ThePopTort

Is Congress Worse than Trump?

In yIn yesterdays’ Daily 202 from the Washington Post, James Hohmann wrote, “The American people are more focused on the daily drama emanating from the reality television presidency than they are substantive policy issues. Meanwhile, the administration is making meaningful moves every day — and we’re covering them — but these stories are often overlooked in favor of distracting shiny objects."

Yet I have an even more alarming perspective. It’s not just the administration’s daily moves. Check out what Congress is doing. No one’s paying any attention – at all.

This morning, the U.S. House Judiciary Committee began voting on a bunch of terrible bills, some of which were just introduced this week, which would upend centuries of law and/or make it more difficult for people who have been harmed to have their cases fairly heard and/or stop courts from blocking Trump’s illegal actions. Yup, all that just this morning!

Behind it all is the soon-to-be-ex- (thank goodness) Chairman of the U.S. House Judiciary Committee, Bob Goodlatte, a Republican who has represented Virginia’s 6th congressional district since 1993. Last year, Goodlatte rammed through his committee five bills that together, strip away major legal rights from everyday Americans. He was so fixated on making sure these bills passed with the greatest amount of harm to victims, that he forced the committee to re-vote on an amendment - after he lost - that would have prevented his legislation from violating state constitutions. Last month, Goodlatte's son Bobby “blasted” his own father “for his role in ruining [FBI agent Peter] Strzok’s career, tweeting, “I’m deeply embarrassed that Peter Strzok’s career was ruined by my father’s political grandstanding. That committee hearing was a low point for Congress. Thank you for your service sir. You are a patriot.” Bobby also urged voters to elect a Democrat to replace his  father.

So let’s just say, today’s hearing isn’t all that surprising.  As explained by a number of public interest groups who literally overnight turned in a letter of opposition to four of the bills, here’s what the House Judiciary Committee majority, chaired by Mr. Goodlatte, wants to do:

• Ban nationwide injunctions – the kind of injunctions issued by federal judges to slow down or prevent harm caused by some of the more destructive policies of the Trump Administration.
• Radically change the law of diversity jurisdiction, forcing a vast number of state cases into federal court that have no business being in federal court. It’s essentially a corporate forum-shopping bill since corporate defendants prefer to litigate in federal court.
• Break up the Ninth Judicial Circuit at the behest of corporations and the right, even though everyone from the American Bar Association to the judges themselves object to this.

We’re tired of covering this type of dumb, destructive and corrupt policy-making. Today is primary election day in New York State (home of ThePopTort!), and we’re reminded of our message to you this fall: get out there on November 6 and vote!

Big Business, "Tort Reform," Money, and Judicial Elections - Scary Stuff

With Halloween tomorrow, there’s a lot out there to be scared of.  And here’s one more thing.  A great article out this week in Mother Jones, discusses something we’ve been talking about, and scared of, for years…  money and influence in judicial elections.  See here, and some of our earlier coverage here, and here. And, importantly, the role that "tort reform" and the highly partisan industry lobby group, the U.S. Chamber of Commerce, have played in judicial elections for years.  

With Election Day less than a week away, we’re happy to see people worried about big businesses influence over these elections.  Mother Jones notes, “the Chamber spent $10 million on judicial races in 2000 alone.  It pumped $4.4 million into Ohio’s Supreme Court election – the largest expenditure from a single source on a court race in U.S. history” after the Court struck down the state's Draconian tort reform law.  And they didn’t stop there.  It poured “tens of millions into races in Illinois, Michigan, Mississippi, and Wisconsin” over the next few years, pouring money into races to oust judges that don’t agree with, and support, their pro-business, pro-tort “reform,” anti-consumer agenda.

Consider the example of State Supreme Court Justice Louis Butler.  In 2008, the first African American Supreme Court Justice in Wisconsin was also the first sitting justice to lose his seat on that court in 40 years:

Butler's opponent, Michael Gableman, had been showered with campaign donations from business leaders, who were keenly aware of Butler's role in two decisions. One was a 4-3 ruling to strike down a $350,000 limit on so-called pain-and-suffering damages in malpractice suits. The other held that if an individual harmed by lead paint exposure couldn't identify the producer, then multiple paint companies could be held liable under a legal theory known as “risk contribution.”

 Butler was targeted because he ruled in favor of consumers. 

 This is nothing new.  In fact, according to a 2013 study from the American Constitution Society and Emory University, points out that unlike other groups that contribute to state judicial candidates, business groups are focused solely on this issue:

Business groups usually have an unambiguous agenda in most state races – to help pro business, pro-tort reform judges get elected.  Indeed, tort reform has become the primary issue in most state judicial races. 

So the Chamber is flooding money into these elections to keep victims from holding corporations accountable for their misconduct and, unfortunately, their influence is dominating one area of these campaigns.  So far, this election cycle, state Supreme Court candidates, political parties, and special interest groups have spent $9.1 million on TV ads.  The gross majority of that special interest money is coming from big business.  “In 2006 business groups were responsible for over 90 percent of the television advertising paid for by interest groups.”  And their dominance over television ads is only increasing. 

 Their efforts are working:

It is estimated that the pro-business U.S. Chamber of Commerce spent $100 million between 2000 and 2003 on judicial campaigns.  Most of these efforts were successful.  Between 2000 and 2004, 36 of the 40 judges whom the Chamber supported were elected.

And, worse still, once these judges get elected, they do exactly what big business wants and side with Corporate America over average Americans…

The more campaign contributions from business interests the justices receive, the more likely they are to vote for business litigants when they appear before them in court.  Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.

That’s a lot scarier than Halloween!

ALEC and the Civil Justice Games!

Here at ThePopTort, we do battle everyday with the some of the most dangerous forces in the world.  It’s exciting stuff!  And we’ve been thinking, with our national Hunger Games obsession and the Summer Olympics right around the corner, sports (or “sport” as some would put it) are clearly on the brain.  So why not spread our excitement.  In fact, we’d like to propose a new “sport,” which we’ll call “Gutting Legal Rights.”  Here’s what we can tell you about it, so far.

We’ll begin by thanking Common Cause and its IRS complaint against the American Legislative Exchange Council (which we covered here).  We now have access to various member directories of ALEC’s Civil Justice Task Force, and agendas for its meetings back to 2010.  So with that as our guide, let’s see how this new sport might work.  (Some kind of “atholon” perhaps.)

Our first task has an exciting goal: to make sure the legal community – you know, the folks who actually know something about the law and what judges do - have less and less say about which judges get appointed to the bench.  So the first task is to see how quickly a state can enact the U.S. Chamber of Commerce model to establish state commissions that tell Governors what judges to appoint, requiring that two-thirds of its members be non-lawyers – and then to pack it with your own business representatives.  I’m sure competition will be stiff for those juicy slots!

Our second task is to see just how difficult we can make it for judges to interpret their own state laws, (which they seem to think is their fundamental job). In particular, if a judge interprets a law to allow for a private right of action against a wrongdoer, the task is to figure out as many ways possible to hamstring this judge.  (For bondage ideas, read the new bestseller, Fifty Shades of Grey.  And if they still won’t behave, the first contestant to call in the federal marshals wins!)

Now for a really big task – consolidate every model bill that harms victims of product defects, making it nearly impossible for them to sue reckless manufacturers, including drug companies that cause injuries or deaths.  For this task, participants will have to confuse lawmakers with pages and pages of legislative language, figure out what each provision actually means for everyday Americans and then make sure the final model bill screws them over in every possible way.  It’s a tedious task but the payoff will be euphoric, if you’re into that kind of thing.

Now, in terms of our athletes, let’s see who has already made it into the ALEC Civil Justice Directory.  We'll take a look at one of them, Summer of 2011, for example.  Here we find the competition’s already started between the insurance industry and pharmaceutical companies.  Farmers, State Farm, National Association of Mutual Insurance Companies, American Insurance Association and Property Casualty Insurers Association vs. GlaxoSmithKline, Pfizer, Bayer, Merck and PhRMA.  Wow, some match up.  I’m not sure which giant industry dominates that contest!

But the packaging industry (Georgia-Pacific, Crown Cork & Seal) is making a strong showing so don’t count them out.  And we can’t forget the energy and oil industry (ExxonMobil, Shell, Entergy, Honeywell), the railroads (BNSF) and that old standby, Koch!  Wait, here’s the tobacco industry making an appearance again with their entry – Altria.  Now that’s exciting! And coming up the rear is a newcomer in the civil justice wars – Taser International  We don’t know for sure, but perhaps their involvement has something to do with some unfortunate fallout from various “don’t tase me bro”-type incidents.  No doubt they’re looking for some protection – the legal kind, that is. 

Now we’ve also got some great sponsoring members for these wonderful athletes: the American Tort Reform Association, the U.S. Chamber Institute for Legal Reform, Lawyers for Civil Justice (representing the corporate lawyers), the Federalist Society, the National Federation of Business (NFIB) and the Pacific Research Institute.

I can’t imagine this won’t work. 

Judge John M. Roll - Violent Threats for Doing His Job

We at ThePopTort, like you, are terrible shaken up by the horrible events in Tucson.  As many already know, fatally wounded federal judge John M. Roll, sadly, had lived with violent threats against his life in the past.  This was because he – like Rep. Giffords –was simply doing his job: he allowed injured plaintiffs to pursue a case.  So, we thought we would tell you a little more about this case. 

The case was Vicente v. Barnett, which was heard in Judge Roll’s court.  This was a civil rights case resulting from anti-Latino hate crimes, the second one (here’s a chilling description of the first) brought by MALDEF — Mexican American Legal Defense and Educational Fund - against a violent border vigilante, rancher Roger Barnett, his wife, Barbara, and his brother, Donald.  As described by MALDEF, 

The plaintiffs are five women and 11 men who were resting at a wash in Douglas, Arizona when they were accosted by defendant Roger Barnett who was armed with a gun and accompanied by a large dog. Roger Barnett held the group captive at gunpoint, threatening that his dog would attack and that he would shoot anyone who tried to leave. During the encounter, Barnett kicked a plaintiff as she was lying, unarmed, on the ground.

In February 2009, a civil jury found in favor of the women plaintiffs and awarded damages on their claims of assault and intentional infliction of emotional distress. The case was a victory in favor of the plaintiffs who suffered unjustly from Barnett's extreme and hateful antics.

According to the Arizona Republic,

When Roll ruled the case could go forward, U.S. Marshal David Gonzales said in 2009 that talk-radio shows cranked up the controversy and spurred audiences into making threats.

In one afternoon, Roll logged more than 200 phone calls. Callers threatened the judge and his family. They posted personal information about Roll online.

"They said, 'We should kill him. He should be dead,'" Gonzales said.

In an interview with The Arizona Republic in mid-2009, Roll, who was the chief federal judge in Arizona, said both he and his wife were given a protection detail for about a month.

"It was unnerving and invasive. ... By its nature it has to be," Roll said, adding that they were encouraged to live their lives as normally as possible. "It was handled very professionally by the Marshals Service."

At the end of the month, Roll said four key men had been identified as threat makers.

The Marshals Service left to him the decision to press charges but recommended against it. Roll said he had no qualms about following their advice.

The recommendation was based on the intent of those making the threats.

"I have a very strong belief that there is nothing wrong with criticizing a judicial decision," he said. "But when it comes to threats, that is an entirely different matter."

Judges should not have to live with threats, even the non-violent kind.  We honor Judge Roll.