September 7, 2012
One of the favorite tropes of the “merit” selection gang is that contributors to judicial campaigns are trying to “buy the courts.” Of course, it takes a great deal of chutzpah for organizations funded by a billionaire Wall Street speculator to accuse anyone of trying to buy anything … but we’ll leave that aside.
Still, when I read a Washington Post report this morning about an “all-hands-on-deck” meeting at the Democratic convention in Charlotte where senior White House advisors and Cabinet officials “met privately with millionaires and billionaires” to “cajole” them into fueling the Obama re-election effort, I wondered if there would be any outrage from the billionaire-backed gavel grabbers.
After all, shouldn’t these folks be equally troubled by the prospect of “senior White House advisor David Plouffe listen[ing] intently … as a billionaire donor sought his help for a proposed rule protecting captive chimpanzees” or another mega-rich donor “press[ing] him about White House action to protect same-sex couples”? Isn’t trying to “buy” the White House’s favor on these issues just as big a threat to democracy as a business owner who contributes to a state Supreme Court justice who winds up making pro-business rulings?
The usual answer from the “merit” selection crowd is that “judges are different.” It’s OK, they argue, for ordinary politicians in Congress, state legislatures, governors’ mansions and even the White House to sell out to would-be chimpanzee protectors – in fact, that’s what they are elected to do. But judges who accept contributions are instantly tainted and cannot render fair rulings if they have taken campaign cash.
This attitude reflects a warped view of what public service means in our American democracy. Every public servant – from the lowliest county courtroom to the White House itself – has a constitutional duty to protect the common good or what we once called “the public interest.” Legislators represent all the people, not just those who voted for them or contributed to their campaigns.
Governors and presidents must enforce the laws equally for all the people, not just chimpanzee admirers being hit up for dough. Likewise, judges interpret the law equally for all the people, regardless of whether they were placed on the bench through judicial elections or “merit” selection.
Accepting campaign contributions per se doesn’t make a public official less dedicated to the common good. The truth is, campaign donors typically contribute to legislative, executive and judicial candidates they feel are more likely to share their view of government. The quid pro quo that “merit” selection proponents assume comes with every contribution is merely a fiction designed to undermine judicial elections, which, from their standpoint, too often result in the seating of judges who don’t share their ideological preferences. Which is why you won’t hear any noise from the Soros crowd about senior White House officials huddled with billionaire donors discussing federal rules about chimpanzees.
April 19, 2012
Wm. T. Robinson III, President of the American Bar Association, has joined the chorus criticizing President Obama for his pre-emptive attack on the U.S. Supreme Court. In a letter to the Wall Street Journal, Robinson called Obama’s remarks “troubling” and wrote that “we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.”
Obama has a history of attacking the Supreme Court over decisions that do not align with his political views. In his 2010 State of the Union address, Obama blasted the Court’s Citizens United ruling as the justices sat in the front row of the House. Many legal experts saw Obama’s latest attack as an attempt to exert political pressure on the justices prior to their decision on the Obamacare case.
February 23, 2010
President Obama has said he’s willing to work with Republicans on “a comprehensive package to deal with” medical liability reform. But according to news reports, the new package he unveiled yesterday contains not a peep about a reform that even the Congressional Budget Office estimates could cut health care costs by $54 billion.
Throughout the health care debate, the president has never been shy about trashing doctors he believes order up tonsillectomies so they can make more money. He’s also put health insurers in his sights, proposing to put Washington in charge of setting insurance rates. I guess crossing the powerful and generous trial bar ($781 billion in contributions to congressional Democrats since 1990, and yes, that’s billion with a “b”) is a bridge too far.
October 21, 2009
A Washington Times article chronicles a decision by the Obama Justice Department to forbid Kinston, NC (population 23,000) from doing away with party affiliations in local elections. The Justice Department concluded that having city council and mayoral candidates run on a nonpartisan slate “would violate black voters’ right to elect the candidates they want.” (The population of Kinston, NC is two-thirds black.)
“Removing the partisan cue in municipal elections will, in all likelihood, eliminate the single factor that allows black candidates to be elected to office,” explained the former acting head of the Obama Justice Department’s civil rights division. So in other words, the Obama Administration believes the only way an African American can be elected to office is by riding the coattails of the Democratic Party. What a disturbingly condescending view!
The president of the local NAACP found the contention laughable. Said William Cooke, head of the Kinston/Lenoir County branch of the NAACP:
“… even though no party affiliation shows up on a ballot form, candidates still adhere to certain ideologies and people understand that, and are going to identify with who they feel has their best interest at heart.”
Removing the “non” from nonpartisan elections is going to keep the Justice Department pretty busy over the next few years. As the Washington Times article notes, only nine of North Carolina’s 551 cities and towns hold partisan local elections.
March 18, 2009
Is the American Bar Association biased against conservative judicial nominees? Yes! – according to a new study by three political scientists who “specialize in studying the intersection the courts and politics.” Richard Vining of the University of Georgia, Amy Steigerwalt of Georgia State University and Emory University Ph.D. candidate Susan Smelcer examined every nominee to the federal courts of appeal between 1985 and 2008. This analysis of 23 years of judicial nominees revealed:
- Nominees appointed by Democratic presidents are more likely to receive higher ABA ratings than nominees of Republican presidents;
- The more conservative the nominee, the less likely he/she will receive a high ABA rating.
The Bush Administration stopped submitting names of judicial candidates to the ABA prior to their nominations because of this ABA bias, but the Obama Administration will likely revive this practice. Read more about the study in the National Law Journal.
January 14, 2009
President-elect Obama hasn’t even taken the oath of office yet, but America’s leading trial lawyer lobby is already demanding the incoming Administration repeal a series federal regulations aimed at reining in lawsuits against innocent companies, reports LegalNewsline.com. The American Trial Lawyers Association – which has tried to re-brand itself as the American Association for Justice – called on the Obama Administration to block 54 separate regulations at seven federal agencies that preempt state tort claims.
But the trial bar’s real target isn’t administrative regulations – it’s a U.S. Supreme Court decision that keeps hungry trial lawyers at bay, while protecting life-saving medical devices that have been reviewed and approved by the U.S. Food and Drug Administration.
Last year in Riegel v. Medtronic, the Supreme Court ruled 8-1 that state tort claims are barred against manufacturers of medical devices which have received FDA approval. The Court’s decision reaffirmed that Congress explicitly preempted many state tort law claims when it established the FDA’s pre-market approval requirements.
Trial lawyers are pressuring the Obama Administration and the new Democratic Congress to reverse this decision – which would, not coincidentally, create a broad new avenue for mega-tort claims. This is why Lisa Rickard of the U.S. Chamber’s Institute for Legal Reform labeled their plan “a stimulus package” for personal injury lawyers.
The trial lawyer lobby wants us all to believe this is intended to help patients, not fatten the wallets of greedy personal injury attorneys. This is nonsense. As Justice Scalia wrote in his decision, pre-market approval “is in no sense an exemption from federal safety review – it is federal safety review.” And, as Congress knew when it passed the law, the FDA is far more effective at creating uniform safety standards than 50 state courts at the mercy of the trial bar.
As Justice Scalia noted:
State tort law that requires a manufacturer’s catheters to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. Indeed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation.
The Court was right, which is why Federal agencies have been busy bringing their regulations in line with the principles behind the Court’s ruling in Medtronic. The Obama Administration should respect the Court’s decision and let these agencies act. Otherwise, the Court will just have to issue the same ruling all over again – maybe 54 more times.
December 11, 2008
Earlier this year, attorney Lisa Brown, then executive director of the ultra-liberal American Constitution Society, called the Bush Administration’s practice of seeking out lawyers connected to the conservative Federalist Society to staff the Justice Department a “blight on the ‘integrity’” of the department.
That was then.
Ms. Brown was recently tapped to serve as White House staff secretary in the incoming Obama Administration, while American Constitution Society board member Eric Holder is slated to take over as Attorney General. Last year, in a speech to a group of eager young lawyers, Mr. Holder urged them to sign up with the Society because the Obama Administration is “going to be looking for people who share our values” – and a “substantial number of those people” will be ACS members.
Despite the tempting teaser from Mr. Holder, President-elect Obama’s point-person on the Justice Department transition, Dawn Johnsen, says “with confidence” that the new Justice Department won’t be staffed only with ideologically like-minded attorneys – like folks from the ACS. But considering that Ms. Johnsen herself is a also a ACS board member, my guess is promising young lawyers with “Federalist Society” on their resumes won’t be getting many plum jobs at the Obama Justice Department.