The Scruggs Playbook
July 31, 2008
Richard “Dickie” Scruggs is by now heading to a federal prison in Kentucky, where he’ll be wearing an orange jumpsuit and doing good works like clearing trash along our nation’s highways. Following his sentence of five years in prison, you’d think the worst is over for the King of Torts.
But Dickie has had a long career . . . and there are those of us who suspect his attempted bribery of a judge is not his first offense, but part of a long pattern of suborning justice.
Case in point—PointofLaw.com posts questions from attorneys for State Farm in their defense in McIntosh v. State Farm, a Scruggs’ inspired Katrina lawsuit. The questions shed light on Scruggs’ litigation strategy, something Scruggs apparently referred to as the “Tobacco Playbook”.
In essence, the questions tell the story of how material was stolen from State Farm’s files, Scruggs would then tell the Mississippi AG to issue a subpoena for the stolen material, State Farm couldn’t produce it (since it’d been stolen), and Scruggs would then be able to tell the press, in the words of State Farm attorneys,
“that [State Farm] was shredding or deep sixing or destroying evidence that you knew they didn’t have; isn’t that a fact?”
Can’t wait to see this movie!
Tennessee’s Potemkin Judicial “Elections”
July 30, 2008
On August 7, Tennessee voters can head to the polls to lodge an up-or-down vote on two state Supreme Court justices and five appeals court judges, the Knoxville News Sentinel reports.
These so-called retention elections are often promoted by advocates of “merit” selection as a means to give the public a voice in determining who sits on the bench. But legal scholars who have looked at retention elections have concluded they do little more than provide a rubber stamp to the choices of an tiny unelected, unaccountable tribunal of legal elites, which has the real power when it comes to selecting judges.
In one study, Brian Fitzpatrick of Vanderbilt Law School found that of the 146 judges who have stood for retention elections since democratic elections were abolished, 145 were returned to office — the type of results that would have made members of the old Soviet Politburo blush.
Then there’s the question of whether retention elections meets the mandate in Tennessee’s Constitution that judges must be elected by the voters. Professor Fitzpatrick doesn’t think so. Neither does Senator Duane Bunch, who has sponsored a bill to give back the right to vote to Tennessee citizens.
Tennessee’s Judicial Selection Commission will expire next July unless legislators reauthorize it.
The Agony Of Defeat
July 29, 2008
A good roundup at domemagazine.com of the fallout from the discredited plot to rig Michigan’s political rules “to help Democrats.” Among the collateral damage:
- “It [the court packing/redistricting rigging scheme] has already led to talk of replacing Party Chair Mark Brewer, been responsible for knocking out their [Democrats’] top-choice candidate to challenge the incumbent Supreme Court chief justice, and it actually drawing some worries that it could harm the party’s chances of holding the house.”
- “Sen. Tupcak Hunter (D-Detroit), co-chair of the Michigan campaign for presidential candidate Barack Obama” told one Detroit radio station “he is embarrassed by his party’s tactics in planning for the proposal. Worse he said he feels ashamed to be a member of his party.”
- Rep. Mark Meadows (D-East Lansing) “said pointedly that if the vote came today, he wouldn’t back Mark Brewer for another term as [party] chair.”
- A lawsuit to keep the proposed petition off the ballot included “two Democratic officials among the named plaintiffs” – Rep. Virgil Smith III (D-Detroit) and Ingham County Clerk Mike Bryanton.
- “The blows came hard and fast for the party this week, and members took notice, as whispers about whether Mr. Brewer should remain head of the Democratic Party grew loud enough that the governor attempted to quash the idea.”
I guess it’s not surprising that Gov. Granholm and Brewer refuse to abandon this plan, even as Democrats across the state flee; after all, Brewer devised it and Granholm helped finance it. But in their heart of hearts, they must be hoping that the lawsuit succeeds and the petition is invalidated to save them some of the embarrassment of sponsoring one of the worst disasters in Michigan political history.
Lifting The Rock On Trial Lawyer Earmarks
July 29, 2008
The Institute for Legal Reform at the U.S. Chamber of Commerce just launched an amazing new interactive website that slickly documents the “stealth campaign” by the trial lawyer lobby to open up new avenues of litigation and further clog our courts with abusive lawsuits.
Among the dozens and dozens of trial lawyer earmarks identified by the ILR:
- legislation that would expose the U.S. military to the same abusive medical liability lawsuits that have driven up health care costs across America;
- legislation that would expand the asbestos litigation morass that is already choking U.S. courts;
- legislation that would target for lawsuits telecom companies that helped federal law enforcement officials track suspected terrorists;
- legislation that would allow trial lawyers to sue the government over the impact of global climate change.
After viewing this website can there be anyone left who doubts which special interest group calls the shots in the new Democratic Congress?
If You Can’t Win On The Facts, Attack The Poll
July 28, 2008
Opponents of democratic judicial elections seem worried about a new American Justice Partnership Foundation poll that revealed an overwhelming 75% of Americans believe state judges should be elected. They know they’ve got a losing hand and can’t attack the results – so they attack the poll and the pollster.
I’ve already responded to the personal attacks on Ayres, McHenry, one of the most prestigious polling firms in the country. Now let’s tackle the other main criticism – the poll’s sample size of 800, which opponents claim isn’t big enough.
Sample sizes of 800-1200 are common for national surveys. A national USA Today/Gallup poll taken May 31-June 3 had a sample size of 803. A Time magazine national survey in late June had a sample of 805. NPR did a national poll in May with 800 likely voters as its sample size. CBS/NY Times and NBC News/Wall Street Journal also have done recent polls with sample sizes of 601 and 700 respectively. Nobody argues that these polls are somehow illegitimate.
The fact is, there is no one “correct” sample size. The main reason to do a larger sample is to be able to break down the sample into smaller subgroups. The AJPF poll’s margin of error of +/- 3.46, compared to a MoE of +/- 3.10 for a sample size of 1000 demonstrates both the robustness of the results and the shallowness of their criticism.
Another attack focuses on the language used to describe the pro-merit selection arguments, which critics claim wasn’t favorable enough to their side. Opponents of democratic judicial elections go to extreme lengths to conceal their true intentions, cloaking their campaign in good government language. The language used in the poll may not have dutifully repeated their propaganda, but any objective observer will have to conclude that the questions were fair and balanced.
Trial Lawyer Lobby Gets Big Payoff On Capitol Hill
July 28, 2008
Earlier I posted an item about the $1.6 billion tax cut for trial lawyers secretly slipped by Democratic leaders into a House tax bill. But it turns out that this was just the tip of the iceberg. An article in Sunday’s Washington Examiner details the legislative payoff the new Democratic Congress is delivering to their biggest campaign contributors.
According to the Examiner, the U.S. Chamber of Commerce’s Institute for Legal Reform has identified 48 separate pieces of legislation to benefit the trial bar. The list of trial lawyer goodies includes an opportunity to expand asbestos lawsuits and legislation that would allow people (and their lawyers) to “sue for disability protections even if they are not actually disabled.”
An investigation by the Examiner showed that of the 55 lead sponsors of pro-trial lawyer legislation, “39 had received substantial” campaign contributions from the trial bar. With so much cash being spread around to the trial bar’s Democratic patrons, no wonder AEI’s Ted Frank noted: “Every time I talk to somebody on the Hill I learn about a new bill that has a giveaway for trial lawyers.”
The Chicago Tribune Takes the Bait
July 28, 2008
The Chicago Tribune had a thumbsucker over the weekend on the politicization of America’s judiciary that pushed the usual storyline: Americans are “largely clueless” about the judiciary, providing an opening for “special interest lobbies” to have undue influence over the judicial selection process. The recent election defeat of Wisconsin Supreme Court Justice Louis Butler serves as the jumping off point, so let’s take a look at that race.
The Tribune darkly suggests that Justice Butler owes his defeat to “outside interest groups” that wanted to “tilt the ideological makeup of the court.” But in fact it was the appointment of Butler – a liberal activist judge who took it upon himself to try to rewrite Wisconsin tort law – that shifted the court’s direction.
In a recent report on the race – “Don’t Blame the Voters for the Ugly Election for the High Court” published by the Wisconsin Policy Research Institute – Charles Sykes writes that Butler was appointed over the objections of Wisconsin voters:
Butler was appointed to the job after having been explicitly rejected by the voters. [Gov.] Doyle named him to the high court despite and quite possibly in open defiance of the verdict of the electorate in 2000, when Butler lost a race for the seat by a 2-to-1 margin. In effect, Doyle’s appointment (which required no confirmation by any elected or unelected body) overturned the clear results of the election.
Upon joining the high court, Sykes continues, Butler wasted no time pushing his personal agenda:
When Butler came on the court in 2004, he and other members of the newly-created liberal majority could have been cautious and incrementalist in their rulings. Instead, they moved hard left, aggressively ignoring precedent and substituting their judgment for legislative decisions and acting as a “super-legislature.” On issues ranging from crime to tort litigation, the court’s sweeping departures from past practices drew national attention, and ultimately changed the nature of elections for justices.
When judges start acting like politicians, they should not be surprised when judicial races become more political. Writes Sykes:
The fault here lies not with the public or even the “interest groups,” but rather with the justices themselves. When judges act like politicians, the judicial selection process – elected or appointed – becomes increasingly political. Action and reaction. The politicization of the court led to the politicization of the elections for justices.
When justices arrogate political policymaking to themselves, they should not be surprised when they are held to the same standards as politicians …. By acting as super-legislators and super-governors, they transformed elections for the court into the sorts of campaigns associated with heated contests for legislative seats and the governor’s chair.
The Tribune’s reporter, Tim Jones, also fell for the old line that groups like Justice at Stake, the Brennan Center and the Wisconsin Democracy Campaign are just non-partisan watchdogs. In fact, as I’ve pointed out many times, these groups are part of a highly-coordinated, well-funded campaign financed by hedge fund billionaire George Soros to end the democratic right to vote for judges in states across the country and give that power to a tiny, unelected, unaccountable commission of legal elites. If the Tribune believes that lawyers ought to pick judges instead of voters, they should just say so; but they shouldn’t deceive their readers by credulously repeating the non-partisan claims of groups with deeply partisan agendas.
Gov. Granholm Embraces Discredited Ballot Initiative
July 25, 2008
Well, at least now we know. The Lansing State Journal reports today the Michigan Gov. Jennifer Granholm thinks “there are a lot of good ideas” in a proposed amendment to rewrite Michigan’s Constitution and she won’t oppose it.
This is the same ballot initiative that was denounced by the Detroit News as a raw “power grab of this state’s judiciary.” It’s the same ballot initiative that a smoking gun PowerPoint slideshow confirmed was designed to rig the political rules in Michigan “to help Democrats.” It’s the same ballot initiative that was exposed as a ploy to allow Democrats to gerrymander state districts so they could seize control of the legislature. It’s the same ballot initiative that has been repudiated by every respectable opinion outlet in Michigan – a scheme so dishonorable and nakedly partisan that even prominent trial lawyers are coming out against it.
But Gov. Granholm “thinks there are a lot of good ideas” in it.
Gov. Granholm’s embrace of this discredited proposal reveals a great deal about the intellectual bankruptcy of Michigan’s Democratic Party. Rather than competing for votes by offering persuasive ideas for reviving the state’s economy, Michigan Democrats hatch a scheme to trick voters into handing them power.
Maybe Gov. Granholm just figured she was already in too deep to disavow the sham ballot petition. After all, she and Lt. Gov. Cherry did funnel campaign funds into the development of this proposal. But when you’ve got a losing hand, isn’t it better to fold than to double down?
…Also in the Lansing State Journal today, columnist Tim Skubick has another take on the decision by Marietta Robinson to drop out of the race against Supreme Court Chief Justice Cliff Taylor.
Reining In The Trial Bar in South Carolina
July 25, 2008
Since his election in 2002, South Carolina Governor Mark Sanford has labored to bring jobs to his state by making it a better place to do business.
One of Gov. Sanford’s biggest, ongoing battles has been with the state’s Workers’ Compensation Commission. Unlike similar commissions in most other states, this SC commission has not been using objective American Medical Association standards to match compensation for workers with injuries. As a result, workers’ comp premiums have been soaring by double-digit rates, punishing local businesses and pushing South Carolina from ranking 49th in workers’ comp premiums down to 25th in just seven years.
If you think you smell the trial bar lurking here somewhere, you’re right on target. Enterprising trial lawyers hate objective AMA standards because they limit the ability to score big settlements and exorbitant legal fees.
The South Carolina State Legislature passed workers’ comp reform last year, which was helpful, and Gov. Sanford followed up with an executive order requiring the Commission to use objective ABA standards. As National Association of Manufacturers President John Engler (himself a former Governor) wrote at the time, Sanford’s executive order would have resulted in a 10-15% reduction in workers’ comp premiums.
But South Carolina businesses never saw these benefits because the Commission balked at Gov. Sanford’s executive order.
Yesterday, Gov. Sanford and the Commission reached a partial agreement that would force the disclosure of attorneys’ fees awarded in workers’ comp cases, ending the Commission’s practice of hiding these fees from public view. While sunlight is always a good disinfectant, apparently the Commission still refuses to use objective AMA standards. But the battle is far from over. As Cam Crawford, Director of the SC Civil Justice Coalition put it:
This is a skirmish in a larger war to protect South Carolina businesses, especially small businesses. If anything, this proposed settlement reinforces how important it is that we put objective workers’ compensation guidelines into the South Carolina code of laws.
Not All Attacks Are Created Equal
July 24, 2008
On July 15, we posted the results of a public opinion survey commissioned by the American Justice Partnership Foundation which revealed that an overwhelming 75% of Americans believe state Supreme Court justices should be elected by the people.
Today, Pennsylvanians for Modern Courts – a group funded by George Soros which is fighting to take away the Constitutional right of Pennsylvanians to vote for state judges – attacked this survey. As supporting evidence for their attack, they cited Bert Brandenburg from Justice at Stake – a group funded by George Soros which is fighting to end democratic elections for state judges all across America. They also attacked the prestigious polling firm Ayres, McHenry & Associates, Inc., citing for authority Media Matters for America – a group funded by George Soros dedicated, believe it or not, to uncovering conservative bias in the media.
Does anyone see a pattern here? Are all these Soros-funded attacks being written from the same computer?
The apparatchiks toiling away at the various Soros-funded entities know they are peddling a losing argument. So instead of defending their point of view – that Americans shouldn’t be allowed to vote for some of the most powerful public servants in their states – they malign a pollster.
The bottom line: Americans overwhelmingly want their democratic right to vote protected – whether it’s for President, Senator, Governor, State Supreme Court Justice or City Council member. They can launch all the attacks they want, but none of the Soros-funded groups can alter this fact.