An AHA! Moment
January 29, 2010
Opponents of democratic judicial elections held a confab earlier this week at Georgetown Law School featuring – surprise, surprise – former U.S. Supreme Court Justice Sandra Day O’Connor, who has become something of an Empress Dowager to the “merit” selection crowd, popping up to speak from time to time, always earning low bows from the assembled courtiers. (Gavel Grab reported on the event here.)
Justice O’Connor had little new to add to the debate, other than that after the Citizens United ruling now we’ve really, really got to stop people from voting for judges. To me, by far the most interesting statement came from Bert Brandenberg, head of the George Soros Center for a Non-Democratic Judiciary (otherwise known as Justice at Stake), when he raised the issue of judicial recusal standards:
“Recusal is a battle for the soul of the judiciary 20-30 years from now.”
I realize this may not be an aha! moment for everyone, but it confirmed what I’ve been saying for weeks, which is that recusal standards have become a back door way for liberals to try to marginalize conservative judges and shape the composition of our courts, at least in certain cases.
NYT Article Cites AJP Report
January 28, 2010
Yesterday’s New York Times business section featured on article on global warming litigation. The reporter cites a 2008 report published by the American Justice Partnership - the organization I head up - and the Southeastern Legal Foundation entitled, The Most Dangerous Litigation in America.
It appears that business is finally waking up to the threat these suits possess. Here’s an excerpt from the article:
“…In the context of climate change, such cases were once derided as frivolous long shots that would be shot down quickly. Scott H. Segal, a lawyer for energy companies, joked in a 2004 article in Grist magazine that the cases brought “new meaning to the term ‘nuisance lawsuit.’
“No one is laughing now. In a report issued last year, Swiss Re, an insurance giant, compared the suits to those that led dozens of companies in asbestos industries to file for bankruptcy, and predicted that ‘climate change-related liability will develop more quickly than asbestos-related claims.’”
CA Supreme Court On Recusal: “Mere Appearance of Bias” Not Enough
January 26, 2010
“Merit selection” supporters, treading water in many states in their attempt to eliminate democratic judicial elections, are looking to open a new front in the fight for America’s courthouse. Their latest strategy is to target judicial recusal standards — turning recusal into a back door way for special interest groups to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
Two weeks ago, the Wisconsin Supreme Court stopped such an effort in its tracks when it refused to adopt a rule that proposed automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. The Wisconsin court wrote:
“[campaign] donations, endorsements or independent spending around elections are not enough to force judges off cases.”
And last week the California Supreme Court added its voice to Wisconsin’s. Law.com has the specifics of the case - here’s the money quote from the article:
“…Following an ‘exhaustive review’ of ‘a delicate realm of constitutional law,’ the justices said that ‘while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient…”
When fuzzy “appearance of bias” standards are used for recusal decisions it’s an invitation for unscrupulous trial lawyers to do whatever it takes to remove judges they fear might be unsympathetic to their cases.
Want proof? Look to Michigan. The supreme court there recently abandoned century-old recusal standards in favor of vague disqualification rules based on “appearances,” not facts. Just weeks later, trial lawyer Geoffrey Fieger demanded the state supreme court kick off three justices from the appeal of a case.
Kudos to California and Wisconsin for standing firm.
Trial Lawyers Buy Themselves Gifts
January 26, 2010
In previous posts (here and here) I highlighted the trial-bar-friendly provisions that magically made it into House and Senate health care bills. Carter Wood over at PointofLaw reports that not only were these “friendly” provisions - they might well have been authored by trial lawyers themselves. The trial bar spent more than $1.3 million lobbying Congress on a host of pet issues, including special health care provisions.
More on Wisconsin’s Recusal Standards
January 22, 2010
Our friends over at Justice at Stake and the Brennan Center are huffing and puffing because the Wisconsin Supreme Court decided not to adopt a recusal standard proposed by special interest groups that would have triggered an automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. Instead, the Wisconsin high court ruled that campaign “donations, endorsements or independent spending around elections are not enough to force judges off cases.”
JAS and Brennan believe the decision is in “clear conflict” with the U.S. Supreme Court’s Caperton ruling. I guess we’ll find that out during the litigation scrum that is sure to follow. What is abundantly clear is that recusal standards have become a back door way for special interest groups to try to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
In Wisconsin, the process heated up after voters unceremoniously dumped former liberal Justice Louis Butler. Since then, special interest groups have failed to replace democratic judicial elections with “merit” selection – where lawyers, rather than voters, choose judges. Now they’ve failed in an attempt to use recusal standards to hinder the ability of voters to exercise their First Amendment rights by contributing to the candidates of their choosing.
Those First Amendment rights got another boost yesterday when the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (or labor unions for that matter, “are entitled to the same right that individuals have to spend money on political speech for or against a candidate.”
I can already hear the predictable howls of protest that corporations will now be free to “buy” any public office they want, including judgeships. The proposed solution will be just as predictable: Instead of having gullible, easily misled voters pick judges, let’s turn the job over to a small group of elites – all of whom, it goes without saying, are smarter than mere citizens anyway.
Wisconsin Supreme Court Debating Recusal Rule
January 21, 2010
Does a $1,000 campaign contribution automatically compromise a judge’s integrity? By a slim 4-3 majority, the Wisconsin Supreme Court appears to believe the answer is “no.” A final vote on a new recusal standard is expected today, but the Court issued a proposed order earlier this week.
In addition to rebutting the insulting assertion that their souls could be bought for a measly $1,000, the majority also recognized the chilling effect such a rule would have on the rights of voters to participate in the election of the public servants who control the judiciary:
“Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs a judge’s integrity. It would have the effect of discouraging the broadest possible participation in financing campaigns by all citizens of the state …”
Recusal standards for state supreme courts have become a new battleground. Special interest groups that cannot get their favored candidates elected use them to try to shape the ideological composition of the courts. In Michigan, for example, the high court recently adopted recusal rules that will make it easier for trial lawyers to remove conservative judges from their cases.
The Milwaukee Journal Sentinel editorializes that “votes are not fools” and that the real issue is “whether Supreme Court justices will be perceived as just your ordinary common politician, thought to be willing to dance with the folks whose big money brought them to the ball.” (Hat tip: Gavel Grab.)
The idea that every other public official is merely doing the bidding of “big money” contributors is a pretty strong indictment. But if the Journal Sentinel has any actual evidence to suggest that Wisconsin’s justices are offering votes as quid pro quos for contributions, they’re keeping it to themselves.
The fact is, if a judge is truly selling her vote, Wisconsin’s judicial code of conduct surely provides ample means to remove her. If Wisconsin voters – who are “not fools” after all – believe a judge is too cozy with his contributions, they can get rid of him in the next election. Fortunately, Wisconsin’s Supreme Court majority seems to understand that there’s no need to undermine democracy to protect the public from a corrupt judge.
Update on Ohio Judicial Elections
January 19, 2010
The Marietta Times (Ohio) ran an article yesterday on the ongoing debate in Ohio over whether to preserve state judicial elections. Thomas Moyer, Chief Justice of the Ohio Supreme Court, has been leading the charge to scrap Ohio’s elections in favor of “merit” selection. Moyer has promoted his effort nationally, allying with former U.S. Supreme Court Justice Sandra Day O’Connor and speaking at events around the country.
Back home in Ohio, folks are hardly chomping at the bit to put judicial selection in the hands of legal elites, at least according to the Marietta Times article. In it, the Washington County public defender, the Marietta City Law Director and a sitting county judge all say they’d prefer to let the people decide.
Money quote:
“I’m 100 percent for people retaining their right to elect their officials” — Washington County Common Pleas Judge Ed Lane.
Stay tuned.
Trial Lawyers Seeking Goodies in Congress (or What Does $233 Million Buy in Washington?)
January 12, 2010
“Coming off a likely victory in the healthcare debate, the trial lawyer lobby is gearing up for other items in its legislative agenda for the year, hoping to gain as much ground as possible before the midterm elections,” according to a report in Congress Daily (subscription required). Considering that lawyers/law firms funneled an astounding $233 million to federal campaigns in the last election cycle (thanks, opensecrets.org), as you might expect, that list is pretty long.
So what is the trial bar hoping $233 million buys this year in Washington? The goodies on the trial bar’s agenda include:
- Legislation to make it easier to sue manufacturers of medical devices;
- Legislation to make it easier to sue nursing homes;
- Legislation to make it harder for businesses to use alternative dispute procedures such as pre-dispute arbitration clauses in contracts;
- Legislation to make it easier to sue foreign manufacturers.
Of course, the trial bar already scored a huge win at the expense of doctors and patients when both the House and Senate balked at including medical liability reform in health care legislation. This despite the fact that everyone knows curbing frivolous malpractice cases reduces both health insurance premiums and the practice of costly defensive medicine.
Letting Trial Lawyers Pick Their Judges
January 11, 2010
Back in November, I wrote about the danger that the fuzzy new recusal standards adopted by Michigan’s Supreme Court would encourage unscrupulous trial lawyers to try to remove justices they fear might be unsympathetic to their cases. As if on cue, sleazeball supreme Geoffrey Fieger is demanding that the court remove not one but three justices from the appeal of an upcoming case.
Fieger’s past attempts to sideline justices have been dismissed as the incoherent rantings they are. Now, however, any group of four Michigan justices can decide to temporarily unseat a colleague (or three) for any reason whatsoever. The Supreme Court’s action on this recusal request will help decide whether, under the new rules, the composition of Michigan’s top court is determined by Michigan voters or by the likes of Geoffrey Fieger.
Congressional Research Arm Backs Up Tort Reform Savings
January 11, 2010
The Congressional Budget Office sparked a mini firestorm in Washington when it estimated that tort reform would save the federal government (and the taxpayers who fund it) $54 billion in lower health care costs. Trial Lawyers Inc. was aghast and the lawsuit industry’s lackeys on Capitol Hill shot off a letter to CBO questioning the findings. According to a piece in the Washington Examiner, CBO is not backing down. In a letter to Congressman Bruce Braley (a former trial lawyer), CBO concluded:
“After a careful evaluation of the research relevant to tort reform, along with discussions with members of the agency’s Panel of Health Advisors who have particular expertise in this topic, CBO concluded that the weight of empirical evidence now demonstrates a link between tort reform and the use of health care services.”
Translation: Tort reform cuts down on the practice of defensive medicine – including expensive tests doctors order just to avoid being sued. Unfortunately, CBO’s analysis seems to be having little impact on congressional majorites. As I’ve posted earlier, the House health care bill actually punishes states that have dealt effectively with the medical liability crisis.