Astrue Associated With Washington Legal Foundation

Michael Astrue, President Bush's nominee for Commissioner of Social Security, has a significant affiliation with the Washington Legal Foundation. He is listed on the list of speakers that they make available. Washington Legal Foundation is a right wing organization that provides pro bono legal representation. With Astrue being affiliated with the Federalist Society and the Washington Legal Foundation, there can be no doubt that he can be accurately described as a "movement conservative." Although I can find no record of Astrue every saying this, it would be surprising if Astrue did not share the "movement conservative" view that Social Security is evil and should be abolished.

A Little Personal Information on Michael Astrue

Michael Astrue, President Bush's nominee to become the next Commissioner of Social Security, must have filled out some form sent to him a few years ago by the American Bar Association Career Counsel Program. The ABA has posted this information online. Here is what Astrue had to say:

Why?

Pluses/Challenges of Practice Area:
Knowing if you do well, you can help bring breakthrough drugs to desperate patients. Challenges: High risk, stress and uncertainty; excessive litigiousness in industry.

Core Skills/Key Knowledge Needed in Your Practice Area:
Integration of science, law and business considerations; strong stomach.

Advice to Lawyers and Law Students Interested in Your Practice Area:
Generally, it is best to start with a law firm and then move to a medium sized or bigger company if you want to work in biotech. Most importantly, though, forget about long-term plans and just try to do something immediately worthwhile.

How?

Career Path to Current Position:
Mostly government service (many years at HHS, including 3 ½ as General Counsel) then General Counsel at Biogen.

Influences and Mentors:
Mentors: C. Boyden Gray, Kenneth Novack; Influences: James Q. Wilson, Ronald Reagan, Laura Mali-Astrue [apparently his wife, a French teacher].

Suggested Reading About Your Practice Area:
Hutt & Merrill: Food and Drug Law.

Job Search Techniques Used in Finding Your Position(s):
Just sitting around at home and the phone rang.

Bar Affiliations and Activities:

Council Member: American Bar Association Section of Administrative Law; Vice Chairman: Federalist Society Section of Administrative Law.

Memorable Career Moment:

First day working in The White House, 1988.

Intriguing Interests:

Cuttyhunk Island; New Formalist poetry; the music of Richard Thompson.

Third Non-Attorney Exam Results

Above is a list of those who passed the third examination given to non-attorneys who represent claimants before the Social Security Administration. Those who pass are given the privilege of having their fees withheld by Social Security. I will have the results transcribed, but wanted to make it available as quickly as possible for those who have truly excellent vision or who can find a way to have their computers magnify the images. This was obtained by Freedom of Information Act request.

There's Probably At Least One Person Who Thinks Michael Astrue Shouldn't Be Confirmed As COSS

Michael Astrue, President Bush's nominee to become the next Commissioner of Social Security, was employed from 2000 to 2005 by Transkaryotic Therapies, a company that developed biotech pharmaceuticals, first as Vice President and Legal Counsel and later as CEO. The circumstances surrounding his elevation to CEO of Transkaryotic are explained a bit in this article from Forbes.com of September 2, 2005, which may also explain why at least one person probably thinks Astrue should not be confirmed as Commissioner of Social Security:

There are good doctors and mediocre doctors. But according to the U.S. SEC, Dr. Richard Selden is in a class by himself. Selden, the former chief executive of Transkaryotic Therapies (TKT) [where Michael Astrue, the nominee to become Commissioner of Social Security, used to work], was charged by the SEC with allegedly hoodwinking investors about failed drug trials to artificially inflate the stock price--then selling off his own shares. According to the civil complaint filed Thursday by the SEC, Selden sent positive press releases even after the U.S. Food and Drug Administration had said in 2001 that trials of TKT's company's flagship drug Replagal, had failed.

By selling his shares before disclosing the negative data about Replagal, Selden "unjustly enriched" himself by $1.66 million, the SEC alleged in the complaint filed in U.S. District Court in Boston. The agency is seeking that money along with the $1.1 million in salary and bonuses Selden earned in 2001 and 2002. According to an Associated Press report, Selden in 2001 sold 90,000 shares of TKT stock--well before Oct. 3, 2002, when TKT finally disclosed the problems with its FDA application. The next day, its shares plunged 61%, to $12.75.

Through his attorney Thomas J. Dougherty, Selden maintained TKT lawyers, who advised him wrongly, bore responsibility for his actions. "He deserves and expects to prevail at any trial of the issues," Dougherty told The Boston Globe.

Who were these TKT lawyers whom Dr. Selden alleges advised him wrongly? Michael Astrue was TKT's Legal Counsel at the time, so he is almost certainly one of them. On the face of it, we have a simple situation. Astrue was the chief legal officer at TKT. He was responsible for making sure that the company stayed in compliance with SEC rules. His CEO apparently violated SEC rules in a spectacular way that nearly destroys the company. Why did Astrue not prevent this? Is he in some way culpable for what happened?

Exactly what Dr. Selden did, when he did it and why are probably much more murky than this article indicates. If it were this simple, Selden would probably be facing criminal charges. Of course, Selden is trying to save his own skin and may say anything, so we should not take his statements too seriously. No one other than Selden is accusing Astrue of doing anything improper. Maybe other attorneys within TKT or at an outside law firm were advising Selden on SEC matters. For all we know, the key incidents in this case happened suddenly without Astrue's prior knowlege. Perhaps, Astrue bluntly warned Selden and the TKT board of directors about what was happening and they ignored him. We do know that TKT's board of directors selected Astrue to replace Dr. Selden as CEO after this happened, which strongly suggests that they did not blame Astrue for what happened. Astrue was selected for several boards of directors and became an interim CEO after this happened. All of this suggests that within the Boston biotech community that Astrue was not blamed for what happened.

Despite all of the signs that no one other than Dr. Selden blames Astrue for what happened, it remains a fact that what appears to have been a preventable legal problem happened on Astrue's watch and that the legal problem nearly destroyed his company. The legal problem has certainly destroyed the career of the CEO who was Astrue's primary client. The SEC charges against Dr. Selden have not been resolved, as best I can tell, meaning that this matter could come back to haunt Astrue. The FBI must have investigated Astrue before this nomination was announced. Astrue's role in the Selden debacle had to have come up during the investigation, so the Senators considering Astrue's nomination should have access to much more information about this matter than is available on the public record. There are legitimate questions to ask Michael Astrue about what happened at TKT. That there may be good answers for these questions is no reason not to ask them.

Background Information On Nominee To Be Social Security Commissioner

Michael Astrue

Educational Background

• October 1, 1956 Born, Fort Dix NJ
• Grew up in Boston area
• Attended Roxbury Latin School (Founded in 1645, in the reign of King Charles the First, Roxbury Latin is the oldest school in continuous existence in North America.)(Astrue sounds like a Boston blueblood.)
• 1978 B.A. Magna Cum Laude Yale University
  
• 1983 J.D. Cum Laude Harvard University
  

Work History

• 1983-1984 Law Clerk to U.S. District Court Judge Walter Skinner
  
• 1984-1985 Associate Attorney, Ropes and Gray
  
• 1985-1986 Acting Deputy Assistant Secretary for Human Services Legislation, Department of Health and Human Services
  
• 1986? Legal Counsel to the Deputy Commissioner for Programs, Social Security Administration
• 1986-1988 Counselor to Commissioner of Social Security
  
• 1988-1989 Associate Counsel to the President, Reagan Administration --served briefly as White House Ethics Officer
• 1989? Counsel to the President (Bush?)
  
• 1989-1992 General Counsel, Department of Health and Human Services (Note that at age 33, only six years after graduating from law school he is the head of a general counsel's office directing the work of hundreds of attorneys.)
  
• 1992-1993 Partner, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston (with the end of the first Bush Administration he moves back to his home town of Boston)
  
• 1993-1999 General Counsel, Vice President and Secretary, Biogen (He seems to not like working in law firms. Biogen is a biotech company. General counsels are even more important at biotech companies than at most companies. Biotech companies are involved in much litigation, particularly high stakes patent litigation, much of it international litigation and are also involved in FDA applications. The results of either patent litigation or FDA applications can make and break biotech companies.)
  
• 2000-2003 Senior Vice President and Legal Counsel, Transkaryotic Therapies (This seems to be a downward move. Biogen is a much bigger company that Transkaryotic.)
  
• 2001 Name floated as possible appointment to head Food and Drug Administration -- Never formally nominated due to opposition of Senator Edward Kennedy and six other Democratic Senators who did not like Astrue's close association with the pharmaceutical industry. Astrue later quoted as saying "Ted [Kennedy] never said it was anything personal ..."
  
• 2003-2005 CEO Transkaryotic Therapies -- Hired to clean up a scandal caused by the previous CEO. He resigned when the company's board agreed to sell the company to Shire Pharmaceuticals PLC against his recommendation. (Note that even as CEO he could not prevent his board of directors from taking what he considered to be an extremely unwise sale of the company. Clearly, he did not have the board of directors where most CEOs keep them -- in their back pockets.)
  
• 2005 to date(?) Hudson Institute Adjunct Fellow (conservative think tank) (He seems to want to make a career change. Almost certainly, he could have gotten another good job in biotech or at some law firm that serves the needs to biotech companies.)
  
• For a few months in 2006, Interim CEO Epix Pharmaceuticals, which he sold to Predix Pharmaceuticals
  

Other Associations

• Chairman Massachusetts Biotechnology Council (dates?)
• Treasurer and Vice Chairman Massachusetts High Technology Council (dates?)
• Board of Directors, Tercica August 2005 to date?
• Board of Directors ArQule April 8, 2005 to date?
• Board of Directors, CaraGen June 13, 2005 to date? (Note that after he quits Transkaryotic in protest over what he considers an ill-advised sale of the company he is in great demand as a board member at other biotech companies.)
  
• Board of Directors Kenneth B. Schwartz Center (non-profit) (dates?)
• Adjunct Instructor, Emerson College (dates?)
• Adjunct Instructor Boston University Law School (dates?)
• Advisory Board, Journal of Science and Technology, Boston University Law School (dates?)
• Council Member Administrative and Regulatory Law Section, American Bar Association 1998

Personal

There is virtually no personal information available on the internet about Astrue. Some years ago it was mentioned that he was married and had one child. Apparently, he is known for preferring informal clothing.

Websites consulted:
Bizjournals.com
Goliath
Reagan Library
Forbes.com
Bush Library
ADVFN News
Journal of Science and Technology Law
American Bar Association
New England Legal Search
GovExec.com
Mass High Tech
Hudson Institute
Roxbury Latin School

Max Baucus Comments On Astrue

Max Baucus, the senior Democrat on the Senate Finance Committee that will consider Michael Astrue's nomination to become Social Security Commissioner, has issued the following statement:

The country had a big debate last year about Social Security, and the American people made their views plain: they do not support the President’s proposals to privatize Social Security and to deeply cut benefits. As he moves through the nomination process, I hope that Michael Astrue will be responsive to the Americans he wishes to serve. He should commit to maintaining the critical role that the Social Security program currently plays in providing income security for retirees, disabled workers, survivors, and their families. He will also need a plan to speed and improve service to the public, particularly those applying for disability benefits.

I look forward to learning more about Mr. Astrue and his views on managing the Social Security Administration.

I will also add that Current Commissioner Jo Anne Barnhart has done a good job leading this important agency in difficult times. Her dedication and expertise will be missed when she leaves, and she has my appreciation for her service.

This can be read to mean that Baucus will oppose Astrue's nomination unless Astrue repudiates President Bush's plans to privatize Social Security, or at least pledges not to try to advance it. There is a big reason why Astrue's nomination may fail anyway. If confirmed Astrue will serve throughout the term of the next president. Democrats in the Senate may prefer to prevent anyone from being confirmed rather than forcing the next president, who may be a Democrat, from having to cope with a Social Security Commissioner chosen by President Bush.

Astrue's Nomination Widely Ignored

Michael Astrue's nomination to be Commissioner of Social Security has been almost completely ignored by traditional news media. Neither the New York Times, nor the Washington Post, nor even the Baltimore Sun has an article on this development. The Associated Press and Reuters have not carried this information. The Social Security Administration has almost 60,000 employees and pays benefits to almost one American in five, but the appointment of a new head for the agency is not worthy of even a brief article, even in Baltimore, where Social Security has its headquarters. Social Security may be the largest employer in Baltimore, but the major Baltimore newspaper did not even notice the appointment of a new head for the agency.

CMS And SSA Heads Bite Dust In One Week -- Coincidence?

The following is an excerpt from The Hill:

Members of the Senate Finance Committee are keeping the pressure on the Medicare and Social Security agencies to fix a glitch that caused hundreds of thousands of beneficiaries to pay the wrong premiums.

The heads of both agencies met with the Finance Committee behind closed doors last week to go over their plans to rectify billing discrepancies that led to many Medicare enrollees owing unpaid premiums to the health-insurance companies providing their drug benefits.

Since meeting with Centers for Medicare and Medicaid Services (CMS) Administrator Mark McClellan and Social Security Administration (SSA) Commissioner JoAnne Barnhart last Thursday, several senators have expressed concern that the plans from agencies might be too harsh, especially for poorer beneficiaries.

These billing errors have brought renewed attention to the pitfalls inherent in rolling out the massive new Part D prescription-drug benefit, which has required the coordination of federal agencies and health insurers.

The administration has disclosed two separate billing problems in recent weeks that together affected an estimated 700,000 Medicare beneficiaries.

First, the administration revealed that 230,000 beneficiaries were accidentally sent refund checks that would have to be returned or repaid.

Later, the administration said that the wrong Medicare premiums had been deducted from Social Security checks sent to 400,000 to 500,000 beneficiaries throughout the year, and that in some cases no premiums at all had been paid for months.

The health plans that administer the drug benefit likewise have not been paid the premiums that CMS and the SSA should have been collecting and passing along. These health plans also will ultimately be responsible for recouping unpaid premiums.

The agency already has contacted the beneficiaries who received accidental refunds and is working individually to establish installment plans for those who may have spent the money already....

Earlier this week, Mark McClelland, the CMS Director, resigned. Now a replacement is named for Jo Anne Barnhart, the Commissioner of Social Security, with almost four months left on her term. All of this happens within a week at a time when frustration with the poor implementation of the Medicare prescription drug benefit is at its peak. Coincidence? While it may be obvious to those familiar with Social Security that the Medicare prescription drug benefit problems lie almost completely with CMS, this may not be at all obvious to Congress and the White House. Perhaps it was already clear that Barnhart was not going to be reappointed and this was merely a question of timing, but there is a strong possibility that Medicare Part D has something to do with what happened this week to McClelland and Barnhart.