The late Robin Williams popularized a joke that politicians should wear patches from their campaign donors the way NASCAR drivers do for their advertisers. The notion caught on so much that there was even a petition to mandate it in 2013!
It never went anywhere. We already have extremely transparent laws to cover campaign contributions for elected officials. The people we really need this for are judges.
Unlike members of an elected body, there’s very little check against a judge’s power. Legislators need to compromise with other legislators, then rely on the executive branch to carry out their policies. But with judges, we basically just have to hope they’ll rule fairly, unencumbered by their own self-interests.
I was reminded of this when I saw the news that Johnson & Johnson had filed a lawsuit against the Department of Health and Human Services, trying to force HHS to alter the 340B drug-pricing program. Big Pharma hates 340b because it costs them money, but so far both Republicans and Democrats have favored the program because it’s helped so many people.
The scary part here though is the judge presiding over this case really likes Big Pharma, so it could be bad news for the lifesaving program if he doesn’t recuse himself.
340b is a 33-year-old drug-pricing created by legislation from Sen. Orrin Hatch – my old boss – to help low-income, uninsured patients. Using the leverage of federal compensation plans like Medicaid, 340b requires drugmakers to sell medicine at a discount to qualifying hospitals. The program is used across the county, benefiting predominantly rural and working-class populations: you know, Republicans.
In 2020 alone, hospitals saved patients’ nearly $85 billion, or 3% of Big Pharma’s revenue for the year. That’s $85 billion going into life-saving medicine rather than padding the profits of Big Pharma. J&J and other pharmaceutical robber barons want to force HHS to curtail the program so they don’t have to keep handing out the discounts.
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The person who will rule on J&J’s lawsuit, however, has big ties to Big Pharma and a history of protecting Big Pharma at the expense of their patients.
The Fifth Circuit’s honorable (we hope) James Ho was previously a partner at Gibson, Dunn & Crutcher. When he became a judge, the firm replaced him as partner with his wife, Allyson Paiz Newton Ho. The law firm represents many pharmaceutical giants, including Pfizer, Eli Lilly, Amgen, Merck, and – oh goodness – Johnson & Johnson. Mrs. Ho herself had previously represented drug companies, including some like AstraZeneca and – again – J&J.
Big Pharma has 340b in their crosshairs. Earlier this year, they launched a treacherous public affairs campaign to discredit 340b by saying it’s exploited by illegal aliens and “gender-affirming” care for minors. (Ignoring of course that Big Pharma has been 100% behind the profitable “gender-affirming” care to begin with.) This is a clear example of pharmaceutical companies putting their greed and bottom line above patients’ health.
Conflicts of interest are nothing new to this power couple. The Hos have received a lot of attention for their ethical missteps relating to abortion pills. In 2023, Ho’s three-judge panel on the US Fifth Circuit Court of Appeals ruled against some prescriptions of mifepristone, the pill used in more than half of abortions in the US. Regardless of conflicting opinions on abortion, we should all agree against conflicts of interest.
James Ho didn’t recuse himself even though Allyson Ho has received enormous speaking fees from the Alliance Defending Freedom, the group that argued against mifepristone.
Appointed by President Trump in his first term, Judge Ho gets considerable attention because he is Asian American. Some have speculated that he could be “the next Clarence Thomas” as he is on Trump’s shortlist for the next Supreme Court vacancy. Given the way Republicans and Asian Americans have allied on affirmative action/discrimination issues, Trump’s appointing an Asian to the Court is somewhat tempting.
But there are grave concerns about Ho’s potential bias given his muddy track record. American patients are the ones to suffer the most when drug companies make extra billions. On transgender profits, exploiting the “pandemic,” and now attacking 340b, Big Pharma has proven they are not our friends. Ho needs to recuse himself from these cases if he wants to show he can be trusted with that kind of power.
Otherwise, do we really want to appoint someone to the highest court of the land who should be wearing Big Pharma patches on his robe?
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