Wacky Warning Labels
April 30, 2009
As long as we have a system that permits so many frivolous lawsuits, expect to see silly warning labels like the first-prize winner of the Foundation for Fair Civil Justice’s 12th annual “wacky warning label” contest.
It reads: “Not for use on moving vehicles”—from a portable toilet seat for outdoorsmen that attaches to a trailer hitch.
Other warning labels from this contest, managed by the esteemed Bob Dorigo Jones, include:
“‘Always use this product with adult supervision,’ on a cereal bowl. A baby stroller with this warning, ‘remove child before folding.’ And this one, ‘For animal use only.’ It is from a bag of livestock castration rings.”
While we laugh at the absurdity of these warning labels, the dangerous reality is that they only exist because our legal system has become completely susceptible to frivolous lawsuits over any imaginable misuse of a product.
More Lobbying By Judges In Tennessee
April 29, 2009
With just 62 days until Tennessee’s “merit” selection system expires, blogger Terry Frank has been monitoring the ongoing lobbying activities of several sitting judges, including members of the Supreme Court, who are using their offices to try to defeat legislation that would make judges more accountable and the judicial selection process more transparent. Ms. Frank notes that Canon 2 Sec. B of Tennessee’s judicial Code of Conduct requires that judges not “lend the prestige of judicial office to advance the private interests of the judge or others;” And:
“As Holder, Koch, Wade and Kirby are all sitting judges with a stake in the legislative outcome so to speak, are they lending the prestige of their office to advance what will benefit them personally? It looks like it to me.”
Sec. B also says “judicial letterhead must not be used for conducting a judge’s personal business.” While Ms. Frank agrees that judges have First Amendment rights like anyone else:
“ … they [Justices Koch and Holder] have clearly used their positions to lend greater weight and authority to their opinions regarding passage of this particular legislation. So have Justices Kirby and Wade by denoting their titles/positions on their letterhead.”
Wait a minute – aren’t judges in Tennessee chosen by “merit” selection? And doesn’t “merit” selection ensure that judges will remain cool, aloof, serene … floating above the political fighting and grubby lobbying that consume lesser public servants? Guess not.
NAACP Says “Specter Of Racial Discrimination” Has Been Raised By Florida “Merit” Board
April 28, 2009
Did Florida’s judicial nominating commission discriminate against minority candidates after bypassing three “well-qualified” African Americans to fill a vacancy on the state’s Fifth District Court of Appeals? Florida’s NAACP is certainly concerned. In a blistering Amicus Brief filed with the Florida Supreme Court, the NAACP charged that “the specter of racial discrimination has been raised” by the commission’s actions and argued that the commission’s secret deliberations “fail to provide any measure of accountability in the event of misconduct or discrimination.”
Explosive charges indeed – and yet another example of how “merit” selection schemes have failed to keep politics out of judicial selection, while turning the process of picking judges into a clubby, insider’s game with no public oversight.
A good summary of the battle du jour can be found in the Orlando Sentinel, but here’s the gist: Back in December, the Fifth Judicial Nominating Commission sent Gov. Charlie Crist a list of six nominees that failed to include any minority candidates. Gov. Crist asked the commission to reconsider its list given its professed commitment to diversity on the bench, noting that at least three well-qualified African Americans had applied, including two sitting circuit court judges. The commission has refused and the retiring judge whose vacancy must be filled wants the Florida Supreme Court to order Gov. Crist to pick a name from the original list.
While the governor can suspend a commission member for misconduct (like discriminating against African American nominees), this is a useless check against abuse because the governor is locked out of the smoke-filled room along with everyone else. As the NAACP put it:
“At present, the Governor has no authority to access information with respect to potential misconduct or discrimination by the JNCs to aid in his determination as to whether suspension or removal is warranted…. Accordingly, the Florida NAACP respectfully requests that this Honorable Court exercise its Article V powers and amend the JNC rules of procedure to allow a governor to obtain the requisite documents and transcripts to investigate misconduct or discrimination within the nominating process.”
In Tennessee, Missouri and now Florida, proponents of government transparency and public accountability are pushing for judicial nominating commissions to come out from behind closed doors. After being called out by the Florida NAACP, isn’t it time for even the most diehard “merit” selection advocates to give up on the idea that our judges should be chosen in secret?
“Merit” Selection And The Founders
April 24, 2009
Former Supreme Court Justice Sandra Day O’Connor was campaigning in Indiana for “merit” selection earlier this week. Justice O’Connor dismissed the idea that judges should be chosen by the people through democratic elections and trots out the Founding Fathers in support of her cause:
“Our forefathers would be surprised to find they were establishing a tyrannical system when they wrote the Constitution.”
In making this comparison, Justice O’Connor seems to be arguing that “merit” selection is somehow analogous to the federal system of selecting judges. But is this a fair analogy?
Federal judges are chosen by a President who is accountable to the people and confirmed by Senators also accountable the people. Public opinion about everything from the proper role of judges to the judicial philosophy that should guide the decisions of federal judges is so important that presidential and senate candidates devote entire speeches and policy papers to assuring voters their wishes will be taken into account.
Judges who reach the court under “merit” selection, on the other hand, are typically chosen by a small committee that is accountable to no one and is dominated by a single special interest group (lawyers). Neither the state’s governor nor senators can be held responsible by the voters for the ultimate selection because they are bound by the choices of the committee, so the pick isn’t theirs. Judicial selection commissions typically meet in private, making the process even less transparent and less accountable. Once on the bench, judges are “retained” in potemkin elections at rates that would make the old Soviet Politburo members blush.
The Founders believed that judges should be independent, but also accountable, which is why they didn’t concoct a system as undemocratic as “merit” selection. As James Madison wrote in Federalist 39:
“It is essential [Madison’s emphasis] to such a government [a democracy] that it be derived from the great body of the society, not from an inconsiderable proportion, or favored class of it….It is sufficient [Madison’s emphasis] for such a government that the person’s administering it be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves…”
If the federal system was truly analogous to “merit” selection, federal judges would be chosen by a secret committee chosen by lawyers from interest groups like the American Trial Lawyers Association and the American Bar Association; the President would be bound to choose from the list of nominees anointed by the committee; and Senators would have no confirmation role whatsoever. Viewed in light of Federalist 39, it seems plain that “merit” selection – where judges are chosen not by the “great body of society” (i.e. the people), but by “an inconsiderable proportion, or favored class of it” (i.e. a tiny committee of lawyers) – is exactly the type of system the Founders wanted to avoid.
The Soros Connection In Tennessee
April 22, 2009
Picking up on yesterday’s Wall Street Journal editorial, Tennessee blogger Terry Frank asks what role hedge fund billionaire George Soros or his organizations are playing in the ongoing battle over Tennessee’s judicial selection system. Mr. Soros, of course, funnels millions to groups like Justice at Stake, which is lobbying to abolish democratic judicial elections in states across America and impose “merit” selection systems like the one under fire in Tennessee, where a committee dominated by elite legal special interests meets in secret to anoint judges.
Elite Legal Special Interests Reasserting Power Over Judicial Appointments
April 21, 2009
A study documenting the bias by the American Bar Association against conservative judicial nominees – the subject of a March post on American Courthouse – is getting national attention in the wake of the Obama Administration’s decision to “restore the [ABA] to pre-eminence in federal judicial vetting.” A Wall Street Journal editorial sums up the findings of Richard Vining of the University of Georgia, Amy Steigerwalt of Georgia State University and Susan Smelcer of Emory University:
“Looking at federal appellate nominees between 1985 and 2008 across the ideological spectrum, the study found that the most liberal nominees had a 62.3% chance of receiving a ‘well-qualified’ rating from the ABA, as opposed to only a 35.5% likelihood for the most conservative nominees….Nominees in the Clinton Administration were 14% more likely to get the ABA’s highest rating than the nominees of Presidents Reagan, George H.W. Bush and George W. Bush.”
Like “merit” selection schemes at the state level, ABA vetting of federal judicial nominees gives elite legal special interest groups a privileged role in determining who controls America’s courts. Little wonder then, as the Journal reports, the ABA is pushing a version of “merit” selection at the federal level. Anyone want to guess which group would likely get to decide which judges have enough “merit” to be nominated to the bench?
Reform Efforts Gather Momentum In Missouri
April 20, 2009
A Wall Street Journal editorial picks up on the news that legislation to make Missouri’s judicial selection process more transparent and less influenced by special interest groups passed the state House last week. For more info on reform efforts in Missouri, read my previous posts here and here.
As the Journal correctly points out, letting a committee dominated by trial lawyers meet behind closed doors to decide who controls the courts has failed to take politics out of judicial selection in Missouri – unless you think handing control over to one political party is the essence of nonpartisanship.
The failure of “merit” selection – a system where an elite star chamber of lawyers gathers in secret to anoint judges – has also led Tennessee to look for ways to make judicial selection more democratic (that’s with a small “d”). Political leaders are beginning to recognize that shifting the power to select judges from voters to trial lawyers—who only want to pad their wallets—isn’t a great economic strategy:
“The continued reign of a judiciary chosen by trial lawyers and Democratic partisans is showing signs that its time has passed. For states looking to save their economies from tort-lawyer pillage, reducing the power of lawyers to dictate judicial selection would be a start.”
Pay-To-Play In Pennsylvania (And Elsewhere)
April 17, 2009
The Wall Street Journal lifts the rock on a sleazy “pay-to-play” racket involving Houston plaintiffs lawyer F. Kenneth Bailey and Pennsylvania Governor Ed Rendell. In 2006, Bailey made “repeated donations” to Gov. Rendell’s re-election campaign – and a few months later got a “no-bid, contingency fee contract to sue Janssen Pharmaceuticals on the state’s behalf.”
It gets worse. Bailey had already been turned away by Pennsylvania’s Attorney General after offering to file suit against Janssen. Gov. Rendell overruled his AG – for a major campaign donor.
It gets worse. Bailey has filed similar suits, representing the states of Mississippi, New Mexico, Louisiana, and Arkansas. According to the Journal, Bailey’s firm contributed $75,000 to Mississippi AG Jim Hood; $50,000 to New Mexico AG Gary King; $20,000 to a PAC that ran ads for Louisiana AG Buddy Caldwell; and $60,000 to the Arkansas Democratic Party. Bailey also donated $85,000 to the Democratic Attorney Generals Association, which turned around and gave money to AGs Hood and King.
“It’s some racket,” the Journal writes:
“The plaintiffs attorneys come up with novel legal theories under which to sue companies or entire industries. They then solicit state AGs (or cash-hungry Governors like Mr. Rendell) to retain them to bring cases on behalf of the government on a contingency-fee basis.
“The biggest losers here are the cause of justice and the principle of prosecutorial neutrality. When outside lawyers are hired to do the government’s business, and then given a financial stake in the outcome, it creates irreconcilable conflicts of interest. The state delegates key decisions – about whether and whom to sue, what legal theory to pursue, whether to settle and what remedy to propose – to private lawyers motivated by profit rather than the public interest.”
Chief Justice Turns Into Chief Lobbyist In Tennessee
April 17, 2009
Tennessee Chief Justice Janice Holder waded into the debate over Tennessee’s soon to expire “merit” selection system, mocking the idea that she or her colleagues on the Supreme Court should be accountable to the people through democratic elections as “ridiculous.” With the Chief Justice now acting as the Chief Lobbyist against the Tennessee Constitution’s provision that judges “shall be elected by the qualified voters,” at least we can dispense with the pretense that judges chosen by secret commission can be counted on to stay serene and aloof from politics.
Chief Justice Holder opened her campaign with a silly analogy comparing judges to basketball referees. As reported by Jackson Baker at the Politics Beat Blog, Holder presented “a facetious proposal to elect officials taking part in NCAA basketball tournaments, allowing them to raise money, use attack ads against their election opponents and ‘show bits and pieces of video of some of these games where there were bad calls.”
Let’s think about that for a minute.
NCAA basketball referees are accountable for their “bad calls” and can be replaced if their performance slips; Tennessee’s judges are accountable to no one and it’s almost impossible to replace one. When an NCAA referee makes the wrong decision, it only impacts one game; when a Tennessee judge makes the wrong decision, companies can be wiped out, jobs can be lost, property seized, families undermined, schools restructured. NCAA referees can’t make up new rules in the middle of the game; judges can (and do) make up new rules whenever they want. NCAA referees are private citizens; Tennessee judges are public servants.
But Chief Justice Holder’s speech wasn’t just silly, it may have been unethical, according to Tennessee Lt. Gov. Ron Ramsey:
“I don’t know exactly how far that goes and still be ethical, to be honest, for them to be out here speaking to Rotary Clubs and Kiwanis clubs lobbying for a bill. That seems to be against their code of ethics.”
Oh, and one more thing: Tennessee’s Constitution specifically provides that judges “shall be elected by the qualified voters of the state.” As far as I know, there’s nothing in Tennessee’s Constitution about NCAA basketball referees.
HT: Ned Williams
Trial Bar Chases Jobs Out Of Oklahoma
April 16, 2009
In recent months, both Tyson Foods and Conoco Phillips have announced plans to shift a total of more than 1,300 jobs out of Oklahoma and relocate them to other states. More fall out from a bad economy? No, these job losses come courtesy of the state’s powerful trial bar.
“It appears Oklahoma is firmly committed to the trial lawyer lobby instead of industry, jobs and prosperity,” writes Steve Fair, in the OKGazette.com. Fair, who also blogs at stevefair.blogspot.com, blames the trial bar for blocking reform of Oklahoma’s antiquated workman’s compensation system. Oklahoma “still uses the court system to settle worker comp disputes, which creates high premiums for employers and reduced payments to injured workers.”
Oklahoma’s Republican controlled legislature is trying to pass legislation (again) that would reduce job-killing lawsuits by establishing reasonable limits on non-economic damages and curbing lottery-sized legal fees to greedy trial lawyers. But, as Fair notes, Democrat Governor Brad Henry vetoed a similar bill two years ago and shows little interest in letting this one become law, despite his campaign rhetoric supporting these common sense reforms.
You’d think in today’s dire economy political leaders would united and pull out all the stops to prevent jobs from fleeing their states. Many governors now recognize that a fair and predictable legal climate is just as critical as a favorable tax climate and an educated workforce when it comes to luring (or just keeping) jobs to their states. By blocking worker comp and legal reform, Oklahoma trial layers are sending the message to business and the country that they’re more interested in preserving lawsuits than in preserving jobs.