July 9th, 2009
In today’s editorial pages, the Wall Street Journal reports that Obama’s Auto Task Force tried to keep the new General Motors from having liability for future tort claims. Chrysler was succesful in securing such an arrangement, “[b]ut 11 state Attorneys General and a group of tort lawys creid foul.”
Here’s an excerpt:
In its original reorganization plan, the Administration even proposed to leave behind in the old GM all tort claims arising from cars manufactured before bankruptcy. That would have meant that all past, present and future claims related to cars GM produced before June would have had next to no chance of meaningful recovery, as they would have had to stand in line with every other unsecured creditor of the bankrupt firm.
Read the full editorial here.
There are only a few days of vacation left, but I thought I would draw your attention to an Alaskan news story that is important, but is not about Sarah Palin.
Voters in Alaska have filed a lawsuit to dump the state’s “merit” selection process and give citizens a greater say over who runs the state’s courts. The James Madison Center has a press release with the details (I’ve copied it below the jump too). Says James Bopp, Jr., lead counsel for the Alaska plaintiffs:
The current system “gives the Alaska Bar Association a stranglehold on the judiciary. Lawyers in Alaska have enormous influence over who the state judges are, while the ordinary voter is denied the right to an equal voice.”
(more…)
While I am at it, here is a link with an update on the on-going saga of ACORN’s problematic involvement in our national life. Previously, voter registration fraud. Today, the 2010 Census.
An excerpt:
Some Republican members of Congress want the U.S. Census Bureau to end a 2010 Census partnership with Acorn, the community organizing group that was hit by accusations of voter-registration fraud in the 2006 and 2008 elections.
Acorn, the Association of Community Organizations for Reform Now, signed up in February with the bureau to be a “2010 Census Partner,” which includes, among other things, identifying job candidates, encouraging its members to participate in the count and distributing literature explaining the importance of the census.
A quick break from vacation to weigh in on the Ricci-Sotomaor story. The U.S. Supreme Court handed Judge Sotomayor an embarrassing rebuke on the eve of her confirmation hearings by throwing out her now infamous Ricci ruling. Justice Alito’s concurring opinion (beginning on pg. 42) brutally exposes the raw identity politics at the heart of this legal travesty and skewers the expression of “sympathy” by the Court’s minority:
“ … ‘sympathy’ is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law – of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”
I will be out on vacation through July 8th and therefore American Courthouse will be on a brief hiatus during that time.
One quick thought before I go, the Washington Examiner reports today that ACORN has decided to change its name to Community Organizations International because the ACORN brand has been “tarnished by investigations in at least 14 states of allegations of voter registration fraud during the 2008 presidential campaign, and charges by current and former members of financial mismanagement and misrepresentation.”
I doubt this leopard can change its spots.
Whether or not Obama will actually do anything to deal with America’s medical malpractice problems remains to be seen, but this news from the New York Times yesterday is at least movement in the right direction:
“In closed-door talks, Mr. Obama has been making the case that reducing malpractice lawsuits — a goal of many doctors and Republicans — can help drive down health care costs, and should be considered as part of any health care overhaul, according to lawmakers of both parties, as well as A.M.A. officials.
It is a position that could hurt Mr. Obama with the left wing of his party and with trial lawyers who are major donors to Democratic campaigns. But one Democrat close to the president said Mr. Obama, who wants health legislation to have broad support, views addressing medical liability issues as a ‘credibility builder’ — in effect, a bargaining chip that might keep doctors and, more important, Republicans, at the negotiating table.”
“The lawyers who have dominated judicial selection are getting put back in their place,” says a Wall Street Journal editorial today about the moves the Tennessee legislature took last week to modify the state’s so-called “merit” system for selecting judges. The new system takes the power of choosing who sits on the judicial nominating commission away from legal special interests and gives it to elected officials. That reform, along with requiring the commission to come out from behind closed doors and meet in public, is “a good first step toward bringing transparency and accountability to those judging the judges.”
As I wrote in my June 2nd post, a critical test was whether the legislature adopted a proposal in the Senate bill which would have allowed the governor to reject two slates of the commission’s nominees and choose any qualified judicial candidate. While this reform was stripped out of the final version, the Journal argues it should be reconsidered when the legislature takes up Round 2 of fixing Tennessee’s broken judicial selection system:
“In its best incarnation, a judicial commission is designed to serve a useful editing function, providing a short list of desirable candidates for the Governor, similar to the way staffers might under a federal system. When it’s dysfunctional, the Governor should be allowed to take the reins.”
This is right, of course, but the real solution can be found in Tennessee’s Constitution, which gives the power to choose judges to the state’s voters. Nevertheless, Tennessee’s reform effort clearly signals a deep dissatisfaction with elitist schemes to elevate special interests above the people when it comes to deciding who will have the honor of serving the public on the bench.
Update: In addition to today’s editorial on Tennessee , the Wall Street Journal editorial page kept the judicial election faith over the weekend by praising the failure of some nasty anti-tort reform legislation in Texas. (A Ten Gallon hat tip to ATRA and TCJL)
Many of us warned that the Caperton case would be used as a wedge to abolish all democratic judicial elections. Right on cue, the Washington Post today calls for states to “rethink judicial elections altogether” in light the U.S. Supreme Court’s ruling this week to federalize recusal standards for state judges:
“States should consider abandoning elections for a merit selection system that better insulates judges from the corrosive influence of money and politics.”
It’s important to note that the donations to West Virginia Justice Brent Benjamin in question were legal independent expenditures, not campaign contributions. As Chief Justice Roberts wrote in his dissent, “Justice Benjamin and his campaign had no control over how this money was spent.” (his emphasis) Roberts also points out (unlike the Post), that the trial bar spent $2 million in an independent campaign to defeat Benjamin.
The Post offers no evidence (other than this decision) of the “corrosive influence of money” on judicial elections, so let’s turn to Justice at Stake – the campaign bankrolled by billionaire hedge fund kingpin George Soros which lobbies to abolish democratic judicial elections across America. The group told Post reporter Robert Barnes that state Supreme Court candidates “raised almost $168 million from 2000 to 2007, nearly double the amount raised during the 1990s.”
Sure sounds alarming. But wait a minute. Between 2000 and 2008, presidential candidates raised over $3.1 billion (thanks opensecrets.org) – nearly double the $1.6 billion raised in the six elections dating back to 1976! Barack Obama himself raised considerably more than George W. Bush and Al Gore combined in 2000 and about what Bill Clinton, George W. Bush and Bob Dole raised in the 1992 and 1996 races. Where is all the gnashing of teeth from the Post about the “corrosive influence of money” on the presidency? And how exactly will a “merit” system prevent the spending of millions to remove or retain judges in retention elections? You’ll still have the “corrosive influence of money” – but with special interests rather than voters deciding who sits on the bench.
As Chief Justice Roberts argued so eloquently, the Caperton decision is just another example that extreme cases make bad laws. It’s not an argument to abolish the right of citizens to choose who will control one-third of their state government.
The Wall Street Journal editorial page hits it out of the park with a piece on yesterday’s U.S. Supreme Court decision to make federal courts the arbiter of recusal standards and decisions by state judges. Money graph:
“Justice Kennedy tries to limit any judicial chaos by insisting that not every campaign contribution would demand recusal, and that this is an ‘exceptional case.’ But the support for this position by such opponents of judicial elections as the Brennan Center for Justice and the George Soros-funded Justice at Stake gives away the game.
“These groups hope to brand all elections with the taint of inevitable bias, and five Justices have now gone a long way toward validating that claim. One result will be that far more decisions by elected judges will be challenged for bias, further tying up the courts and giving average citizens the impression that all judges can be bought. The ultimate goal of these groups is to have all judges selected by a club of lawyers and insiders that makes judges less accountable to average citizens.”
“Not every campaign contribution by a litigant of attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.” (Washington Post) So wrote Supreme Court Justice Anthony Kennedy today in the Court’s ruling that a West Virginia Supreme Court justice should have recused himself from a case involving a company whose chairman spent $3 million in an independent campaign to defeat that justice’s opponent.
In a February post, I wrote that since the particular facts of this case were so extreme and unusual, this wasn’t the case to issue a general ruling even in the narrow area of recusals. Federalizing the process of judicial recusals, I warned, would just lead to endless litigation and “judge shopping” – both designed to influence the outcome of a case. Chief Justice Roberts echoed these concerns even more sharply in his dissenting opinion:
“The Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.” (emphasis mine)
The new recusal standard invented by the Kennedy majority “fails to provide clear, workable guidance for future cases,” Roberts writes. He then rattled off a list of 40 questions – “only a few (!) uncertainties that quickly come to mind” – judges will have to consider when wading through the coming flood of bias charges by trial lawyers who find themselves on the “wrong” end of a decision. In the final analysis, says Roberts:
“Today’s opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratituted?).
Perhaps recognizing the Pandora’s Box opened by his decision Justice Kennedy tries to pull back, arguing that “most disputes over disqualification will be resolved without resort to the Constitution.” Roberts is having none of it, calling Kennedy’s qualifier “just so much whistling past the graveyard.”
“ … I believe that opening the door to recusal claims under the Due Process Clause, for an amorphous ‘probability of bias,” will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.”
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