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‹ FEATURED DISCUSSION

November 01, 2006

Six more observations

By Ted Frank

I agree with Walter's assessments, but I have some other observations.

1) A big story for the Democrats is how, while leftist activists attempt to purge some successful party candidates who were perceived as ideologically incorrect, the party itself has been willing to embrace nontraditional Democrats. It would be potentially exciting that a Reagan Democrat like James Webb returns to the party. But it turns out to be disappointing: the campaigns of Webb (Senate, Va.) and Bob Casey (Senate, Pa.) simply parrot ATLA talking points. Heath Shuler (NC 11) and Mike Weaver (KY 2) ignore the liability reform issue entirely; they're "conservative" because they don't support abortion rights. That the Democrats continue to avoid a popular issue that is (1) good for the country and (2) could attract many independents and moderate Republicans shows just how in thrall they are to the trial lawyers.

2) In contrast, the Republicans in the legislative branch (if not the executive branch) have had little compunction in throwing their supporters to the wolves if they think it will get them votes. It's Chuck Schumer and Nancy Pelosi who are calling for scaling back Sarbanes-Oxley, the bill where Congressional Republicans acted like a matador in waving it through; Congressional Republicans have been happy to go along with the bogus claims of gas-price gouging.

3) Another interesting story: what happens if the Democrats strip Joe Lieberman, headed for easy reelection, of his seniority? He may just be the last Democrat in the Senate who regularly takes reasonable positions on liability reform—though it's promising that Charles Schumer has recently seen some light. I just don't see this scenario happening unless the Republicans hold 52 seats, and perhaps not even then; the risk of Lieberman switching parties is too great.

4) Speaking of the Senate, the best case scenario for the Republicans is 52-48, with 51-49 or 50-50 or even 49-51 more likely. But even in the best case scenario, conservative Supreme Court judicial nominations are going to have trouble, especially if it's a replacement of a Stevens or a Ginsburg. While Alito got 58 votes, including from several Democrats, the Democratic whips will be working harder to embarrass Bush in a closer vote.

5) ATLA is throwing money into a handful of House races, but not once in their expensive advertising campaigns do they raise issues of liability reform.

6) The House race where liability issues come up strongest is Iowa's open First Congressional District (vacated by Jim Nussle, running for governor) where Republican Mike Whalen is running against Iowa Trial Lawyers Association president Bruce Braley. Whalen's advertising calls Braley a "greedy trial lawyer" and criticizes his ties to ATLA and some of his cases directly. Braley wrote a 1998 op-ed defending the result in the infamous McDonald's coffee case, and that's been used against him, too. This is a change of pace from the quieter Republican hands-off approach against John Edwards's record in 2004, though that might just be because voters do not care much about VP candidates. Reuters has Braley up by seven points; lefty bloggers have rehashed ATLA talking points in defending Braley, but Braley himself largely ignores the liability reform issue, though that won't be the case when he's in Congress.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.