Return of the Status Quo . . . Almost

Last month, the Senate returned five of the President's judicial nominations to the White House after Democrats refused to give what is normally pro forma consent to hold over the nominations during the Senate's August recess. Today, the President re-nominated the five: Terry Boyle (4th Circuit), Jim Haynes (4th Circuit), William Myers (9th Circuit), Randy Smith (9th Circuit), and Mike Wallace (5th Circuit). Unfortunately, this does not restore the status quo for Boyle, Myers, and Smith. They were awaiting confirmation votes on the Senate floor, following approval by the Judiciary Committee. But now they have to go back to the committee, where Democrats may call for new hearings or otherwise obstruct the nominations.

Alito Speaks About the Confirmation Battle

For the first time Justice Alito and his wife are interviewed about the confirmation process.

Hat tip: Bench Memos

Does Judge Anna Diggs Taylor Have a Conflict of Interest?

Yesterday, Judicial Watch put out this press release on a potential conflict of interest in the ACLU v. NSA wiretapping case. Though she seems not to have crossed any bright-line rule, she does seem to need to be reminded of Canon 5 of the Code of Conduct for U.S. Judges which states, in part:

"B. Civic and Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:
(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.
(2) A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of the judicial office for that purpose, but the judge may be listed as an officer, director, or trustee of such an organization. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.
(3) A judge should not give investment advice to such an organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions."

The press release would be less interesting if it wasn't for this controversy during the University of Michigan affirmative action cases. From Thomas Bray's June, 2002 WSJ op-ed:

"Earlier, Chief Judge Anna Diggs Taylor of the federal District Court in Detroit tried to take the suit against the law school away from Judge Bernard Freedman, who had been assigned it through a blind draw--and who was suspected of being skeptical about affirmative action--and consolidate it with a similar suit against the university's undergraduate admissions practice, which Judge Patrick Duggan was hearing. The chief judge dropped that effort was dropped after the judge hearing the law school complaint went public with a blistering opinion objecting to what he termed 'the highly irregular' effort of the chief judge. Judge Duggan ruled in favor of the undergraduate racial preferences, while Judge Freedman ruled against the law school preferences."

"Rank, cynical, infuriating, mindless hypocrisy."

That's how one Bench Memos reader sums up this awful editorial today in the New York Times. Several bloggers have already commented on it - here's Matthew Franck's take and Andrew Hyman has a few words of comment as well.

Personally, my favorite line from the editorial is this one: "In any case, the Senate has no business rifling through materials the A.B.A. does not want to provide." Yeah, just who do these U.S. Senators think they are? Michael Greco?

Here is my earlier post reviewing some of the commentary on the Wallace nomination.

Strapped for Cash? Start an Environmentalist Group and Start Suing Profitable Firms

Today in the Wall Street Journal Professor Bruce Benson reports on how environmental “bounty hunters” like Natural Resources Defense Council and Earthjustice Legal Defense Fund threaten private firms with lawsuits over often petty paperwork violations in order to extract cash for their “supplemental environmental projects.” Usually, companies decide to settle and end the harassment rather than go through an expensive litigation process.

Benson finds ample evidence most of the lawsuits are more about greenbacks than green policies:

“An indication that self-interest, not environmental stewardship, propels these suits comes from comparing citizen suits filed under two different laws. Between 1995 and 2002, 1,371 citizen suits were filed under the under the Clean Water Act but only 143 under the Clean Air Act. Do environmental groups such as the Natural Resources Defense Council and the Earthjustice Legal Defense Fund think that water violations are more serious than air pollution? Probably not. They do know, however, that the Clean Water Act mandates record-keeping that makes suing under it easy and allows large fines that make settlements lucrative; the Clean Air Act does not.

Another sign that the goals are financial, not environmental, is that the Clean Water Act suits are disproportionately targeted at private firms, not municipal governments. Yet municipal governments generate much more water pollution.”

You can read Professor Benson’s more comprehensive report here at the website of the Property and Environmental Research Center.

Lawyers Don't Kill People, Lawsuits Do

Below Curt Levey posted on last week's John Stossel article concerning the negative effects trial lawyers have on the health care industry. This week Stossel has another excellent article on RealClearPolitics.com that provides concrete examples of how not only frivolous lawsuits, but also the mere threat of frivolous lawsuits has kept important products, medicines and vaccines that would allow millions to live healthier, safer lives off the market.

Here are some examples:

• "Monsanto once developed a substitute for asbestos -- a new fire-resistant form of insulation that might save thousands of lives. But Monsanto decided not to sell it for fear of liability. Richard F. Mahoney, the CEO at the time, said, 'There may well have been a safe, effective asbestos replacement on the market, and now there isn't.'"
• "Even when new vaccines are discovered, drug companies are sometimes afraid to sell them. The FDA has approved a vaccine against Lyme disease. Want some? Forget about it. No company wants to take the risk."
• "Union Carbide has invented a small portable kidney dialysis machine. It would make life much easier for people with kidney disease, but Union Carbide won't sell it. With legal sharks circling, the risk of expensive lawsuits outweighs the possible profit."

And the trial lawyers wonder why they're so unpopular.

New Press Release from the Third Branch Conference

For Immediate Release
August 3, 2006

For More Information
Call Manuel Miranda
202-262-7789

THE LEAST ACCOMPLISHED CONGRESS ON JUDGES

Conservative Coalition Launches August Radio Campaign on Judges

Washington, D.C. - The Third Branch Conference, a coalition of grasstop leaders nationwide working to improve the federal courts, today expressed disappointment with the Senate GOP leadership for failing to move the confirmations of Terrence Boyle, William Myers, and Jim Haynes.

"On judges, this is the least accomplished Congress in three decades," said Manuel Miranda, TBC chairman and former nominations counsel to Majority Leader Bill Frist. "The delays on Boyle, Myers, and Haynes are unprincipled and hamfisted. They are putting their majority at risk by not showing Bush voters what remains at stake," he added.

"We will now take this message to the radio through August," Miranda announced. "The problem lies with the Senate, not the White House."

Today with 50 confirmations, the 109th Congress has confirmed the fewest judges than any Congress since 1973-1974, in the shadow of the Watergate presidency. The last time the Senate confirmed two Supreme Court nominations (1993-1994, 103rd), they also confirmed 127 other Clinton-appointed judges. The last time that a Congress (1985-1986, 99th) confirmed two Supreme Court justices in the first two years of a second term president, with the same party controlling the WH and the Senate, they also confirmed 129 other Reagan-appointed judges.

According to John Lott of AEI, the President's circuit court confirmation rate remains the lowest of any president in recent times. Today it is 73.1 %. By comparison Reagan's was 89.4%, also with two years of an opposing party controlling the Senate. The length of confirmation delays is even more telling. Under the GOP's current leadership, the length of confirmation delays in days is:


Bush II 382
Clinton 231
Bush I 92
Reagan 68
Carter 70

This year three Bush circuit nominees have been waiting in the Senate for years under silent, dishonest filibusters, one other had to withdraw in March because of Senate inaction, bringing the number of actively defeated Bush circuit nominations to three (and arguably more). So three defeats (Estrada, Kuhl and Saad), and three silent filibusters (Boyle, Myers, and Haynes).

Imagine All the Life-Saving Products

John Stossel has a good piece in RealClearPolitics today that discusses the harms that suit-happy trial lawyers wreak upon the health care industry (doctors, hospitals, pharmaceutical companies, and medical device manufacturers). We're all aware of the financial harms, such as expensive litigation, rising health and malpractice insurance premiums, and expensive tests performed in the service of defensive medicine. In contrast, the less tangible damage inflicted by the trial bar often goes unnoticed. But not by Stossel. He notes that, as a result of trial lawyers' assault on the health care industry,

• doctors become secretive, talk less openly with patients, and refuse to acknowledge mistakes;
  
• medical device manufacturers stick to older, proven technologies, rather than pursuing technological advances; and
  
• new, potentially life-saving drugs never leave the lab.
  

Stossel concludes "We can't even begin to imagine the life-saving products that might have existed – if innovators didn't live in a climate of fear." I would add that the trial bar is grateful that we can't imagine the intangible costs of their greed. If we could, we'd never stand for it.

Wallace: The WSJ, the ABA, the Chairman and Ed Whelan

A lot has been written over the last week or so on the Wallace nomination, so I thought it might be a good idea to provide some links so folks can review the material for themselves.

First, The Wall Street Journal calls the ABA's report on Wallace a "hit job."

ABA President Michael Greco feebly reponds with a weak letter.

Ed Whelan over at Bench Memos has spent much of the last week slicing and dicing the ABA's testimony. Matthew Franck adds his two cents.

Specter is apparently not at all happy with the games the ABA is playing with the Wallace nomination.

Here's the Megyn Kendall reporting about it on Fox:

SHOW: FOX SPECIAL REPORT WITH BRIT HUME 6:00 PM EST
August 1, 2006 Tuesday

BYLINE: Jim Angle, Mike Tobin, Bret Baier, Jonathan Hunt, James Rosen, Steve Harrigan, Megyn Kendall, Alisyn Camerota

BODY: JIM ANGLE, GUEST HOST: Here in Washington, another battle has erupted in the long- running war over President Bush's judicial nominees. An attorney whom President Bush has nominated for a federal appeals court has received an unusually unfavorable rating from the American Bar Association, and that rating is getting an unfavorable review of its own. Correspondent Megyn Kendall has the story.(BEGIN VIDEOTAPE)

MEGYN KENDALL, FOX NEWS CORRESPONDENT (voice-over): Ever heard of Mike Wallace? No, not that one, this one. Well, you're about to.The latest fight brewing over judicial nominees will be about this man, a former clerk to the late Chief Justice Rehnquist, now a successful attorney in Mississippi. He has been nominated to sit on the New Orleans- based Fifth Circuit Court of Appeals. The latest roadblock to confirmation, an American Bar Association report voting Wallace unanimously not qualified, the ABA's lowest rating. The report, which relies heavily on anonymous sources, all but calls Wallace a racist, saying he "lacks tolerance," is "insensitive," "high-handed" and is "hostile" to minority rights.The rating drew immediate fire from conservatives who have long accused the ABA of having a liberal bias. Wallace's former boss, Senator Trent Lott, called the rating outrageous. The op-ed page of "The Wall Street Journal" called it political payback, noting that the ABA's president, Michael Greco, and Stephen Tober, who chairs the 15-member standing committee that voted on Wallace, harshly criticized Wallace years ago when Wallace chaired the Legal Services Corporation, a left-leaning group Wallace sought to reform. The ABA says neither Greco nor Tober actually voted on Wallace, but Senate Judiciary Committee Chairman Arlen Specter says that doesn't mean they didn't influence the vote.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: The president and the chairman on the standing committee have considerable influence in the committee process. And with those people in command and in charge, there has to be both the fact of impartiality and the appearance.

KENDALL: On Tuesday, Specter circulated a letter to the Judiciary Committee, which was meeting on other nominations, urging it to reject the report, an unprecedented move. Specter will also urge the committee to request a new ABA report from a panel of unbiased lawyers. Specter also wants the ABA to identify all of its sources, to name the people attacking Wallace, something the chairman says he'll now push for in every ABA report.

SPECTER: I do not think that they ought to be anonymous if we are to base a Senate judgment on them. It does not give the nominee a chance to defend himself.

(END VIDEOTAPE)

KENDALL: The Judiciary Committee will convene on Thursday to discuss these and other concerns, and in the meantime, Wallace's confirmation hearings have been pushed back to September, which, given the upcoming midterm elections, could make his confirmation impossible this year.

Jim.ANGLE: Megyn, thank you.