Attorney General Pushes for Estrada Confirmation

Tuesday, September 24, 2002

WASHINGTON — Attorney General John Ashcroft "strongly urged" the Senate to confirm the nomination of Washington lawyer Miguel Estrada to the District of Columbia Circuit Court of Appeals.

"Miguel Estrada's nomination is a testament to his talent, his perseverance and his intelligence. He is superbly qualified. He has been praised by a broad range of supporters, including prominent Democrats," Ashcroft said Tuesday after emerging from a meeting with federal judiciary officials assembled at the Supreme Court. "I strongly urge the Senate to confirm Miguel Estrada to be the first Hispanic-American to sit on the D.C. Court of Appeals."

The Senate is expected to take up the Estrada nomination on Thursday. He was nominated 506 days ago, in May 2001, along with 10 other nominees.

A confirmation could put Estrada, an American of Honduran descent, in position to become the first Hispanic Supreme Court justice. The District Court is known as a stepping stone for Supreme Court justices. Three current justices -- Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg -- sat on that appeals court.

But Democrats plan to stand in Estrada's way. Sen. Charles Schumer, D-N.Y., one of the leading opponents to Bush's drive to put conservatives on the federal bench, scheduled a hearing Tuesday on the D.C. Circuit and the importance of "ideological balance" on what is called the nation's second highest court.

Democrats accused Republicans of stalling former President Clinton's nominees for the D.C. appeals court in hopes of putting conservatives in those slots. No one has been confirmed for the court in five years.

Ashcroft called the vacancy rate in the judiciary an alarming crisis, adding "it is simply imperative that our third branch of government -- the judiciary -- be fully staffed to operate at maximum efficiency."

Seventy-seven vacancies exist in the courts, 10 more than when the 106th Congress adjourned before the 2000 election. Ashcroft said 13 of those vacancies are emergencies, and need to be filled immediately. There are seven vacancies out of 16 seats in the 6th Circuit Court that covers Kentucky, Ohio, Michigan and Tennessee.

But whether Estrada will be the next Appeals Court justice in the District remains to be seen. Already Democrats have twice used their one-member majority to defeat Bush nominees on party-line votes.

Estrada, by all accounts, has a brilliant legal mind. The American Bar Association calls him well-qualified, having argued 15 cases before the Supreme Court, and winning 10 of them.

A partner in the law firm that helped win the presidency for Bush during the Florida election recount, Estrada came to the United States at age 17 from the Honduran capital of Tegucigalpa. He quickly learned English and ultimately graduated from Harvard Law School in 1986.

"It's amazing what he's been able to accomplish," said Solicitor General Ted Olson, Estrada's former law partner.

To his critics, Estrada, a naturalized citizen, did not suffer the same struggles as many immigrants. The son of a lawyer and bank president, Estrada lived a life of privilege in Honduras, according to the Puerto Rican Legal Defense and Education Fund.

"Mr. Estrada has not lived the educationally or economically disadvantaged life his proponents would have others believe," said Juan Figueroa, the group's president. "Nor have Mr. Estrada's life experiences resembled or been shared with those of Latinos who have experienced discrimination or struggled with poverty, indifference or unfairness."

At his nomination hearing Thursday, Estrada, like all of Bush's appeals court nominees, will be asked if he can keep his personal views on issues apart from his duties as a judge. Estrada has said that he can judge without favor to any side.

"In my view, federal judges may decide only concrete cases or controversies that properly come to them," he said in response to a questionnaire from the Senate committee. "They may not 'make law' or reach beyond the facts and circumstances of the particular case they must decide."

The Associated Press contributed to this report.

Newest liability victims: West Virginia emergency patients

Hospitals nationwide are scrambling to find the subspecialists needed to keep emergency departments running 24/7.
By Tanya Albert, AMNews staff. Sept. 16, 2002.

A West Virginia hospital that struggled over the past year to keep its Level I trauma center adequately staffed has lost its fight.

The West Virginia Emergency Medical Services office in August downgraded the Charleston Area Medical Center to a Level III trauma center, down from a Level I center equipped to handle serious injuries 24 hours a day, seven days a week.

CAMC didn't have enough orthopedic surgeons to cover the hospital. Sky-high medical liability rates and physicians' inability to find affordable insurance helped lead to the shortage.

The hospital -- which also had been struggling to keep its neurosurgeons and plastic surgeons -- saw the number of orthopedic surgeons available for call shrink to five, less than half the number covering the emergency department two years ago.

"We already know that people will have poorer outcomes," said David Kappel, MD, state chair for West Virginia's committee on trauma for the American College of Surgeons.

An estimated 800 to 1,000 patients -- about 40% of the people who came into the emergency department every year -- are expected to go elsewhere, according to a CAMC spokesman.

40% of emergency patients will need to go to other hospitals.
But hospitals that can treat severe trauma patients are few and far between in West Virginia. The downgrade leaves just one Level I trauma center in the state -- about three hours north in Morgantown -- and only one Level II center in Huntington, about 45 minutes west of Charleston.

"This is a major, major blow to the patients of this state," said Ahmed D. Faheem, MD, past president of the West Virginia State Medical Assn.

"It's a serious problem," added William D. Ramsey, MD, medical director for the West Virginia Emergency Medical Services office.

In the past year, emergency departments across the country have had to divert patients because they didn't have the doctors they needed.

Trauma centers from Florida to Pennsylvania have been at risk of not being able to treat patients because a group of neurosurgeons, orthopedic surgeons or other high-risk group hasn't been able to find affordable insurance.

And as regulatory agencies in various states evaluate hospitals, there could be other downgrades in the future, said Seattle emergency physician Matthew Rice, MD, chair for the American College of Emergency Physicians' professional liability task force.

"Every day, emergency departments struggle to find physicians to take call," he said.

System already strained
The medical liability problems come at a time when emergency departments already were dealing with other pressures that have mounted over the past decade, said Dr. Rice, who also has a law degree and is a vice president for Team Health West, an emergency department management company.

Between 1997 and 2000, emergency departments saw a 14% increase in visits, up to 108 million in 2000 versus 94.9 million in 1997, according to the ACEP. During that same time, the number of hospital emergency departments decreased to 3,934 from 4,005.

Low managed care reimbursement rates, physicians less willing to open themselves up to high-risk cases that could lead to lawsuits and a desire to work fewer night and weekend hours also have steered physicians away from taking patients on call.

"But the true crisis right now is trying to sort through the medical liability insurance issue," Dr. Rice said. "It can only be resolved at the federal level."

Legislation that the American Medical Association supports has been introduced in the U.S. House of Representatives and Senate that is based on reforms enacted in California more than two decades ago. The bills include a $250,000 cap on noneconomic damages in medical malpractice cases and a limit on the number of years patients would have to file a lawsuit.

"Why should West Virginia patients or patients in any other state be put at increased risk all because lawmakers refuse to enact proven reforms?" asked AMA President-elect Donald J. Palmisano, MD. "It is an emergency situation when a city loses a Level I trauma center because of the medical liability crisis."

Improving conditions
In an ideal world, it would take about six months for the Charleston Area Medical Center to reopen its doors, but realistically it could take up to two years to recruit the physicians needed to keep the center staffed at Level I status.

"We're continuing our efforts to recruit physicians, but it's been an uphill battle," said Andy Wessels, CAMC spokesman. "We want to get the designation back, and we will do everything we can."

EDs nationwide dropped from 4,005 in 1997 to 3,934 in 2000.
West Virginia hospitals and physicians believe that state tort reform could go a long way toward solving the recruiting problem and other problems associated with medical liability insurance.

The WVSMA supports medical liability reforms on the state level, including a $250,000 cap on noneconomic damages, Dr. Faheem said. For the past two years, physicians have called on the Legislature for medical liability reforms, but they haven't gotten too far. With the downgrading of the Level I trauma center in the state capital, however, things could be different this time.

"I'm pretty sure it was a wake-up call," Dr. Faheem said. He noted that for the first time since West Virginia started experiencing problems, editorials in local newspapers have joined the call for the state Legislature to do something.

West Virginia lawmakers go back in session in January 2003.

"I hope everyone involved appreciates the seriousness of the situation," Dr. Ramsey said.

Democrats Kill Owen Nomination

Thursday, September 05, 2002
By Kelley Beaucar Vlahos

WASHINGTON — In an action Republican members said was "crossing a threshold" of congressional irresponsibility, Senate Democrats effectively killed President Bush's nomination of Texas Supreme Court Judge Priscilla Owen Thursday.

After a series of statements condemning the judge for what they said was her conservative activism on the bench, Democrats on the Senate Judiciary Committee rejected her nomination to the 5th U.S. Circuit Court of Appeals on a strict 10 to nine party line vote.

This was the second Bush nominee to be rejected on a party line basis, the first being Judge Charles W. Pickering. Republicans charged that Owen had been consistently endorsed as a well-qualified justice with an unblemished record, and that Democrats for the first time had rejected a nominee based solely on the fact that she did not pass their own ideological litmus test.

"Today my colleagues are set to reject a nominee that is unblemished in every respect," said Utah Sen. Orrin Hatch, a ranking Republican on the Senate Judiciary Committee.

Calling the rejection of Owen an "injustice," Hatch said, "today is a day that we will long regret, on both sides of the aisle."

Hatch said he was informed going in to today's vote that Democrats had decided long before today to reject the judge who has been walloped by criticism from liberal special interest groups, many of whom had helped to kill Pickering's nomination earlier this congressional session.

Democratic Sen. Patrick Leahy, chairman of the committee, and Sen. Diane Feinstein, D-Calif., who led Owen's nomination hearing in July, opened the Democratic charge against the judge Thursday by calling her a conservative extremist who worked to place barriers to a woman's right to choose an abortion on numerous cases in Texas.

Leahy said a major problem with Owen was "her extremism even in the conservative region of the Supreme Court of Texas."

He and Owen's critics, led by groups like People for the American Way and the National Abortion and Reproductive Rights League, centered their attacks on a 1999 opinion Owen wrote against an exemption for a 17-year-old girl who wanted to get an abortion without parental notification.

Her opinion at the time was criticized by Judge Alberto Gonzalez, who served with her on the court and is now White House Counsel. He has since softened his tone, though her critics have used his words more than once to emphasize their arguments against her.

Feinstein said Owen has been led by her ideology, rather than the law, and that the appellate court in New Orleans, for which she has been nominated, would suffer for that.

"Not only does this appellate court represent many people who are poor, many people who are minority, many people who depend on the court for a fair and impartial shake," she said. But the court needs a judge that rules "based on the law, not on the basis of the justice's beliefs."

Hatch reminded the committee that as recently as last year, Owen received the gold standard seal of approval from the American Bar Association, the endorsement of 23 major newspapers and the support of Texas' two Senators.

He balked at charges that Owen had overstepped her judicial boundaries, pointing out that it was the Texas legislature that passed the parental notification law for minors seeking abortions and that she only dissented three times out of 12 in such cases before the Texas court. He said her rejection would have a "chilling effect," not only on conservative female judges, but on the legal and political systems.

Sen. Mitch McConnell, R-Ky., said he was "angry" with what he saw as the slander of a well-qualified jurist.

"It's hard not to be angry. We're passing some kind of threshold today," he said. "We are going too far."