KUFM Commentaries 2010
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Current Commentary
Return Of The Copper Collar? (October 26, 2010)
Remington Under Fire
- CNBC Documentary, October 20, 2010


2010 Commentaries

Return Of The Copper Collar? (October 26, 2010)
Gun Safety - Fix Your Remington  (September 28, 2010)
To Preempt State Laws Or Not, That Is the Question  (August 3, 2010)
Citizen Juries - Protecting Citizens And Congressmen (July 6, 2010)
Oil Spills: Damage Caps Don't Work (June 8, 2010)
Liberal Ninth Circuit?  (April 13, 2010)


October 26, 2010
Return Of The Copper Collar?
 

 The Montana district court in Helena recently ruled that Montana’s law that prohibits corporate money in independent expenditure campaigns to oppose or support candidates is unconstitutional. The lead party challenging the law was Western Tradition Partners, a non-profit corporation that runs independent expenditure campaigns.

Following the U.S. Supreme Court’s Citizens United opinion earlier this year, the court found Montana had no compelling state interest in restricting political speech by corporations. The decision did note that Montana’s law was enacted by citizen initiative in 1912, in response to blatant electoral thuggery by the copper companies, but found that interest in preventing electoral corruption too distant in time to be relevant today. The Court ultimately agreed that Citizens United is unequivocal: "the government may not prohibit independent and indirect corporate expenditures on political speech."

The Western Tradition decision leaves corporations free to spend all the money they want to directly, or through front groups like Western Tradition, to oppose or support candidates. The court made it clear however, that the ruling had "no effect on direct corporate contributions to candidates or to any existing or future disclosure laws that might be enacted." It is likely that Attorney General Steve Bullock will appeal the decision to the Montana Supreme Court in an effort to uphold the law enacted by the people of Montana.

How did we get to the point where corporations are treated like actual citizens of our country and state? How is it that an artificial entity that can exist forever, and that owes its very existence to laws enacted by our governments, be afforded the same rights as the rest of us flesh and blood citizens? Well, actually corporations have a right that real people don’t - they get to spend pre-tax money on independent expenditures, while the rest of us have to pay our taxes first and spend from what’s left.

Corporations and their messages have become so pervasive that we hardly even question their place in our country anymore.? It wasn't always so.? Most of us remember our grievances that led to the American Revolution as being against good old King George.? In 1776 we declared our independence not only from British rule, but also from the corporations of England that dominated and controlled us, and extracted wealth from us.
 

In the early days of our country, we the people, through our state legislatures, allowed corporations to be chartered to serve solely as a tool to gather investment and disperse financial liability for the public good, such as construction of roads, bridges or canals.? Our country's founders retained a healthy fear of the threats posed by corporate power and sparingly granted corporations a limited business role.
 

These state laws, many of which remain on the books today, imposed strict conditions.? A corporate charter was granted for a limited time and for a specific public purpose - build your road, dissolve the corporation and pay the stockholders.? Corporations could engage only in activities necessary to fulfill their chartered purpose - no cigarette companies pushing macaroni & cheese and beer too.? Corporations could be terminated if they exceeded their authority or if they caused public harm.? Owners and managers were responsible for criminal acts committed by the corporation.? Corporations could not make any political contributions, nor spend money to influence legislation.? A corporation could not purchase or own stock in other corporations, nor own any property other than that necessary to fulfill its chartered purpose.?
 

Granted limited powers, corporations continually sought more from state legislatures.? Mindful of the corporate tyranny they had cast aside in the Revolution, most opposed any further expansion of corporate power.? Thomas Jefferson said, "I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."
 

The most severe blow to citizen control of corporations was the 1886 Supreme Court case of Santa Clara County v. Southern Pacific Railroad.  A case about local taxation powers became the precedent by which corporations became "persons" under the U.S. Constitution, entitled to all the rights of any other person, even though the Constitution never mentions corporations. The 14th Amendment, enacted to protect rights of freed slaves, has since been used to strike down hundreds of local, state and federal laws enacted to protect people from corporate harm - and, is the reason that the holding in Citizens United is applicable to Montana’s anti-corruption law struck down in Western Tradition.
 

It is appropriate that Western Tradition is the corporation that challenged Montana’s anti-corruption law. It has been active in Montana legislative races, flaunting Montana’s campaign laws for years. This past week, Montana’s Commissioner of Political Practices ruled that Western Tradition violated Montana campaign financial reporting and disclosure laws in the 2008 election.

Among its findings, the Commissioner found that Western Tradition doesn’t report the source of its money, doesn’t fully report it’s expenditures, solicits corporate money while assuring potential donors that their identities will not be revealed, and likely has solicited money from foreign corporations. The Commissioner’s 43 page findings and decision (Graybill v. Western Tradition) can be found online at politicalpractices.mt.gov under the complaints tab, then under campaign decisions.

Western Tradition gives us a preview of what we can expect in the future. We likely will rarely see an independent expenditure solely by a legitimate company, rather we will see front corporations who gather corporate money, refuse to identify where the money comes from, flaunts campaign laws, and floods mail boxes with sleazy attack pieces.

The Citizens United and Western Tradition decisions grant corporations ever more influence in our political process, assuring that corporate domination will continue for the foreseeable future. Sorry Mr. Jefferson, we tried to heed your warning, but corporate personhood has trumped our efforts so far.

Article XIII, Section 1 of our Montana Constitution? provides for our power to charter corporations. It also mandates the Montana legislature to "provide protection and education for the people against harmful and unfair practices by" corporations. Let’s hope the legislature can fulfill its mandate despite the strictures imposed by the Citizens United decision.

This is Al Smith for the Montana Trial Lawyers

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Gun Safety - Fix Your Remington
September 28, 2010

 It’s big game hunting season. Right now hunters are out sighting in their rifles. The rifle season for those lucky enough to draw moose, sheep and goat tags is underway, and the general rifle season for elk, deer, bear and antelope opens next month. Hunting is a family tradition in Montana, a higher percentage of our population hunts than in any other state, and it is common to see parents with their sons and daughters in the woods and on the prairies throughout Montana. Unfortunately, a Montana family may lose a loved one to a hunting accident. While any loss of life is tragic, we are doing better - down from twenty plus hunting fatalities each year in the 1960's to around one or two per year.

It's good to remind ourselves, and our hunting companions, to be extra careful with guns. Those of us who do own and use firearms, whether for hunting or sport shooting, need to make sure that we emphasize safe gun handling practices, for ourselves and those we are shooting with. We need to reinforce the safe handling of guns, remembering to treat each and every weapon as if it were loaded. We have come to place too much trust in the mechanical safeties on our guns, but that trust is misplaced.

Ten years ago, here in Montana, nine year Gus Barber lost his life when a hunting rifle that was being unloaded fired unexpectedly. Most of us who heard the news reports at the time were saddened to hear the reports, and it was especially so for parents confronted with the unimaginable pain of losing a child. For those of us who hunt, especially with our kids, it was a sober reminder of the inherent dangers of firearms and the need to reinforce safe gun handling practices.

I’ve talked before about defective products that injure and kill unsuspecting Americans, like the revelations about defective Firestone tires. Our lives, or those of our families or friends can be quickly and severely altered by a defective product.

Unfortunately, the tragedy of the loss of nine year old Gus Barber’s life was caused, in part, by a defective product. While a Remington Model 700 rifle was being unloaded, the rifle’s safety was released, and the gun fired. The gun firing was an unexpected event for Gus’s family. A Remington Model 700 rifle accidently discharging, however, was not unexpected, by Remington.

Over the years thousands of Remington Model 700 rifles have discharged unexpectedly, including many here in Montana. Faced with owner complaints and lawsuits, Remington, making a cost benefit analysis, chose not to recall the rifles. Remington chose instead to issue a statement to Remington rifle owners about proper gun handling. The statement did not alert Remington owners that there was a potential design problem with their rifles that required added attention to safety.

Remington knew it’s Model 700 rifles had problems. They even launched an internal program to develop a safer rifle. And they did develop a safer rifle, but chose not to market it.

How do we know all this about Remington Model 700 rifles? Because the victims of the tragedies that have resulted from Remington’s design defect have come to trial lawyers for help. Trial lawyers, and the victims’ concerned family members, like Rich Barber, have uncovered the internal documents showing Remington’s knowledge of this problem, and of their knowledge of safer alternatives.

One of the legal aspects of the Remington story has received little attention over the years – secrecy agreements in previous litigation prevented much information about the dangers of the rifles from being made public. Court secrecy is an important issue of safety for all Americans, and it’s impact is not limited to just rifle owners. The civil justice system, unfortunately, has played a role in keeping important safety information from the public, tied up by secrecy orders. They are called "protective orders" or "confidentiality agreements." But whatever the name, orders that seal litigation documents amount to secrecy that can conceal lethal defects in a wide range of consumer products.

One of the benefits of being a trial lawyer is that you get to help people. The down side, is that people usually only seek the assistance of a trial lawyer when they or a member of their family have been severely injured or killed. I have had the good fortune to work with, and become friends with Gus Barber’s dad, Rich Barber. With Rich’s hard work we have been able to pass legislation in Montana to ban these secrecy agreements. Rich’s purpose was clear and concise - he didn't want another Montana family to face the tragedy his had, simply because knowledge of a dangerous product was hidden from public view by a secrecy agreement. A similar law is needed on the federal level.

While there has been no mandatory recall, Remington is offering to modify the defective mechanism for its models 700, 721, 722, 600, 660, XP-100 and XP40. You can check at remington.com under the safety tab, call 877-387-6691 or your local gun shop for the details of the program. There are still millions of defective rifles out there, and thousands here in Montana, please make sure one of them isn’t your’s or one of your hunting buddy’s - like the Darby man injured when his buddy’s Remington accidently discharged.

Gus Barber’s death prompted me years ago to make this yearly plea. Safe gun handling practices are not enough, these rifles are defective - enough is enough, check your guns, tell your family and friends, and just get your Remington rifles fixed. Please don’t wait until another Montana family’s fall hunting tradition turns into yet another preventable tragedy - please do it this season.

This is Al Smith for the Montana Trial Lawyers Association.

CNBC will be broadcasting an hour long story on defective Remington rifles on October 20, 2010 at 9:00 pm.

 

 

 

 

 

 



To Preempt State Laws Or Not, That Is the Question
August 3, 2010

The legal term preemption has been in the news quite a bit recently, mostly in regards to the Arizona immigration law case.  The federal argument was that Arizona’s law was preempted by federal authority - that the U.S. Constitution provides that when authority for an issue has been given to the federal government, immigration in this case, the federal law is supreme and preempts conflicting laws by the states. 

Another side of federal preemption has also been in the news, but you would have to be looking real hard to find the stories on it.  Congress is considering H.R. 5381, the Motor Vehicle Safety Act of 2010, and Section 501 of that bill is specifically about preemption.   It prevents the federal government, through the National Highway Traffic Safety Administration (NHTSA), from attempting to preempt state laws without specific Congressional authority, and eliminates current preemption language in regulatory preambles.  Consumer advocates are supporting the measure, and, of course, big corporations, led by the U.S. Chamber of Commerce oppose the measure.

So why would corporations want the federal government to preempt state laws?  I’ve spoken before about the Bush administration’s crusade to use federal administrative rules to preempt state laws that protect consumers.  Agencies like the Consumer Product Safety Commission and the Food and Drug Administration were attempting to use rules so that the industries that they supposedly regulate would not have to be accountable and responsible in state courts for the harms they cause.

For example, back in August of 2005 the Bush administration began this strategy of using federal administrative rules to preempt state laws that protect consumers.  NHTSA announced a proposed administrative rule for new roof crush standards for automobiles.  Never mind that the standards were written by the auto industry and their agents in NHTSA.  Never mind that the standards did little to actually protect citizens from known safety hazards that account for 6,000 to 7,000 deaths each year.  Never mind that the industry had known about a clear link between roof crush and severe injury since the 1960's, yet they continued to lobby for and get standards that fall well short of what they can do to protect consumers. 

No, the real kicker was that a part of the proposed rules would prevent state courts from holding corporate manufacturers accountable for their failure to provide safe vehicles.  NHTSA has set safety standards for years, usually only after the auto manufacturers have agreed to the standards, and often, only after they have been repeatedly sued in state courts for failing to take reasonable and feasible steps to market a safe vehicle. 

Corporate auto makers have been very successful at convincing NHTSA of their point of view.  Maybe the revolving door of working at NHSTA, then working for the corporate auto makers, then working for NHSTA again and so on, has something to do with that.  They have been less successful, however, in convincing juries in state courts that they should not be held accountable for injuries and deaths that could have been prevented with reasonable and feasible safety modifications.

The proposed roof crush rule tried to take care of that.  It specifically prohibited state court actions if the vehicle met NHSTA standards.  Now I’m sure that when I’ve commented on roof crush standards before that there were people out there who thought - oh, it’s just the self serving opinion of another one of those trial lawyers. 

Prior to adoption of the rule,  the Insurance Institute for Highway Safety released a report on vehicle safety that illustrated how this rush to protect industries endangers all of us.  The Insurance Institute’s report confirmed what trial lawyers and safety advocates had been saying for years - stronger roof crush standards will save lives.  The Institute’s President was unequivocal- “What we do know from this study is that strengthening a vehicle’s roof reduces injury risk and it reduces it a lot.”  The report Roof Strength and Injury Risk In Rollover Crashes can be found on their website at
www.iihs.org.

Twentysix state attorneys general urged NHTSA to drop it’s preemption provision, arguing that it would infringe on states’ rights and shift injured motorists’ medical costs to states.  They objected to taxpayers having to cover millions of dollars in health care costs that were the responsibility of manufacturers of defective vehicles.

State tort law establishes a duty of care that protects citizens when the government is too slow to act, when federal minimum standards are outdated or insufficient to protect consumers, or when standards are not well enforced.  Often, industries agree to safety standards only after they have been held accountable by juries in state courts  for injuries and deaths that could have been prevented with reasonable and feasible safety modifications.  The preemption of state lawsuits removes a significant incentive for industries to improve the safety of products.  Section 501 of the Motor Vehicle Safety Act of 2010 ensures that NHTSA cannot preempt state laws that protect consumers by rule or preamble statements unless Congress specifically authorizes such preemption.

We face two questions with defective products.  First, do we want industries held accountable and responsible for the preventable harms they have caused?  The big corporations’ answer is no.  Second, do we want to prohibit federal administrative agencies from telling us we cannot exercise our Constitutional rights to go to our courts when we, our children, parents or spouses have been injured or killed by a defective product?  Again, the big corporations’ answer is no.  Let’s hope Congress will say yes to consumer safety and no to big corporations by passing the Vehicle Safety Act of 2010.

This is Al Smith for the Montana Trial Lawyers Association.
     
 

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Citizen Juries - Protecting Citizens And Congressmen (July 6, 2010)

Last week, Rehberg Ranch LLC filed a lawsuit against the city of Billings and the Billings fire department.  The corporation formed by Denny Rehberg to subdivide the family ranch into a suburb of little ranchettes, alleges that Billings and its fire department were negligent in fighting wildfires two years ago, and that as a result of that negligence the corporation’s property was damaged.

The basic premise of our civil justice system is that if you are physically injured, if your property is damaged or if your rights are violated, by the wrong doing or negligence of another, you have the right to seek to have the wrong doer held responsible and accountable in a court of law.  The constitutions of the United States and Montana guarantee our rights of access to our courts and to have our cases heard by a jury of our peers. 

The jury was an important aspect of English law that was a hot topic at the time of our nation’s birth.  Juries in England and in the colonies at that time were restricting the power of government and powerful commercial interests to run roughshod over ordinary citizens.  One of the colonists’ grievances in the Declaration of Independence was depriving colonists in many cases of “the benefits of trial by jury.”

Our U.S. Constitution did not originally include the right to a trial by jury, and that omission very nearly prevented the ratification of the Constitution.  Speakers during the ratification debates often proclaimed that the jury box was at least as important to true democracy as the ballot.  It was only upon the promise that the first Congress would adopt a Bill of Rights, including the right to trial by jury in civil actions, the Seventh Amendment, that the Constitution was ratified.

Over the past several decades the public has been deluged with misleading rhetoric that portrays trial lawyers, juries and the civil justice system as the scourge of the land.  An un-American scourge that, if unchecked, will lead to the destruction of business and even the country itself.  This rhetoric flows from so-called tort "reformers," groups and individuals that are almost always fronts for corporations.  The same corporations that trial lawyers hold legally responsible for the injuries their actions or products cause.

Such rhetoric is not new.  The powerful elite of the industrial revolution and Gilded Age also attacked the civil justice system and juries. The attacks came because the powerful were being held legally responsible for the injuries their actions or products caused.  While those powerful interests succeeded in severely limiting the power of juries, they could not eliminate them.  And, populist and progressive pressures were successful in assuring jury trials for injured railroad workers and seamen.

In one of those twists that has elements of both irony and hypocrisy, Denny Rehberg, while a state legislator and in Congress, has been one of those voices singing the corporate siren song for tort reform.  Ironic in that Rehberg now seeks the benefit of a civil justice system that he has previously sought to deny to citizens - his day in court before a jury to seek compensation for an injury he has suffered.  Hypocritical in that he can continuously lambast citizens who have the audacity to go to court against public officials to protect our public lands from harm, yet go to court himself against public officials to seek damages for harm to his private lands. 

Then again, Denny may not see any irony or hypocrisy, after all, it is his Rehberg Ranch corporation that is suing, not him personally.  With the exception of Libby, Denny has been consistently in support of special treatment for corporations in our courtrooms, so this lawsuit may be seen as consistent with his “corporations are special” leanings.

In front of a jury, Denny may have some problems because fellow tort “de-formers” successful disinformation campaigns have hammered home the message that jury awards are out of control.  Every day in courtrooms across Montana prospective jurors questioned about their knowledge and perceptions of the civil justice system, are able to recite back the tort “de-formers” misinformation, and many admit to believing it. 

In sharp contrast to the "out of control" juries lampooned in anecdotes, a RAND Institute study and other studies overwhelmingly have found that real juries perform their duties remarkably well.  Juries follow the court's instructions conscientiously and base their decisions on evidence rather than emotion.  Their decisions are generally in line with what judges or professional arbitrators would have decided, demonstrating that juries are capable of doing justice in even complex cases.  The real problem, for Denny and others, is jurors heeding the tort deformers’ disinformation, and denying liability or reducing damages to less than what was lost.

When you hear the tort “de-formers” message, remember where it is coming from.  These are the same people who denied for decades that there was any connection between smoking cigarettes and lung cancer.  The same people who sold vehicles with defective fuel systems that they knew could explode upon impact in an accident.  The same people who knowingly exposed their workers and the public to asbestos.

Our Constitutional rights are fundamental to our country’s success.  We may not always agree with what someone says, we may even abhor what is said, but we rightfully defend their First Amendment right to speak.  Similarly, while all may not agree with Denny’s decision to sue firefighters who risk their lives to protect us, we should all defend his constitutional right under the Seventh Amendment to take his case before a jury.         

Let’s hope Denny will now plug his ears to the siren sound of tort “reform” and its elimination of jury trials.  All citizens should be able to exercise their constitutional right under the Seventh Amendment to take their case before a jury, just like Denny.

This is Al Smith for the Montana Trial Lawyers Association.


 

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Oil Spills:Damage Caps Don't Work (June 8, 2010)


When we think of America's legal system, it seems we most often think of our criminal justice system and the protections it offers to hold criminals accountable while also shielding innocent citizens from governmental abuses. In some ways, the more remarkable part of our legal system may be our civil justice system and the contributions it and our jury system have made to consumer health and safety.

For over 200 years, the American justice system has been an important vehicle for positive social change. No matter their wealth or social standing, men and women across this country know that if they or loved ones are injured by another, they can hold the wrongdoer accountable. And, often they play a role in ensuring that no other family suffers the same tragedy, by forcing corporations to take unsafe products off the market.

Our justice system has resulted in improved health and safety for all Americans: the anti-miscarriage drug DES, the Dalkon Shield IUD and super-absorbent tampons that cause toxic shock are no longer on the market, ensuring that the health of women will never again be jeopardized by these products; children’s pajamas that burst into flames no longer sit on store shelves; unsafe cribs no longer strangle infants; Firestone tires that blew their treads causing accidents that injured and killed Americans are now off the market; auto fuel systems no longer explode upon impact; garage doors now have automatic reverse mechanisms; trucks have back- up beepers; farm tractors have roll bars; and, the list goes on.

These changes have come about thanks to courageous and determined citizens, and the attorneys who represent them. Together, they have forced the negligent and reckless to account for their acts. Our legal system provides for justice -- through juries composed of ordinary citizens acting as the conscience of the community.

The importance and success of our civil justice system cannot be overlooked, especially now that this very system is under continual assault by corporate America. At a time when Americans increasingly sense an erosion of personal responsibility in society, our civil justice system remains the one institution that holds individuals and corporations and their CEOs responsible for their behavior, and forces them to change their conduct for the better.

Corporate CEOs however, are continually seeking ways to avoid legal accountability. Every year the U.S. Chamber of Commerce, on behalf of the CEOs of the large corporations whose interests the Chamber serves, releases a report purportedly ranking the civil justice system’s of all fifty states. How does the Chamber gather the data for this report? Do they study court data or conduct their own research of court statistics? No. Do they interview judges, plaintiffs and defendants, attorneys for plaintiffs and defendants, jurors, politicians, or even members of the public? No. The only thing they do is to poll some 1,500 attorneys who represent corporations. For Montana, there are usually fewer than 10% of the corporate attorneys polled who profess to having any knowledge of our civil justice system.

The Pacific Research Institute and other corporate apologists also do similar reports. Unfortunately, these type of reports with dubious methodologies and no academic basis become catalysts for tort reform in the halls of Congress and our state legislatures, as corporations try to convince the public and lawmakers that corporations need more protections and citizens need fewer rights.

How successful are corporations at getting protections passed by Congress? Consider the corporate wrongdoing in the news for the past several weeks - British Petroleum’s catastrophic fouling of the Gulf of Mexico. After the Exxon Valdez mess in Alaska, Congress responded to corporate concerns by capping the amount of economic damages oil companies would have to pay out for oil spills. Our current federal law says off shore oil producers like BP do not have to pay out more than $75 million in economic damages for oil spills, no matter the actual amount of damages caused to fishermen, tourism businesses and other businesses in the Gulf, which will be multiple billions of dollars.

Now, some Democratic members of Congress are trying to raise that cap, retroactively, to $10 billion. On the other side, there is the Republican response, cap damages to the profits earned by the poor oil company for the past year. The problem with damage caps is that they are an arbitrary amount that purposely prohibits a determination of the actual damages caused by a future event. We know $75 million is too low, even BP says it will voluntarily pay damages above that amount. So why is Congress discussing any cap amount, rather than just repealing the cap? What is so wrong with holding a BP accountable and responsible for the actual amount of damages it causes? An arbitrary cap on damages is just another way of saying that a giant corporation is entitled to evade responsibility, and that the taxpayer and injured individuals and businesses harmed should foot the bill for the actual damages caused. Or is it that giant corporations, like giant investment firms and banks are just too big to fail?

Our civil justice system is, and has been, a vehicle for affecting change, enhancing safety and holding wrongdoers accountable. But, can a corporation really be held accountable if Congress preemptively caps the damages they must pay at some arbitrary level? When corporate apologists make pleas for “tort reform,” I hope that fiascoes from the likes of BP, Toyota, Wall Street, and Massey Energy will make our representatives think twice and reject passing another corporate bailout that shields corporate profits at the expense of their constituents’ safety and well-being. Caps and other corporate tort bailouts have failed, let’s restore the ability of our civil justice system to what our founders envisioned - juries in our communities determining responsibility, and the amount of damages.

This is Al Smith for the Montana Trial Lawyers Association, and please, if you haven't already done so, get out and vote. 


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Liberal Ninth Circuit?  (April 13, 2010)


It was a pleasant surprise to see in this morning’s paper that Judge Sydney Thomas is being considered by President Obama to replace the retiring Justice Stevens on the United States Supreme Court. A native Montanan, Judge Thomas is on the Ninth Circuit Court of Appeals, and is based out of an office in Billings.

Judge Thomas is a judge who has an outstanding legal intellect, is fair and impartial, is civil to and respectful of those in court before him, and he adheres to the rule of law. He is the type of judge who both sides to a case respect, a respect well earned by his legal analysis and writing, and by his gracious treatment of those that appear before him.

Since Judge Thomas sits on the Ninth Circuit, I was not surprised by one of the comments in the article - that “The 9th Circuit is widely perceived as liberal.” A lawyer identified as a conservative Republican and former law partner of Judge Thomas, felt it was necessary to make clear that the Ninth’s liberal label didn’t apply to Judge Thomas.

At least the article said ‘perceived as liberal,’ I’m willing to bet, however, that as the nominating process goes on the ‘perceived’ modifier will be dropped. And, we will certainly read and hear from the TV and radio talking heads the basis for the liberal label – that the Ninth is the federal circuit court most reversed by the Supreme Court. The ‘most reversed’ circuit statement will be made time and time again. There’s just one problem - the Ninth Circuit is not the most reversed circuit, and never has been in the past twenty years.

In 2008, the last year I have full records for, there were six federal circuit courts of appeal that were reversed 100% of the time by the Supreme Court - and the Ninth was not one of them, in fact it was true to its name and was the 9th most reversed circuit. 2008 was not an anomaly, over the past decade the Ninth has ranked as the 9th, 8th, 7th, 6th and 4th most reversed circuit, but never the most reversed.

The problem with the ‘liberal’ perception, that then becomes unchallenged ‘fact’ in our talking head news era, is that liberal and conservative are not really very apt or useful labels for discussing the judiciary. Virtually all the discussion of recent Supreme Court nominations - whether it was Roberts, Alito or Sotomayor - has been about social litmus tests, such as liberal, conservative, abortion, and “judicial activism.”

What was lost in the debate is that some nominees had a record of supporting ever more expanding corporate power over our lives. Either by limiting how much our elected officials can regulate corporate actions, or by limiting or eliminating the ability of individual citizens to hold corporations accountable and responsible for the harms they cause. It is no surprise that Justices Roberts and Alito voted in the Citizens United case to limit the peoples right to regulate corporate behavior and to give corporations almost unfettered “free speech” rights in campaigns.


The discussion of a liberal or conservative label has become more pointed in the debate over judicial nominees. Over the past few decades, those labeled as political conservatives have tried to co-opt accountability and responsibility, touting them as solely politically conservative values. However, accountability and responsibility are values without a political leaning, being neither liberal nor conservative, especially in the courts.

Accountability and responsibility are socially conservative values, conservative values that should be supported by both political liberals and political conservatives, and by our courts. Over the years, however, political conservatives have only selectively supported the conservative values of accountability and responsibility when it comes to the civil justice system.

Political conservatives are philosophically dedicated to individual freedom, limited government, and the protection of individual rights. The justice system is the embodiment of the ideals of individual rights and personal freedom.

Of all the institutions of government, only one - the judicial system - is dedicated to the individual. In court, every person is not only the equal of their neighbor, but also the equal of the largest corporation, and even the government itself. The role of the courts - and the lawyers who are absolutely necessary for their proper function - is simply to protect our legal rights - including the rights of liberals, conservatives, Republicans, Democrats, consumers and businesses.

There is a cost to protecting our individual rights. That cost is making sure that the legal rights of each of our fellow citizens is also protected, without compromise, without exception. When we start compromising the legal rights of our "less worthy" neighbors, there may be no end until finally our own rights are swept away as well.

The protection of individual rights, by assuring that accountability and responsibility can be obtained in the justice system, is a conservative value that we can all support: the public, businesses, trial lawyers, the judiciary, and politicians. I hope that politicians, whether they are labelled as political conservatives or liberals, will keep in mind that the judiciary’s job is to assure accountability and responsibility, and that they will focus on that discussion with judicial nominees.

If Judge Thomas is nominated by the President, let’s hope the false ‘liberal Ninth Circuit’ label is not the center of the confirmation discussion. It would be a pleasure to hear instead a discussion of the role of the courts in assuring accountability and responsibility such that in our courts every person is not only the equal of their neighbor, but also the equal of the largest corporation, and even the government itself.


This is Al Smith for the Montana Trial Lawyers Association.

 

 

 

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