Major Award: Federal Judge of the Week, Possibly the Decade.

Loyal Readers™ may recall our most recent Coathanger Lobby update, in which we reported that federal Judge Edward Korman called the Obama administration’s decision to override its own agency’s recommendation to make Plan B One-Step emergency contraception available over-the-counter without restriction, “politically motivated, scientifically unjustified, and contrary to agency precedent.” Judge Korman ordered the administration to make it as available as, say, toothpaste. Or condoms.

The Obama administration appealed that decision. But on the eve of the appeal deadline, it approved over-the-counter sales of Plan B One-Step for those age 15 and above provided they produce proof of age with photo ID. I wrote then:

In a noxious bit of lawyering befitting the sleaziest of the profession (and that is saying something, my friends), the administration relied on its brand new 15+ approval rule to argue in its appeal that the case is moot because the plaintiffs — who happened to be 15 or older —”now have access without a prescription and without significant point-of-sale restrictions to at least one form of emergency contraceptive…”

This was, of course, in direct defiance of the Judge Korman’s order.

I also noted of the new 15+ with ID policy:

It’s bad enough that this leaves girls 14 and under to their coathangers and friendly neighborhood Gosnells, but it isn’t even true. 15 year olds — particularly urban and/or poor 15 year olds — typically have no drivers licenses or access to other forms of state ID, and thus will not be able to purchase Plan B. FDA spokeswoman Stephanie Yao said in an interview, “If a 15-year-old is unable to verify their age, they will not be able to purchase Plan B One-Step.”

Well. In an appeal hearing this Tuesday morning, Judge Korman did not exactly take to kindly to the administration’s disingenuous poo-flinging and rained down righteous scorn upon it — along with some primo mockery. It is truly a thing of beauty to behold.

Via Irin Carmon at Salon in a piece titled Judge rips Obama’s right-wing Plan B stance:

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 …”

As an aside, and as a public service to my Many Tens of Loyal Readers™, I would like to take this opportunity to point out that it is rarely, if ever, a good idea to lie to a federal judge.

Anyway, there was more:

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.

Korman made clear why he found that to be an inadequate compromise: “You’re using these 11- and 12-year-olds to place an undue burden on women’s ability to access emergency contraception. If it’s an impediment to voting, it’s an impediment to get the drug.”

This last point unequivocally reveals that the administration is acting here on something other than any sound principle: if ID is a barrier to voting — and of course it is — then ID is a barrier to purchasing Plan B One-Step. Judge Korman pointed out that in a speech to the NAACP regarding various villainous voter ID laws, Attorney General Eric Holder himself cited statistics “showing that 25 percent of African-Americans of voting age don’t have a photo ID.”

Voting age, as you may recall, is 18.

Korman did not say, “You lying hypocrites cannot have it both ways,” although he might as well have. Judge Korman also dismissed out-of-hand the suggestion that 15-year-olds could simply use a birth certificate to purchase Plan B One-Step, and on such painfully obvious grounds that I cannot even believe the government made such a stupid argument: a birth certificate is not a photo ID. Irin Carmon also points out that although the Judge did not note it, immigrant women would also be adversely affected by the ID requirement. Korman said:

”You’re disadvantaging young people, African-Americans, the poor — that’s the policy of the Obama administration?”

Why, yes. Yes it is. Unless, like other right-wing misogynists, the Obama administration next plans to make the case that young, African-American, and/or poor women are not really people. You know, with actual human rights, and stuff.

Oh, but there was still more:

The government has said it put the age cutoff at 15, because [Plan B One-Step manufacturer] Teva had asked them to in their petition. But Korman said that in previously unreleased correspondence between the FDA and Teva, the government had specifically instructed the company to reapply in that fashion after rejecting its first attempt to lift all age restrictions. When he tried to read aloud from one of those documents, a tense standoff resulted, in which Teva’s representative cut in and insisted that the correspondence was confidential. But Korman did get as far as, “We are amending our application to address the Secretary’s stated concern …” In other words, the new restrictions were apparently initiated by the Obama administration as a compromise move.

And he wasn’t done yet:

[Lawyer for the government Frank] Amanat argued that making a hormonal drug like Plan B over-the-counter was unprecedented, and that the public interest was served “when the government acts deliberately and incrementally.” Korman cut in sarcastically, “Tell me about the public interest. Is there a public interest in unplanned pregnancies? Some of which end in abortions?”

Korman also took a shot at Teva over the pricing of Plan B One-Step, which runs about $50, pointing towards Teva’s representative and referring to “Those price gougers over there.” Hahaha. Awesome.

Perhaps Judge Korman’s most astute — and most damning — observation is this one:

“It turns out that the same policies that President Bush followed were followed by President Obama.”

Would that the members of the federal judiciary were so inclined to take on Obama’s DOJ in matters of torture, war crimes, state secrets, drone assassinations, illegal wars and indefinite detention, instead of getting the vapors at the mere utterance of the words “national security” or “terrorism.”

Regardless, for all of the reasons noted above, Perry Street Palace is pleased to bestow its highly coveted Major Award for Federal Judge of the Day, Possibly the Decade, to

Hon. Edward R. Korman*
United States District Court Judge for the Eastern District of New York.


Congratulations, Your Honor. We know of no one more deserving today of this form of address: you truly do honor to justice.


* Judge Edward R. Korman was appointed to the federal bench by President Ronald Reagan, which would ordinarily disqualify candidates for the prestigious Perry Street Palace Major Award for Federal Judge of the Day, Possibly the Decade. But in light of the above, the Palace cannot hold that against him.

4 thoughts on “Major Award: Federal Judge of the Week, Possibly the Decade.

  1. I ask this in all seriousness as a non-American – to what extent is this ‘judicial activism’? By which I mean, could the judge have taken the exact opposite viewpoint if he was a teabagger? Was he simply following the rule of law/past precedent* to come to this conclusion or is there an element of crusading here? While the snark is wonderful, was this more or less a foregone conclusion to the legal challenge?

    Disclosure: I am a geologist and law is an foully impenetrable morass of not-rocks to me

  2. And at the risk of being an over-commenting embarrassment, the above “a judge” should say “the judge” – I did not mean to imply that judges are, by default, male. Bless ‘ee Pharyngula

  3. Hello Badland, and welcome to the Palace.

    In practice “judicial activism” means only “decisions right-wingers don’t like.” In reality very few judges on the federal bench do not follow precedent: they do not want to be reversed on appeal. However, this is not the case with the U.S. Supreme Court from which there is no appeal, save an act of Congress (see e.g. The Lilly Ledbetter Fair Pay Act of 2009). The Supreme Court can and does engage in judicial activism in which they overturn or do not follow their own precedent: they did so most famously in the disastrous Bush v. Gore decision, and the conservative majority is chomping at the bit to do it again and overturn Roe v. Wade.

    From what I understand, the decision in the Plan B One-Step case rests on arcane administrative law, an area with which I am not familiar. Because the Obama administration’s actions in overruling the FDA were unprecedented, I suspect that after looking at the statutes that define the purview of the FDA and any legal precedent with respect to other federal agencies that may be analogous, the judge had some wiggle room to come out one way or the other. If so, the 2nd Circuit Court of Appeals could find the same wiggle room and come out differently, and the Supreme Court needs none to overturn it (the conservative majority’s deference to Executive power is legendary, and Obama appointee Elena Kagan seems very much on board with it as well).

    As for personal incentive to come out one way or the other, it couldn’t have helped the government’s case when they made terrible and disingenuous arguments. I mean, judges are supposed to be objective, but they are only human and subject to the same biases as the rest of us — and this one was seriously pissed off.

    Sometimes the law is a foully impenetrable morass, period.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s