers. Until now, the administration hasn’t pushed back.

This points out a secondary way that legislation can be curtailed. If the opposition lacks the strength to stop a law from being passed, they may be able to use obstruction as a way to ensure that the law is not implemented as originally intended.

Patronage in Texas

For 2301, a study by Texans for Public Justice - a bit harsh - of the relationship between the Governor's political contributors and appointees.

- Follow up story in the Chron.

Crisis in the Federal Judiciary

Judicial vacancies were already high, but have doubled since Obama took office.

- NYT: Empty Bench Syndrome.

On Obama's Judicial Appointees

From the Huffington Post:

As the first congressional session of Obama's presidency draws to a close, what began as a slow process of confirmation has ballooned into a full-blown judicial crisis. The Senate has overseen the slowest pace of judicial staffing in at least a generation, with a paltry 39.8 percent of Obama's judges having been confirmed, according to numbers compiled by Senate Democrats. Of the 103 district and circuit court nominees, only 41 have been confirmed.
By this time in George W. Bush's presidency, the Senate had confirmed 76 percent of his nominees. President Clinton was working at a rate of 89 percent at this point in his tenure.
More:

- Jonathan Chait.
- Jonathan Bernstein.

Head Count

Here's a page outlining Obama's appointments.