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Other judicial nominations to watch: Liu, Butler, McConnell

By James R. Copland

At NRO this morning, I argued that it was important to keep an eye on judicial nominations other than Elena Kagan's to the Supreme Court:

[I]n 1986, the Democrats in the Senate were so focused on attacking William Rehnquist -- whom Ronald Reagan had chosen to elevate to chief justice of the Supreme Court -- that they made nary a noise about Reagan's pick to succeed Rehnquist as an associate justice. Thus it was that Antonin Scalia was confirmed to sit for life on the highest court in the land with 98 senators in favor, and none against.

It's incumbent on those of us who care about the judiciary to keep this in mind as the nation's attention focuses on Elena Kagan. Only a tiny fraction of cases decided by the appellate courts are granted review by the Supreme Court, which means that those lower appellate benches are usually the courts of last resort in the federal system. And because so many cases never make it even that far, federal trial courts wield enormous power, too.

I focused on three nominees of concern:

  • Goodwin Liu, my law school classmate (see previous posts on this site);

  • Louis Butler, of Wisconsin Supreme Court lead paint and med-mal fame (see ealier posts here); and

  • Jack McConnell, the plaintiffs' lawyer who was Senator Sheldon Whitehouse's symbiotic partner in Rhode Island's $3 billion-lead-paint-verdict fiasco (see posts here, and earlier writings here and here).

Liu's nomination was voted out of the Judiciary Committee today on a straight (12-7) party-line vote.

Our readers may recall that Butler's nomination also passed out of Judiciary last year on a 12-7 party-line vote but wasn't acted upon by the full body; and that the president resubmitted his nomination this January.

McConnell's hearings before Judiciary were scheduled for this afternoon. As Carter reported, the U.S. Chamber of Commerce came out strongly against this nomination on Tuesday, and my piece today in NRO was joined by critical editorials in the Washington Times and American Spectator.

Five propositions on the election

By Walter Olson

I wouldn't mind being proven wrong on any of these, but here are five tentative propositions on next Tuesday's vote:

1) Voters intend to punish Republicans for reasons that have little to do with litigation reform. I haven't run across any reports of campaigns in which a Democratic challenger has tried to make an issue of a GOP incumbent's support of the Class Action Fairness Act or med-mal reform, for example.

2) On the other hand, with a few exceptions as in the Pennsylvania Senate race, Republicans don't seem to be promoting national litigation reform as a campaign issue the way they did in previous cycles. One reason may be that it's hard to blame Democratic obstructionism when Congress and the White House have been in Republican hands so long, the GOP Senate having of course served as the longtime boneyard of federal legal reform proposals.

3) None of which makes the issue anything less than crucial as an underlying factor, sometimes behind the scenes and sometimes not, in races from coast to coast. It is lost on no one that Eliot Spitzer pulled off his meteoric rise by using the law to confront businesses. One cannot grasp the peculiar twists and turns in the Texas gubernatorial race except as reflecting the desire of prominent trial lawyers there to punish pro-reform incumbent Rick Perry by whatever means comes to hand. The issue remains hugely salient in statehouse politics from Tallahassee to Madison to Oklahoma City to Sacramento.

4) Even leaving aside the Spitzer example, we continue to live in the golden age of the activist state attorney general. Rhode Island's Sheldon Whitehouse, much criticized on this site for his lawsuits against former lead paint manufacturers, appears on his way to knocking off incumbent U.S. Senator Lincoln Chafee. Minnesota's Mike Hatch holds a narrow lead in his challenge to GOP incumbent Gov. Tim Pawlenty; Hatch's bad ideas have included suing companies that make cold medicines because meth abusers buy the stuff and cook it into their preferred drug. And Patricia Madrid of New Mexico, who has mounted a strong challenge to incumbent House member Heather Wilson -- among other races we'll discuss this week.

5) Of all the trends afoot, quite possibly the most significant as a setback for legal-reform prospects is one covered in today's NYT: Democrats are set to recapture control of many state legislatures from Republicans.

Comments from reader Thomas Zak

By Walter Olson

Here are some comments from reader Thomas Zak in Indiana:

I wanted to respond briefly to some of your comments in today's featured discussion. The numbers match up with your initial points.

1) I agree that litigation reform is a dead issue in this election, but I disagree that it was ever a serious issue to begin with. The med-mal caps suggested before were no more than a Band-Aid on a gunshot wound. No major party has ever come out strongly in favor of returning sanity to our system through either a restoration of the basic principle of “assumption of risk” or the more radical idea of loser-pays.

3) Eliot Spitzer has been able to pull off his activist AG stint by having the luck of NYC and Wall Street within his jurisdiction. By having an trillion dollar industry well known for financial shenanigans under his purview, he has been able to find real scandals which can be exposed (and exploited).

The other AGs are left with the crumbs. In many cases they have latched onto questionable “scandals” like the paint industry lead fiasco in order to create a scandal out of whole cloth.

5) Given that Democratic control of congress is a possibility and that many Republicans are also opposed to common sense reforms, we must understand that national legal reform is dead – until the next major scandal of a multi-billion dollar verdict against an innocent corporation. If the public ever realizes how these all too common cases affect their pocketbooks through lost jobs and higher prices, then litigation reform will have a chance.

The problem is that the connection is too weak for the public to see since most cannot even balance their checkbooks and are gullible enough to believe that speeding drunks that roll their trucks should be given millions in compensation for “design flaws’ in traction control systems.

So the national debate is lost for now. The real question is what can be done at the state level. What comprehensive plan can be put in place to convince ANY state government to bring justice back to their justice system instead of just waiting for the next scandal and then tweaking the rules slightly?

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.

"Democratic Congress Could Reshape Tort Reform"

By Ted Frank

This Oct. 23 BestWire story by R.J. Lehmann is subscriber-only, but we'll give you the parts that quote me and Walter:

Now, given polling that strongly indicates the Democrats are likely to pick up at least the 15 seats needed to take control of the House in the Nov. 7 general election, the 110th Congress is expected to take a very different approach to tort reform issues than the one that preceded it. But to reform advocates, the practical effect of the changes aren’t likely to be as drastic as one might expect, noted Ted Frank, director of the American Enterprise Institute Liability Project.

"On the federal level, the bottleneck has always been the Senate," Frank said, citing that body's rules of procedure which require 60 votes to cut off debate and bring a bill to a floor vote. “No tort reform [bill] has passed in the Bush Administration without significant bipartisan support. That's still going to be true today, and it would be true whomever is in charge, barring some unlikely super-majority."


Walter K. Olson, a senior fellow with the Manhattan Institute's Center for Legal Policy, suggested changes in party leadership could introduce new solutions to some vexing issues. For instance, under a Democratic leadership, the asbestos trust fund proposal — which enjoyed some bipartisan support in the form of cosponsor Sen. Patrick Leahy, D-Vt. — could be restructured to include some measure of government funding, an idea that Republicans had strongly opposed.

"This may be one area where not being allergic to federal spending could open up new grounds for possible compromise," Olson said. "If the U.S. Navy were not a government entity, it would so clearly have been the number one defendant (in asbestos suits.) The general reluctance for the government to take any responsibility for its part is puzzling at best."

This year's ballot measures

By Walter Olson

There are plenty of initiatives on the ballot this year with implications for law and litigation. Twelve states will consider measures on eminent domain, ten will confront tobacco taxation and regulation, eight will vote on constitutional gay-marriage bans, and six will consider minimum-wage hikes, constitutionally inscribed or otherwise. The Initiative and Referendum Institute tracks the status of these and other measures in its latest election preview issue (PDF).

Notable for its absence: a flurry of tort-related initiatives, the kind we saw last time around. Possibly the backers of such measures have been scared off by the trial bar's long track record of organizing "revenge initiatives" aimed at inflicting as much pain as possible on whatever interest group is perceived as standing up to the lawyers. Or perhaps the backers have noticed that when voters approve a measure inconvenient to the lawyers, state courts like Florida's sometimes proceed to invalidate or gut the measure. So why put yourself through the trouble?

One minor exception to the general lull: Arizona voters will consider Proposition 102, which would prohibit illegal aliens from receiving punitive (as distinct from compensatory) damage awards in lawsuits. That measure is part of a package of proposals intended to toughen up enforcement of immigration laws, however, and doesn't seem to have much of a connection to wider efforts to reform punitive damages.

Two miscellaneous, dubious ballot proposals relate to children: Question 3 in Massachusetts, backed by the Service Employees International Union, would facilitate unionization of home-based child care workers. Both the Boston Globe and the Boston Herald oppose it. Measure 3 in North Dakota would mandate "shared parenting" and prescribe a default assumption of joint custody after divorce unless one parent could prove the other unfit; it would also limit support payments to those adequate to cover a child's "basic needs". (Proponents; opponents; AP summary; Wendy McElroy; Bismarck Tribune coverage and editorial).

P.S.: A couple of major omissions in the above list: the Michigan Civil Rights Initiative, discussed favorably by George Will and Stephen Chapman, and South Dakota's scary judge-bashing Amendment E, discussed by Ted here.

Initial thoughts: Meet Me In St. Louis

By James R. Copland

My initial thoughts on Election '06 are, in general, very much in line with Ted's and Walter's. The U.S. House is going to change hands, period. The question is not if the Democrats will take control but whether they'll have a sufficient margin of victory to have real working control, versus a bare majority.

The Senate could change hands, too. I think whether the GOP has control of the Senate, even slightly, is more important than my friend Ted does. Voting down a Supreme Court nominee by a majority is very different, in terms of electoral resonance, than via a filibuster. "Majority rules," if dubious in terms of public choice theory, makes for a potential rallying point--and filibustering a conservative appointment to the High Court could be a great antidote to disenchantment among the Republican base. Of course, if nobody steps down from the court over the following 2 years, I tend to agree that 49-51 and 50-50 aren't too different.

As of a week or two ago, I'd have said the GOP would hold on to the Senate with the barest of majorities. But George Allen's continuing gaffes--highlighted most recently by his effort to paint Jim Webb as a sex pervert based on his acclaimed war novels--make it look much more likely that Virginia could switch over.

The unknown variable in that race is the anti-gay marriage ballot initiative, one of the several Walter alludes to. The Old Dominion State's version is particularly troubling, I think, in that it potentially abrogates private contracts by stating that Virginia "shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage." Proponents insist that the language is intended to prevent courts from recognizing a right to civil unions--an argument sure to be reinforced by New Jersey's recent decision to that effect. See the decision here. How the courts would ultimately interpret the amendment is an open question, though, and we should expect lots of future litigation over custody and trust/estate issues, among others, were the amendment to pass. From the Senate race standpoint, the question is whether the amendment will mobilize "base" voters, on either side, and if the conservative base is so mobilized, whether they'll stay home with Allen or cross over in some numbers to former Republican and war hero Webb.

If the Allen seat does switch, and the Dems hold onto Maryland and New Jersey, which seems likely, and take over the Santorum, Chaffee, DeWine, and Burns seats, which seems even more likely, the Dems will have a net pick-up of 5, one below their magic number, with only GOP two seats in play, Tennessee and Missouri. Harold Ford has run a good race, but Corker looks to be well-positioned there, notwithstanding pundits' efforts to make the RNC's satiric ad into a "Willie Horton" issue. (Or perhaps because of those efforts--the Dems were the ones who brought both ads to the fore; and one can't imagine that the moderate majority of Tennessee folks who aren't racist like to be portrayed as backwater dupes by the national media.)

Which brings us to Missouri, where the race between Talent and McCaskill is the closest on the Real Clear Politics tracking polls, and split 50/50 on the trading markets. The race for national control of the Senate may thus come down to how long they keep the polls open in the home of the World Series champs.

As for interesting state races to watch, my eyes will first go across the Mississippi from St. Louis, to Madison County, the topic of my next post.

World's most grudging election endorsement?

By Walter Olson

Speaking of lucky Democrats, here's the San Diego Union-Tribune's editorial endorsing the trial bar's most durable ally in Sacramento, Attorney General Bill Lockyer, in his race for state treasurer (via Taranto):

The Democratic candidate for treasurer, Bill Lockyer, has displayed a vicious partisan streak in his eight years as attorney general, using his powers to sandbag initiatives he doesn't like and to file frivolous lawsuits solely to score political points with unions and environmentalists. In his previous job, as Senate president, he was the epitome of the pay-to-play Sacramento culture, famously blocking a law meant to keep criminals out of California casinos and card clubs after taking hundreds of thousands of dollars in donations from the gambling industry.

Incredibly enough, we have no choice but to endorse him. His Republican opponent, Board of Equalization member Claude Parrish, is simultaneously flippant, uninformed and unfocused. Lockyer may be the devil, but he's a smart devil. Were Lockyer treasurer, it is incomprehensible that Californians might someday wake up to learn that the state had lost billions of dollars because he made complex financial decisions without due diligence. That is not the case with Parrish.

We set out to give Lockyer the most grudging election endorsement in the history of the printed word. We hope we have achieved our goal.

"Get-out-the-lawyer efforts"

By Walter Olson

I love that phrase, used in this Baltimore Sun article about the parties' massive preparations "for an election that could be fought as vigorously in Maryland's courts as at the polls." Much more on the Litigation Day that comes after Election Day in the John Fund article linked here.

Rep. Baker (R-La.) on the election

By Ted Frank

"I just never thought I’d live to see the day when liberals would, as they have with relation to the markets, so openly advocate more taxation, more regulation, and more litigation, and, with a straight face, argue that most Americans would find this to be an attractive prescription for their financial well-being." Also:

Frivolous lawsuits are undeniably and unnecessarily raising the costs of doing business in America, and frightening off investors. I am convinced that common-sense securities-litigation class-action reform is not only a necessary component for safeguarding our global competitiveness, but that it also will cut the costs for plaintiffs in legitimate suits without diminishing the quality of representation. And while it is encouraging to see New York’s Democratic Sen. Chuck Schumer write in the Wall Street Journal this week that “it may be time to revisit the best way to reduce frivolous lawsuits without eliminating meritorious ones,” I would be more confident in the prospect of bipartisan collaboration on this effort were it not for the hundreds of millions of dollars in campaign contributions the Democrats reap from these firms — Milberg Weiss among them.

Will Wilson on the Connecticut AG's race

By Ted Frank

Will Wilson, of AEI's Federalism Project, gives us this analysis:

The shortlist of “most inventively and aggressively extraterritorial rent-seeking AGs” reads: Spitzer, Lockyer, Crist, and Blumenthal. Two of these chaps, Crist and Spitzer, will most likely move into their respective governor’s mansions in a few months. General Lockyer has been term-limited into a probable position as Treasurer Lockyer. An important question, then, turns on Richard Blumenthal: Will the thus-far short-lived Spitzer approach—what Michael Greve calls indictment-driven inverted federalism—catch on institutionally, or will it die off when General Spitzer and his generation leave office this fall? A Blumenthal victory would go a long way toward keeping AG litigulation at the helm of national economic and industrial policy decisions.

Fittingly, Mr. Robert Farr, Blumenthal’s challenger, has centered his campaign on “silly suits” and the role of the attorney general from a public choice standpoint. Of course, his campaign strategy is a bust, if laudably so. What sane Connecticutter would vote against an AG who redirects out-of-state money into Connecticut’s coffers? One commenter on the Connecticut Local Politics blog described Blumenthal: “he is a very proactive AG and he does push the limits of his statutorily granted authority. For the most part, however, I think it has been to the benefit of the people of CT.” (Some would add that he pushes the limits of his constitutionally granted authority as well.) But that description captures the impossibility of Farr’s campaign—as well as the collective action problem presented by Spitzerism. No sensible state would stop scraping the surplus of the others while itself being scraped by them; they must all be locked into a “federal jurisdiction in federal matters” paradigm. To update an old phrase, they must be hung together, else they most assuredly will hang each other separately.

Since no voter would opt-in to that scheme voluntarily, Farr has to make his pitch more realistically palatable. To do so, he has adopted a slightly different tack: he highlights cases in which Mr. Blumenthal’s litigation has itself cost more than the eventual settlement or award has brought back to Connecticut. His minister of Silly Suits radio ad, for instance, notes a suit against the Big East Conference in which Connecticut grossed $1M, but netted negative $1M due to high legal costs. Of course, such an attack plan is just barely more politically productive than simply reading James Buchanan’s complete works over the airwaves.

And this raises a second hurdle over which Farr, and all parties interested in reversing the AG power trend, will have to leap: surplus swiping lawsuits come with a built-in publicity apparatus. The AG announces a new multi-million dollar settlement and—voila!—he no longer needs to campaign. (If that sounds like hyperbole, try google searching for Richard Blumenthal’s campaign website.) Such settlements are necessarily appealing to rational, self-interested voters. And the AGs have another inherent political edge that even incumbents to other offices do not have: unlike legislators, they need not share their coups with others; unlike governors, they are mostly unconstrained by the legislature. Sue as you like, settle for what you can get, and take all the credit.

Barring a federal intervention into a true collective action void, no sane voter will stop them. Inasmuch as this AG trend cuts across both parties equally (the unwritten bipartisan agreement to fleece globally), inasmuch as Congress fears rocking the boat, and inasmuch as the states themselves will never voluntarily want out, no preexisting institutional mechanism will halt the trend any time soon. Eliot Spitzer’s move will not clot the hemorrhaging of global surplus via settlements; the Blumenthal campaign (if you can find it) et al. will see to that.

The Second Amendment angle

By Walter Olson

Dave Kopel has a long and informative race-by-race run-down in National Review of the gun angle in Tuesday's election, with numerous references to the Protection of Lawful Commerce in Firearms Act, one of the genuine accomplishments of the past Congress. In general the outlook for gun rights supporters is not looking too bad, but New York as usual is a giant exception, as Kopel notes in this passage:

Imagine if a political party ran a slate consisting of Lord Voldemort, Doctor Doom, and Lex Luthor. That’s the situation facing gun owners in New York, where the top of the Democratic ticket is a collection of anti-gun rights super-villains. The extremist anti-gun record of the Clinton White House is well known. As attorney general, Eliot Spitzer filed an abusive lawsuit against firearms manufacturers, one of the many cases in which his office abused innocent people and business. As secretary of housing and urban development, Andrew Cuomo orchestrated his own slew of abusive lawsuits against law-abiding gun manufacturers.

Update: Kopel also has this post-mortem.

Extending this discussion

By Walter Olson

With much more in the pipeline -- several liability reform activists around the country have volunteered reports from the front line -- we're going to extend this roundtable past the usual five-day limit and let it run on into next week. It looks like there won't be any shortage of material, so stay tuned.

The year's nastiest judicial race?

By Walter Olson

They don't come much nastier than the one in Georgia, where incumbent state supreme court justice Carol Hunstein, a favorite of the state's trial lawyers, is being challenged by former Bush Administration official Mike Wiggins, who's backed by business groups. See these stories from the Associated Press, Savannah Morning News, and Atlanta Journal-Constitution, and also this column from the AJC's Jim Wooten. You may want to take a shower afterward.

Wisconsin governor's race

By Walter Olson

Incumbent Democratic Gov. Jim Doyle had been running comfortably ahead of his Republican challenger, U.S. Rep. Mark Green, but the latest poll suggests a tightening race, with Green only six points behind. Liability issues have been an important factor in the race since Gov. Doyle vetoed four civil justice reform bills last January, including curbs on lead-paint and gun lawsuits, a product-liability bill, and a measure that would have moved Wisconsin's lenient expert-evidence standards toward a Daubert standard. Not long before that, Gov. Doyle vetoed a measure that would have limited medical malpractice recoveries, although he later signed a less restrictive measure.

Oklahoma, Arkansas AG races

By Walter Olson

Oklahoma Attorney General Drew Edmondson, much criticized (here, here, and here; see also here and here) for hiring campaign-donor law firms and Motley Rice to pursue potentially lucrative chicken-lot-runoff lawsuits on a contingency fee, appears far ahead in his race for re-election, though Republican challenger James Dunn has campaigned on the issue. In Arkansas, attorney and state representative Dustin McDaniel, who in private practice sued gun manufacturers after the Jonesboro school shooting, is well ahead of a Republican rival; meanwhile, the state's current AG, Democrat Mike Beebe, is favored in a bid for the governor's office.

Those judges of Madison County

By James R. Copland

I promised an entry on the upcoming elections in and around Madison County, Illinois -- that infamous jurisdiction we've highlighted in 3 Manhattan Institute studies (here, here, and here) and our recent Trial Lawyers, Inc.: Illinois report. Rather than giving you my take, I'll give you this extensive look by Ed Murnane, who as the president of the Illinois Civil Justice League -- the main legal reform group in the state -- is very close to these races and has a view from the inside:

Perhaps the most disheartening aspect of Madison County Round II -- a.k.a. the judicial elections in Southern Illinois two years after the historic Karmeier-Maag race –- is the likelihood that Madison County Round III is only two years away....

That long-term forecast is likely to be reality because of the recent death of Illinois Appellate Judge Terrence Hopkins, who served on the Fifth District Appellate Court, based in Mount Vernon. That’s the same court where Gordon Maag served and where present Appellate Justice Stephen McGlynn is fighting to hold off Maag’s pals and win the seat for the next ten years.

It does not get easy in Southern Illinois.

But enough about the future (maybe a bit more later). The present is here and we're into the final critical days -- yikes, it's really only hours -- to learn if the success of 2004 will be repeated in 2006. At this stage in 2004 –- three days out -– we were virtually certain that Lloyd Karmeier was going to be elected to the Illinois Supreme Court.

Today, it is not as certain that Justice Steve McGlynn will hold on to the Appellate seat he was appointed to by Karmeier.

As in 2004, the dollars are huge and costly television ads have been competing with ads for statewide candidates. Since Southern Illinois is primarily served by non-Illinois television markets, voters in Missouri, Kentucky, and Indiana are once again learning about Illinois judicial candidates, just as Illinoisans are learning about governors and senators from strange places.

Here's the situation: Steve McGlynn, a St. Clair County lawyer, was appointed to the Appellate Court by Justice Lloyd Karmeier to fill the vacancy created by the ouster of Appellate Judge Gordon Maag. (The appointment authority is one of the best aspects of being a Supreme Court justice.) According to the law and the process, McGlynn served until the next election (that's this year) and then has to seek a full ten-year term. Judicial elections in Illinois are partisan so the Republican McGlynn is looking to the same traditional Republican sources for financial support. And the Democratic challenger, a Saline County judge named Bruce Stewart, is looking to the same traditional sources that Southern Illinois Democrats always look to: organized labor and plaintiffs' attorneys. Did we mention plaintiffs' attorneys?

Stewart has a few things going for him that McGlynn does not. He has been a trial judge for the past ten years, while McGlynn has been practicing law. And he is from Saline County in the very southern reaches of the state (almost to Kentucky) while McGlynn is from St. Clair County –- the junior partner of the despicable "Madison and St. Clair Counties" axis.

It was not happenstance that a non-Madison-St. Clair candidate was selected by the still-powerful plaintiffs' lawyers. They can read tea leaves, as well as public sentiment and voter instincts, so they selected a non-Madison-St. Clair candidate, especially after Justice Karmeier selected McGlynn of St. Clair County, even if McGlynn has nothing to do with the problems of St. Clair County.

Both sides have pumped thousands of dollars into the fray, although on a slightly smaller scale than the 2004 festivities. Most of the Karmeier supporters (ourselves included) have contributed heavily to McGlynn and the plaintiffs' lawyers are solidly with Stewart.

Adding to the mix in 2006 is a handful of other judicial elections that all revolve around the same issue, i.e. fixing what's wrong in Madison and St. Clair counties (if there is anything wrong, a question answered firmly in the negative by the establishment forces).

One of the critical and entertaining second tier elections is for a circuit court (trial court) seat in Madison County. Justice Karmeier appointed a former Madison County state's attorney to fill the vacancy and seek a full term this year. The Democrat-trial lawyer establishment picked a prominent local asbestos lawyer as their candidate. Republican Donald Weber and Democrat David Hylla are setting spending records for an Illinois circuit court seat, as are McGlynn and Stewart at the appellate court level.

One Madison County plaintiffs' firm, SimmonsCooper, already has contributed more than $160,000 to Hylla's campaign. Weber has no such sugar-daddy (we're helping as much as we can) and is being vastly outspent. But if Weber is able to remind voters in Madison County that the same dark forces they fought in 2004 –- and defeated -– are back again, he can win.

Another interesting Madison County battle is the fight for "retention" being waged by three sitting judges who must win the approval of 60 percent of the voters to stay on the bench. The three, including Chief Judge Ann Callis, a former plaintiffs' attorney and daughter of one of the legends in Madison County, Lance Callis, have promised reforms in the courthouse. They have acknowledged problems and mistakes and actually seem to be sincere. Our political action committee decided not to take a stand -– recommending neither a "vote yes" nor a "vote no." We'll let the local voters decide if they think the trend is in the right direction.

Just south of Madison County, in St. Clair County, a circuit court race of a different kind is taking place. Judge Lloyd Cueto decided he could not get the 60 percent needed to be retained so he is running in a contested race for his own seat. Although not as closely tied to the plaintiffs' lawyers in Madison County, Cueto is none-the-less friendly to them and reform-minded activists want him out. He is being challenged by a relatively unknown but courageous lawyer named Paul Evans, who doesn't have a lot of money but looks like he could pull it off. We are doing everything we can to help him.

There are 100 other counties in Illinois –- Madison and St. Clair are not the only two. We have a large one named Cook County with a fairly major city as its county seat. There are more than 80 judicial candidates running in Cook, mostly from Chicago but some from the suburbs, and we are watching them closely.

But somehow, none of it ever seems as interesting and significant as what happens in Madison and St. Clair Counties. And after the ink dries on this year’s ballots, they’ll be lining up and raising bucks for the 2008 installment: Madison County Round III.

Those interested in more information on the Illinois races should check out the Illinois Civil Justice League's, which promises information today, tomorrow, and through tomorrow night on these and other races in the Prairie State.

Michigan election update

By James R. Copland

Bob Dorigo Jones, president of Michigan Lawsuit Abuse Watch, sends in this update on tomorrow's elections in the Wolverine State:

The big news in the Michigan Supreme Court election this year is that there is no big news. The two incumbents who are running for election--one nominated by Republicans and one nominated by Democrats--are considered likely to be re-elected and have spent only a fraction of what incumbents have spent in recent years.

Altogether, the five candidates for the two seats on the state Supreme Court (2 Democrats, 2 Republicans and 1 Libertarian) have spent about $214,000 on their campaigns according to a report in the Detroit Free Press last week. Compare that to the nearly $15 million spent by all parties (including interest groups) in 2000 when there were three seats up for election, and it is clear that this election is much different from the heated, high-stakes elections we have seen in recent years.

The difference is that the trial bar believes it doesn't have a chance to change the balance on the court in this election. There is a 5-2 split on the court with the four justices having solid records on limiting the spread of liability beyond what the legislature authorizes and putting the clamps on frivolous lawsuits, and one being in that camp most of the time.

Of the two justices considered more pro-plaintiff, the one who is up for re-election, Michael Cavanagh, has been on the court for 23 years. A former Republican legislator who was chair of the House Judiciary Committee is running for the seat and would make a very good member of the high court. However, he faces an uphill race and considerable competition for funding from the two other high-profile statewide races for governor and U.S. Senate.

The GOP-nominated incumbent who is up for re-election, Maura Corrigan, is an excellent judge with a solid record on civil and criminal matters. She has also distinguished herself as a champion for children and families, and the plaintiffs' bar has not mounted a serious challenge to her seat. Instead, the plaintiffs' bar is spending heavily to re-elect the incumbent governor, Jennifer Granholm, who has already rewarded them by appointing members of the Michigan Trial Lawyers Association to the state Court of Appeals in her first term.

Because of the low likelihood of a change in the Supreme Court, and because so much money and attention is being focused on the gubernatorial election, Michigan's top political pundit, Bill Ballenger, characterized the election for Supreme Court in Michigan this way: "We're back to the sleepy old races we had in the early 1990s."

For those of us who are pleased with the make-up of the Supreme Court in Michigan and eager to stay heading in the same direction, that is a good thing.

Delaware, Maryland AG races

By Walter Olson

Joseph R. Biden III, otherwise known as Beau Biden, is the son of Senator you-know-who. He's now running for Delaware attorney general, locked in a tight race with Republican Ferris Wharton that has attracted large out-of-state donations on both sides. As Ted pointed out last July, citing a Madison County Record report, "the SimmonsCooper law firm has affiliated itself with the 36-year-old's Delaware law firm in bringing asbestos lawsuits in Delaware, presumably because Madison County is no longer available as a blank-check venue."

Next door in Maryland, meanwhile, Montgomery County D.A. Doug Gansler is expected to win easily as the Democratic candidate for attorney general of his state. According to the AP, "For models, [Gansler] looks to New York's Eliot Spitzer and Michael Moore, the former Mississippi attorney general who sued tobacco companies. Gansler consulted with both during his campaign." Not recorded is whether Moore gave him tips on how to steer billions in contingency-fee legal work to cronies and campaign backers.

Florida: AG race, Supreme Court retentions

By Walter Olson

The Florida attorney general's office is opening up because of Republican incumbent Charlie Crist's bid for the governor's mansion (in which he appears to be narrowly ahead as of this writing). The battle to succeed him pits Democrat state senator Skip Campbell, a plaintiff's trial lawyer, against longterm U.S. Rep. Bill McCollum. Liability reform is said to be the chief issue in the race. A poll last week had the two tied, but a new one shows McCollum with an eleven-point lead.

Meanwhile, three members of the Florida Supreme Court's liberal majority (Barbara Pariente, Fred Lewis and Peggy Quince) are on the ballot for retention, and are expected to cruise to easy wins with few if any voices raised in opposition. Scripps columnist Kenric Ward finds this peculiar given the justices' record of questionable, and deeply controversial, decrees on matters ranging from the Gore recount to the striking down of school vouchers (he might have added a number of the court's liability rulings).

Not your usual AG candidate

By Walter Olson

Former California Gov. Jerry Brown is overwhelmingly favored to become the state's next attorney general, but don't assume he'll necessarily follow in the footsteps of Bill Lockyer:

"I'm going to take a very practical, common-sense approach as attorney general," Brown said in a recent interview. "I'm someone who's acutely aware of the fact that we as a state have added 25,000 laws since I was governor. I think we ought to give people some space to live their lives." ...

And don't assume that he will agree completely with Lockyer's decisions. Asked about the global-warming lawsuit, Brown said he'd have to "take a good look at it."

"I think there's an issue of causation there," he said, adding that California needs to consider automakers' "imploding" financial situation. ...

"He was the first politician to turn litigation into a press release [as California Secretary of State, elected in 1970]," said Hiestand, the former Brown aide [Fred Hiestand, now prominent in California litigation-reform circles].

In post-Watergate 1974, the reform-minded Brown was swept into the governor's office. One year later, Brown and the Legislature were besieged with pleas from doctors facing skyrocketing malpractice insurance costs. Brown called a special session that would eventually lead to the Medical Injury Compensation Reform Act, or MICRA, California's law capping pain and suffering awards at $250,000.

Hiestand remembers philosophical discussions with Brown on the best ways to compensate malpractice victims. After graduating from Yale Law School in 1964, Brown clerked for state Supreme Court Justice Mathew Tobriner, a contemporary of tort expert and future chief justice Roger Traynor. Brown, Hiestand said, recalled Traynor's critical dissent in a 1962 case where a woman injured on a bus was awarded $134,000 for non-economic damages. Traynor said such awards were troubling because they are tied to subjective amounts of pain and suffering.

"At one point Jerry looks at me and says, 'Money is a false god. If you're in pain, you should turn to religion, sex or drugs,'" Hiestand said.

(Cheryl Miller, "Former Calif. Gov. Jerry Brown Runs for State Attorney General", The Recorder/, Oct. 16).

Nifong faces Durham voters

By Walter Olson

Can prosecutors be made to pay a price at the ballot box for malfeasance? Durham, North Carolina, county district attorney Mike Nifong is up for re-election, and has run well in polls despite his hounding of three Duke lacrosse players -- perhaps the year's banner case of abusive prosecution (see Oct. 11, Oct. 12, Oct. 30, etc.). One challenger, County Commissioner Lewis Cheek, "has said he won't serve if elected, instead allowing Gov. Mike Easley to appoint a new prosecutor"; a third candidate, Steve Monks, has been waging a write-in campaign. (Ray Gronberg, "Durham DA race is hot", Durham Herald-Sun, Nov. 6; Ruth Sheehan, "Turning the tide in Durham", Raleigh News & Observer, Oct. 30). For some recent developments in the case, incidentally, see here, here and here (witnesses say accuser soon after incident performed dances inconsistent with alleged injuries), here (Nifong never interviewed accuser), and here ("Go ahead, put marks on me")(cross-posted from Overlawyered).

GOP's online-gambling ban

By Walter Olson

It wasn't just bad policy; it was also dumb politically (Amy Calistri, "Online Gambling Bill Co-sponsors Are Vulnerable for Re-election", PokerNews, Nov. 6; Radley Balko, "The Green Felt Revolution?", Reason "Hit and Run", Nov. 6)(cross-posted from Overlawyered).

No on state marriage amendments

By Walter Olson

"The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law." (David Boaz, "Marriage measure is an amendment too far",, Oct. 30). For more of the many, many reasons to vote no, see Overlawyered Sept. 20, 2006, May 31 and Nov. 2, 2004, etc., etc. (cross-posted from Overlawyered).

Update: David Frum gloats -- and quite prematurely, it would seem.

California Watch: Prop 89

By James R. Copland

John Sullivan, president of the Civil Justice Association of California, alerts us to the dangers looming if Golden Staters approve Proposition 89:

Californians are today voting on a list of statewide initiatives that includes Proposition 89, a proposal that if passed would do grave harm to legal reform in the Golden State. Pitched as "campaign finance reform," this initiative comes at a time when we are making great strides in reforming California’s civil justice system–-a system that has for far too long been rife with frivolous lawsuits and abuse. If 89 passes, business and civil justice reform advocates will effectively be precluded from participating in the political process in California.

The Civil Justice Association of California board voted months back to oppose Proposition 89.

Proposition 89, would prohibit a corporation from directly or indirectly contributing to an independent expenditure election campaign, which is the only constitutional way a company has to make its views on candidates known to voters.

Equally devastating would be the $10,000 corporate contribution limit on supporting or opposing initiatives.

Personal injury lawyers and other plaintiffs' lawyers are largely unaffected by these limits. (The big trial lawyer players are Limited Liability Partnerships.) This mismatch would set plaintiffs' lawyers up to elect their picks to the Legislature. It would set them up for ballot campaigns to undo voter-passed laws like Proposition 64 of 2004 and win ballot campaigns to further their agenda.

Proposition 89 would, in the legal reform arena, mean unilateral disarmament for us in the very political areas where we've been able to make gains and restore balance. At the same time, the scales would be hugely tilted in favor of those who want to more aggressively use the civil justice system as a revenue raising and social tool against businesses and government entities. If the provisions of Proposition 89 had been in place, none of the following would have been possible:

Passage of Proposition 64 (2004). Businesses of all sizes banded together to pass Proposition 64, which stopped personal injury lawyers who had been using state unfair competition law to extort settlements.

The defeat of Propositions 30 and 31 (2000). These trial lawyer-sponsored schemes would have allowed two lawsuits for every insurance claim, costing the insurance industry and eventually all insureds millions of dollars.

The defeat of Proposition 211 (1996). This was securities class action lawyer Bill Lerach's unsuccessful scheme to end-run federal securities litigation reform and open California courts to his brand of "strike" suits based on stock price changes.

The election of moderate Democrats in recent election cycles, sending to Sacramento more lawmakers who understand the need for a fair civil justice system and are not beholden to the plaintiffs' bar.

Thanks John. We'll be watching the fate of Prop 89, with our fingers crossed.

Election results

By Walter Olson

[This post will be periodically refreshed and updated to reflect incoming results.]

As of 12:05 a.m. Wednesday Eastern time, here are results on some races mentioned in posts above, winner in ALLCAPS:

U.S. Senate: Ct., LIEBERMAN/Lamont; Pa., CASEY/Santorum; R.I. WHITEHOUSE/Chafee.

House of Reps.: Iowa, BRALEY/Whalen; N.M., Madrid trails Wilson.

Governorships: Ark., BEEBE/Hutchinson; Fla., CRIST/Davis; Minn., PAWLENTY/Hatch; N.Y., SPITZER/Faso; Tex., PERRY/Bell; Wisc., DOYLE/Green.

AG-ships: Ark., MCDANIEL/DeLay; Del., BIDEN/Wharton; Fla., MCCOLLUM/Campbell; Md., GANSLER/Rolle; N.Y., CUOMO/Pirro; Okla., EDMONDSON/Dunn.

Judgeships: Ga., HUNSTEIN/Wiggins; Ill., STEWART/McGlynn and HYLLA/Weber (D wins), EVANS/Cueto (R wins).

Ballot measures: Ariz. Prop. 102 (no award of punitive damages to illegal aliens) passes; Calif. Prop 89 (campaign finance) loses; Michigan Civil Rights Initiative wins; N.D. Measure 3 loses; S.D. Amendment E defeated by 9-1 margin; "marriage protection" amendments lose 49-51 Ariz., win 52-48 in S.D., pass by larger margins elsewhere.

Misc.: Nifong re-elected Durham D.A.

Arizona Prop 102 passes; SD Amendment E fails

By Ted Frank

The piecemeal reform would preclude illegal immigrants from seeking punitive damages under state law.

South Dakota Amendment E, which would create a new cause of action against participants in the judicial system, was rejected by an overwhelming margin.

Pryce holds OH-15 despite ATLA campaign

By Ted Frank

ATLA funded an expensive television advertising campaign attacking Deborah Pryce, but she was one of the few Ohio Republicans to withstand the Democratic tidal wave in that state. Out of the five races that ATLA tried to directly influence through tv ads, they won three, with a fourth, NM-1, too close to call, though Patricia Madrid (OL Sep. 13) has a slim lead over incumbent Heather Wilson.

As others have noted, several top Republican appropriations committee representatives (including two targeted by ATLA) lost their districts, putting the lie to the idea that pork protects Republican incumbents. If this loss returns Republicans to their 1994 roots, it may be a good thing in the long run.

Butch Otter wins Idaho governor

By Ted Frank

And becomes perhaps the most libertarian governor in the history of the United States. Otter, a businessman and former representative to Idaho's First Congressional District, has been a strong support of litigation reform. There's a profile of him in this month's Reason.


By Ted Frank

Blumenthal beats Farr handily by close to a 3-1 margin in the race for AG. Incumbent AGs, of course, benefit from tremendous amounts of free advertising that their office can generate through media coverage of political stunts.

Christopher Shays, a moderate Republican liability reform supporter whose seat was thought threatened by the Democratic tidal wave, held onto his CT-4 seat.

Lieberman beat Lamont for the Senate by a double-digit margin, and is now the median Senator, guaranteeing that the Democrats dare not punish him for his independent run. If George Allen does hold onto Virginia or Conrad Burns onto Montana and thus the Republicans onto the Senate, the incumbent can thank Ned Lamont, who distracted Democratic activists into spending millions of dollars on a safe seat.


By Ted Frank

There are some bright lights out there: The Michigan Civil Rights Initiative (Prop 2), the analogue to California's Prop 209, barring race preferences by public institutions, passed 58-42.

In even better news, Mike Cox defended his Attorney General incumbency by a 54-43 margin over his trial-lawyer opponent. Cox had been targeted by no less a personage than Eliot Spitzer himself.


By Ted Frank

Prop 89 (see John Sullivan's analysis) fails by over three million votes.

Prop 87, a tax on oil development, fails by a half-million votes. A $2.60/pack tobacco tax, Prop 86, fell by a smaller margin.

Jerry Brown wins the California AG spot by a million votes. Outgoing AG Bill Lockyer wins his race for Treasurer by a similar margin.

Ohio Supreme Court

By Walter Olson

In another exception to the overall disastrous night for Ohio Republicans, voters gave the GOP a 7-0 majority on the state's high court (although two of the incumbent justices behave more like Democrats). Jonathan Adler has details.

State legislatures

By Walter Olson

Significant, though not unexpected: major gains for Democrats nationwide. Update: more here, from John Hood of the John Locke Foundation.

State judicial races

By Ted Frank

Ohio: Even as Dems won just about every other statewide office, the two GOP candidates won Supreme Court seats in elections there, reducing trial-lawyer allies to a two-justice minority on a seven-justice court. Jonathan Adler comments.

Michigan: Two GOP incumbents won re-election, including potential Supreme Court nominee Maura Corrigan.

In Georgia and Washington, however, Justices Hunstein and Owens held onto their seats easily against challenges from reformer candidates. Not good news for the eventual disposition of reform legislation in Georgia. Perhaps Jonathan Wilson will comment.

Oregon: Plaintiffs' attorney candidate Virginia Linder appears to be leading American Justice Partnership-supported Jack Roberts for an open Supreme Court seat.

North Carolina: Two Democratic incumbents won, and a Democrat won the election for an open seat formerly held by a Republican, cutting the Republican majority there to 4-3.

Colorado: A proposition to establish term limits for judges was defeated. With an incoming Democratic governor, this may not be such a bad thing for judicial activism opponents in the short run.

In lower court races in southern Illinois, trial-lawyer-supported candidate Bruce Stewart defeated sitting judge Steve McGlynn in an multi-million-dollar intermediate appellate race, meaning that Madison County judges will have slightly freer reign; the Fifth District has generally acted as a rubber-stamp for some of the outrageous decisions coming out of Madison County. One hopes that Senator Obama's endorsement and campaigning for Stewart reflected party concerns, rather than him becoming another Democrat captured by the trial bar. A trial-lawyer-supported candidate also defeated sitting Madison County Judge Don Weber; three other sitting judges won retention elections.

House Judiciary Committee

By Ted Frank

One bit of unambiguously bad news from the Republicans losing the House: the new House Judiciary Committee chairperson will be John Conyers, whose stated positions on reform come right out of the ATLA playbook. Conyers' webpage trumpets his unsuccessful opposition to the Class Action Fairness Act, for example. And we'll see fewer (i.e., no) committee hearings on trial lawyer abuses, and more committee hearings on LaRouche-inspired conspiracy theories.

Nevada Supreme Court

By Ted Frank

Not so much a liability reform issue, but Nevada provides a tale of voters recalling a judicial activist who was part of the outrageous Guinn v. Legislature ruling requiring the legislature to disregard constitutional requirements to raise taxes. Hans Bader has details on this and Michigan Prop 2 at CEI Blog.

Poll: 85% of voters support litigation reform

By Ted Frank

From the Institute for Legal Reform:

FOR IMMEDIATE RELEASE – November 8, 2006

Contact: Larry Akey
202/463-5824 or 202/580-9313

Voters Want Congress to End Lawsuit Abuse, Poll Shows

Chamber: Overwhelming Bipartisan Support Makes Legal Reform a Key Issue

Swing Voters "More Favorable" if Legal Reform is Part of Democrat Agenda

WASHINGTON, DC – As the newly elected Congress looks to set its legislative agenda, one issue that enjoys broad bipartisan support from voters is legal reform, according to a poll released by the U.S. Chamber Institute for Legal Reform (ILR).

"Voters across the political spectrum expect their elected officials to curb frivolous lawsuits and abusive practices like fraudulent medical screenings and excessive discovery," said ILR President Lisa Rickard. "We will urge the newly elected Congress to respond to their concerns."

The survey shows that 85 percent of the people who voted in the mid-term election think frivolous lawsuits are a serious problem, and 86 percent say the next Congress should continue to reform the lawsuit system. Three-quarters of those who say they are strong Democrats regard frivolous lawsuits as a problem.

"In an increasingly polarized electorate, very few issues command this much bipartisan support," said pollster Bill McInturff, a partner at Public Opinion Strategies, the firm that conducted the election night survey of 800 people who voted on November 7. The margin of error for the survey is +/- 3.5 percent.

The voters who most helped shape the newly elected Congress say action on legal reform will affect the way they will vote in the future. Among swing voters – people who call themselves political independents and those who have only a weak affiliation to a political party – 63 percent say they will have a more favorable impression of Democrats in Congress if their agenda includes reforms to end lawsuit abuse.

The survey also shows that 81 percent of all respondents think there are too many lawsuits filed in America, raising the price of everyday goods and services, and 84 percent think the number of lawsuits clogs up the court system, making it harder for truly injured people to get justice.

Oregon Punitives Award Thrown Out by Supreme Court

By Michael Krauss

The Supreme Court just overturned the $79.5 M Oregon punitives award against Philip Morris USA, in a 5-4 decision. Justice Breyer, for the court, ruled that assigning punitives based on damages suffered by non-plaintiffs was the equivalent of a "taking of property from the defendant without due process."

More when a link to the decision is available, and when I have been able to read it.






Obamacare Decision: Reactions, July 2012
Law School Faculty Diversity, May-June 2012
Class Actions, May 2012
Constitutionality of Individual Mandate, March 2012
Human Rights and International Law, February-March 2012
The constitutionality of President Obama's recess appointments, January 2012
Do caps on medical malpractice damages hurt consumers?, December 2011
Trial Lawyers Inc.: State Attorneys General, October 2011
Wal-Mart v. Dukes, April 2011
Kagan Supreme Court nomination, May-June 2010
Election roundtable, November-December 2006
Who's the boss, September 2006
Medical judgement, July 2006
Lawyer Licensing, May 2006
Contingent claims, April 2006
Smoking guns, July 2004

Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.