Governor’s Council Fiasco Claims First Political Casualty

The Governor’s Council mishandling of the nomination of Joe Berman to a Superior Court judgeship has been a front page story for close to a month.
       
This morning it claimed its first political victim.

And it wasn’t Joe Berman.

Councillor Jennie Caissie has been positioning herself as a potential running mate for Charlie Baker for several months. 

After all, it has been well known that Baker wanted to name a woman to help balance out the ticket.  (And by picking a running mate before December 31st, Baker can tap the donor base twice – once in each calendar year.  So time has been running short.)

But three weeks ago Caissie aggressively interrogated Berman on his role as a member of the New England ADL Board.

Last week, after panning her performance at the Berman hearings, the Boston Herald editorial page acidly noted: “And to think some in the GOP were foolish enough to tout [Caissie] as lieutenant governor material.”

That was the last impression voters – and Baker --  read before Baker’s decision.

This morning, Baker chose Karyn Polito, a former candidate for Treasurer. 

Would Baker have chosen Caissie otherwise?

We’ll never know, but it’s hard to think that her performance at the high-profile Berman hearings did anything to help her chances.

The Governor's Council and Qualified Nominees

I attended the Governor's Council meeting yesterday morning, and came away shaking my head.

 

Some context: at the Council meeting yesterday, the nomination of Joe Berman for a seat on the Massachusetts bench was hotly discussed.  

(Full disclosure: Joe is friend.  In addition, my law firm has worked side-by-side with Joe as co-counsel, so I know him both personally and professionally.)

Joe is a clearly-qualified candidate, with degrees (cum laude) from both Dartmouth and Michigan Law.  Joe is a vigorous advocate who nonetheless holds himself to the highest ethical standard.  He has received the President’s Award from the Boston Bar Association for his pro bono work.  His peers have voted him one of the Top 100 lawyers in New England.

 

Let me say that again: his peers voted him one of the best 100 lawyers in all of New England.

No one at the Council hearing yesterday, nor to my knowledge, in any previous hearing, has raised questions about Joe’s qualifications. 

I urge the Governor’s Council to confirm Joe Berman for the Massachusetts Superior Court.

All Mass. Politics is...Global?

Two items of note in Massachusetts politics:

* Although the opinion polling is all over the map, Britain appears to be headed for an election tomorrow where no party controls a majority of seats in Parliament. In such a case, Labour's Gordon Brown may sneak in to another term as PM, a result that few would have predicted at the start of the campaign.

In a rally on the eve of the election, Conservative leader David Cameron neatly summarized the "trilemma" of a three-party field:

Don't stay at home and let the old guard in. Don't vote for the Liberal Democrats and let Gordon Brown in.

Meanwhile, Brown himself had to tamp down controversy today after two Labour ministers had urged tactical voting against the Conservatives yesterday.

All of which should have a familiar ring to Massachusetts voters: in any three party race, the calculus for victory becomes infinitely more difficult. GOP Charlie Baker has suffered through a slow spring -- including a brutal send-up by Globe columnist Brian McGrory -- and he recently replaced his campaign manager as he tried to determine where to focus his fire: on incumbent Dem Deval Patrick, or Independent (and former Dem) Tim Cahill.

Patrick (and to a lesser extent, Cahill) has had a good campaign so far -- aggressively promoting his own record (including the swift resolution of the Boston drinking water issue this past week) and pushing back against Baker. Baker and Cahill now appear to be fully engaged with each other, which also suits the Governor's purposes.

And finally, the race itself is reflecting larger political trends: the latest round of anti-Cahill ads have been sponsored by the Republican Governor's Association, which itself has emerged as a counter-weight to the scandal-plagued Republican National Committee. The current head of the RGA? Former RNC chief (and Miss. Governor) Haley Barbour.

* Meanwhile, despite a desultory -- and well-documented -- performance in the Senate race this winter, Martha Coakley appears poised to be re-elected to a second term as Massachusetts Attorney General. No opponent filed the necessary signatures to get on the November ballot, which means Coakley will be unopposed (save for a long-shot sticker campaign.)

Just a few months ago, in the aftermath of Scott Brown's victory, many considered Coakley to be "vulnerable."

But one is perhaps reminded of the words of Chicago Mayor Richard Daley, speaking to then-State Senator Barack Obama after the latter's embarrassing 31-point loss to Congressman Bobby Rush, a short time after Rush had been defeated by Daley in a mayoral race:

[w]hen the results were in Daley phoned [Obama] -- not to console him but to explain why Obama had screwed up.

"I said, 'Why did you run against him?'" Daley [said].

Obama replied that Rush's loss to Daley had suggested that Rush was vulnerable.

Daley went on, "No, an election doesn't show you're weak. The other person just got more votes. So there is not weakness in your opponent. Maybe it taught you a good lesson."

One that perhaps ambitious Massachusetts pols learned faster than a future POTUS.

"Only don't tell me that you're innocent."

The Associated Press has mapped stimulus dollars to each county in the United States. Here's how the county-by-county breakdown went in Massachusetts:

Barnstable - $17.4M total / $78 per person

Berkshire - $20.7M /$160 pp

Bristol - $100.3M / $184 pp

Dukes(*) - $4.1M / $268 pp

Essex - $50.5M / $68 pp

Franklin - $26.3M / $366 pp

Hampden - $8.9M / $19 pp

Hampshire - $20.3M / $132 pp

Middlesex - $100.1M / $68 pp

Nantucket - $7.7M / $733 pp

Norfolk - $24.8M / $38 pp

Suffolk - $108.6M / $151 pp

Worcester - $78.8M / $101 pp

(*) Dukes County is comprised of Martha's Vineyard.

Changing the Landscape for FDA Approvals

New column (co-written with Terry Klein of HPLLP and Decisionism) on the Mass High Tech page today. Text below:

The U.S. Supreme Court revisited the balance between federal and state authority over drug regulation last month. The result may have long-lasting impacts for drug researchers and manufacturers. By affirming a multi-million dollar verdict in a product liability case -- rejecting a drug maker’s argument that a federally approved label bars state law claims -- the court effectively required drug manufacturers to closely monitor side effects even after U.S. Food and Drug Administration approval. This decision deviates a bit from recent case law and deserves an explanation. There may also be implications for device manufacturers.

The case of Wyeth v. Levine involved administering Wyeth’s anti-nausea drug Phenergan by the “IV-push” method. Susan Levine, a professional musician, suffered from migraines and received a needle-with-plunger injection of Demerol (for the headache) and Phenergan (for nausea). Because the latter drug accidentally entered one of Levine’s arteries – rather than a vein, as advised by the label – gangrene set in that resulted in the loss of Levine’s arm, and her livelihood.

Levine sued on state law grounds, and a jury found that because the risk of gangrene and amputation could be almost always avoided by the “IV-drip” (a drip bag using saline solution) rather than the “IV-push” method (as was used). Wyeth was negligent and that IV-push-administered Phenergan was a defective product. Wyeth had been aware of the gangrene risk since at least 1967.

Wyeth’s defense relied on FDA approval, and therefore federal “preemption” of state law. The FDA approved Phenergan in the 1950s, subject to labeling that included a general gangrene warning. But over the years, even as Wyeth became aware that the IV-drip method all-but-eliminated the catastrophic risks, the company did not sufficiently update its label. After all, it argued, the label described the risk, and the FDA had approved the language.

The Supreme Court held that Wyeth had a duty to update its labeling to reflect the knowledge that it acquired over the years. (Interestingly, Congress authorized the FDA only in 2007 to compel label revisions in the face of new [adverse] information.) FDA requirements, according to the court, are a “floor” and not a “ceiling” for state regulation.

The Wyeth result –- allowing a tort case to proceed even though there was FDA approval –- initially appears to contradict the Court’s decision a year ago in Riegel vs. Medtronic. There, the Court reviewed a different statutory section, which empowered the FDA to review medical devices prior to introduction and explicitly pre-empted state regulation. As a result, the court in the 2008 Medtronic case barred state tort claims arising from damage caused by FDA-approved medical devices. (Further complicating matters, in a 1996 device case involving Medtronic and a still different section of the statute, the court found that state tort claims were not preempted.)

Because the applicable federal pre-emption provision for drugs is narrower, the Wyeth decision came out the opposite way (i.e., against the manufacturer). This means that even after FDA approval, drug makers have a duty to monitor their products and update their labels.

Finally, there is an unanswered question for device manufacturers: Having obtained FDA approval, what obligations do they have when a defect comes to light after approval? Justice Ginsburg, the sole dissenter in the 2008 Medtronic case, raised that question in her first footnote in that case. The question for the future is whether the court will find the statutory device preemption language (whether-or-not subject to a product recall) or a pattern of post-FDA-approval harm to be more compelling. And for observers who assumed that there is a reliable pro-business majority on the Roberts court, the Wyeth decision suggests a less certain result than the industry might prefer.

Ummmmm...

The Globe reports on Page B3 (B3?) that the Commonwealth has borrowed $1B to cover a revenue shortfall, well in excess of the "normal" borrowing that apparently occurs in the last quarter of the year.

Revenues are down about 2.8%, which seems to be inconsistent with an economy that is growing (albeit at a low rate.) Or perhaps the low tax revenues are the proverbial canary in the colemine.

Or it is time to say "Look out below..."?

"I Hate You More..."

It was noted a few weeks ago in this space that Mitt Romney (and for that matter Rudy Giuliani), had made a habit of bashing his 'home' state -- Massachusetts -- as part of his campaign's effort to position him as a true conservative who had to trim his sails to be elected in one of the most liberal states in the Union.

But the polls reported above by WBZ yesterday, has to give even the most ardent Romney supporter in Massachusetts pause. Romney does worse in a hypothetical match-up among Bay State voters with Hillary Clinton than Rudy (Romney would lose 65%-31%; Rudy would lose, 59%-34%).

Worse than the raw numbers (and a 2:1 margin is bad in any state, let alone one where you were governor) were the 'man-on-the-street' interviews put together by Jon Keller. (And Keller is no goo-goo liberal; his recent book "The Bluest State" calls Massachusetts, a "Brigadoon of 1960s liberalism.")

The Pope and Mitt Romney

Pope Benedict, on a plane headed to Brazil, made news last night when he suggested that Catholic politicians who vote in favor of abortion (or, presumably, other Catholic doctrine), would be subject to ex-communication from the Church. The Pope was apparently referring to Mexican politicians who recently liberalized abortion rights in that country, but his comments must be read in the context of a Church increasingly calling Catholic politicians to account (in Italy in 2005, with John Kerry in the 2004 Presidential race) when they vote -- or support -- abortion rights.

Kerry struggled with the abortion issue, and his Catholic faith, throughout the 2004 campaign. While he continued to go to Mass and stated his personal opposition to abortion, was he considered (and is) a reliable pro-choice vote. In the Spring of 2004, a number of bishops stated that he should not continue to receive the sacrament of communion if he were to continue to vote against Church doctrine.

Kerry's position -- personal belief against abortion, but political support of pro-choice legislation -- harkens back to the Catholic politician's "position-of-choice" since 1960, when John Kennedy faced anti-Catholic sentiment in his bid for the White House. The original JFK felt that he needed to address the concern that, if President, he would be subject to instruction from the Pope or other church leaders. Speaking in Houston, in September of 1960, he said:

But because I am a Catholic, and no Catholic has ever been elected President, the real issues in this campaign have been obscured -- perhaps deliberately, in some quarters less responsible than this. So it is apparently necessary for me to state once again -- not what kind of church I believe in, for that should be important only to me -- but what kind of America I believe in.

I believe in an America where the separation of church and state is absolute; where no Catholic prelate would tell the President -- should he be Catholic -- how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference, and where no man is denied public office merely because his religion differs from the President who might appoint him, or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accept instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials, and where religious liberty is so indivisible that an act against one church is treated as an act against all.

The original JFK put the 'religious issue' behind him once and for all. (To be sure, Kennedy had tried to deal with the issue earlier in the campaign (e.g., a speech to the American Society of Newspaper Editors in April, 1960), but the Houston speech was the one that is remembered as effectively ending the issue in the general election.) His Houston speech has become part of the American political experience: of course the Leader of the Free World may consult with the Pope from time-to-time, but as one head of state to another, not as a Catholic seeking, in Kennedy's words, "instructions."

So what does all of this have to do with Mitt Romney?

Mormons (or Latter Day Saints) stand in a somewhat parallel position today to Catholics in 1960. The religion, while wide-spread in the United States, is not well-understood and has suffered a history of persecution; the current PBS series "The Mormons" highlights some of the mis-understandings.

Analagous to the Pope for Catholics, Mormons are led by a sole individual (the President of the Church, the most senior member of the Apostles (a select group of 12 individuals)). The (Mormon Church) President's views, while perhaps not perceived as 'infallible', undoubtedly carry great weight for Latter Day Saints.

If the Pope continues to press the issue with the Catholics in the Presidential race (Dodd, Biden, et al), it will make them uncomfortable. But the attention that the Pope (or other Catholic bishops) bring to the Catholic politicians will -- sooner or later -- raise the Romney/Mormon President issue. And while Catholic politicians may reference JFK's Houston speech, Romney have to define his own relationship with his church, and its leaders.

Update: Another potential politican with a "Catholic doctrine" problem: Rudy Giuliani, who yesterday decided that he will run a 'pro-choice' GOP campaign.

"...and the dream will never die."

Scot Lehigh's column in today's Globe put it bluntly: "And so the dream ends for John Kerry. He will never be president."

By removing himself from the 2008 campaign, Kerry has effectively ended his aspirations; the end of a life-long dream must be difficult for a man who worked so hard, and so long, to put himself in position to be President.

One question that must be ringing through Kerry's mind (together with those close to him) this morning: could he have done more to try to win Ohio (or one of the other swing-states) in 2004?

Finally, Lehigh's column brings back the end of the Presidential dreams of another Massachusetts senator:

"For me, a few hours ago, this campaign came to an end. For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die."

Senator Edward M. Kennedy - August 12, 1980

Fan Pier Construction Begins

After many false starts, construction on the Fan Pier hotel has apparently begun, with the delivery of (what appear to be) construction modules last night (1/23/2007). The changing face of Boston's waterfront looks like it will begin in earnest.

A New Day

We saw unique images from new Governor Deval Patrick's swearing-in ceremony yesterday. Instead of the dark, wooden confines of the State House, we saw open skies, balmy temperatures, and overflowing crowds. Politics is not all about image, but it doesn't hurt to have good pictures.

Here's to success for Deval and this team in the 'hard work of governance.'