Trial Lawyer Lobby Scores Several Big Victories — But Signs Of Hope In A Tough Election Year
November 5, 2008
Democratic state Supreme Court candidates – backed by the money and influence of the powerful trial lawyer lobby – scored several victories last night that could result in the rollback of important legal reform legislation and lead to a more lawsuit-friendly, anti-business environment. The trial bar also strengthened its grip on the judicial selection process in Kansas and Missouri. Yet rule-of-law judicial candidate also won races in many key states, providing signs of hope in an otherwise tough election cycle.
A 2008 election roundup:
Michigan: A “scathing” ad campaign financed by the Michigan Democratic Party along with Senator Obama’s landslide in the state helped Diane Hathaway upset Supreme Court Chief Justice Clifford Taylor. Ms. Hathaway’s victory will weaken the current rule-of-law majority on the court and worsen the business climate in Michigan’s already devastated economy.
Mississippi: Rule-of-law candidates captured three of the four Mississippi Supreme Court seats up for grabs. Although Chief Justice Jim Smith was upset by challenger Jim Kitchens, business-backed challengers Bubba Pierce and David Chandler defeated incumbents Oliver Dias, Jr. and Chuck Easley. Meanwhile, rule-of-law Justice Ann Hannaford Lamar beat back her challenger to retain her seat on Mississippi’s high court. The result should be a fairer, more predictable legal environment, which Gov. Haley Barbour believes is critical to attracting investment and jobs to Mississippi.
Louisiana: Greg Guidry won a pivotal seat on the state Supreme Court – a victory that is expected to help a rule-of-law majority take control of the high court.
Alabama: Republican Greg Shaw squeaked to victory over Democrat Deborah Bell Paseur in the race to fill the seat of retiring Republican Harold See. The Alabama Supreme Court will retain an 8-1 Republican majority.
“Merit” Selection: Residents of Johnson County, KS voted down a ballot initiative that would have restored the right to vote for county judges and ended the current “merit” selection process. In Greene County, MO, voters narrowly (by about 4,000 votes) approved an initiative to adopt “merit” selection, which has been used by all three Courts of Appeal and the Supreme Court in Missouri since 1945.
Wisconsin: Back in April, Wisconsin voters ousted Supreme Court Justice Louis Butler – who was appointed by a Democratic governor only after decisively losing his own bid for election and who promptly shifted the high court sharply toward the trial lawyer agenda.
All in all, the 2008 elections provide strong evidence that American voters support judicial candidates that will exercise judicial restraint by interpreting the law, rather than legislating from the bench. But as we saw in Michigan, the trial bar and supporters of an activist judiciary are both financially and philosophically committed to fighting this battle out state by state, race by race. The trial bar and its allies are not afraid to wage tough, nasty, expensive campaigns to shift the courts in their ideological direction. If the legal reform community wants to hold onto the gains we’ve made and even extend them, we must have that same level of commitment.
‘Bama Columnist Gets It Wrong
September 17, 2008
In Alabama, David Prather, a columnist for The Huntsville Times, today makes fun of the current Supreme Court campaign in that state.
Alabama preserves the rule that judges running for election may not promise how they would rule in specific cases. The reason for this is obvious: we want judges who will decide cases impartially once they hear them, not decide cases in advance and not promise favorable rulings in exchange for support (whether from the voters or a “merit” selection commission). But Prather criticizes judicial elections as an “essentially inane process” that provides “no information” for voters.
Nonsense. There’s plenty of information for voters to consider: how judges have already ruled in cases, for instance. This gives the voters a sense of an individual judge’s judicial temperament. Mr. Prather, please call your assignment editor: It’s the job of newspapers like The Huntsville Times to cover the courts and to get information on judges’ decisions out to voters, just as they cover the legislature or the governor.
Next, Prather writes,
“When you get to the state Supreme Court level, justices are constantly having to determine what a law means. By doing that, they are, in effect, interpreting legislation. That interpretation becomes law. In other words, the job description of a Supreme Court justice is legislating from the bench.”
Prather couldn’t be more wrong.
Interpreting a statute isn’t the same as legislating it. As Chief Justice John Marshall famously wrote (in Marbury v. Madison), “It is emphatically the province and duty of the judicial department to say what the law is.” If, for example, the judiciary declares a law unconstitutional, the court sends it back to the legislature for reconsideration. The court does not write a new law, merely overturns an old one.
Judges aren’t writing new statutes every time they decide about the validity of a contract or a will or when they rule whether a particular party is at fault in a car accident.
So it’s not the judge’s role to legislate from the bench.
If Prather wants a judge who legislates from the bench, who gets up every morning with a passion to remake the world in his or her image without regard to what the legislature or other judges have decided, he can vote for one. If a majority of his fellow citizens agree, he’ll get one.
That’s why Alabama wisely preserves judicial elections.
Alabama Trial Bar Scheming To Control State Supreme Court, Roll Back Tort Reform
September 4, 2008
Skip Tucker, Executive Director of Alabama Voters Against Lawsuit Abuse, fills in voters about the unholy alliance powerful Alabama trial lawyers and Attorney General Troy King to roll back tort reforms by wresting control of the state Supreme Court from rule-of-law justices.
Here’s the game: File bogus lawsuits against PR-challenged companies like ExxonMobil which everyone knows will be thrown out of court. Then use these decisions as a sledgehammer against judges who believe courts exist to uphold the rule of law, not pad the already bulging pockets of filthy rich trial lawyers. After packing the court, roll back Alabama’s important tort reform legislation, which has turned the state from an economic basket case to an attractive location for investment and jobs. As Tucker points out:
Alabama only got manufacturers like Hyundai, Toyota and ThyssenKrupp after tort reform laws were passed in 1999. If the trial lawyers regain the court, their candidates, like [Alabama Supreme Court Justice] Sue Bell Cobb, will throw out these important tort reform laws.
It goes without saying that wealthy trial lawyers have funneled millions in campaign contributions to elect Justice Cobb, shifting funds through more than 20 PACs, and are prepared to spend millions more to control Alabama’s highest court. That’s the price of democratic elections – but I believe that Alabama voters armed with the facts will recognize that a Supreme Court in the pocket of the trial bar is not in the state’s best interest.
No Merit for Alabama
September 4, 2008
The Montgomery Advertiser in Alabama backs a call by Democratic state Supreme Court candidate Deborah Bell Paseur to abolish democratic judicial elections and replace them with “merit” selection – where lawyers meet in secret to decide who gets to wear the black robes. Paseur complains:
Begging for votes …is demeaning to the institution of the judiciary.
It’s a terrible system – our democracy. All this tiresome business about “of the people, by the people, for the people.” I can only imagine how appalled Ms. Paseur must have been watching Senator Obama – running for an office far more consequential than the state judiciary – demean himself before 80,000 real live people in Denver last week, not to mention the millions more who watched on television – almost begging Americans to vote for him. The horror.
I know we’re supposed to believe that judges are different from all other public servants; that it somehow sullies their independence if they must stoop to explaining to voters what philosophy will guide their decisions – rulings that directly impact the lives of millions of citizens. No one has been able to prove that a judge’s independence is sacrificed by standing before the people in democratic elections. But we do know with certainty that another equally important principle is sacrificed when we take away the right to vote and substitute “merit” selection: the principle of public accountability. Read more