The American Justice Partnership is an amazing coalition of organizations working on legal / tort reform at the state level. Dan Pero is the President, and he’s been doing a great job for the last couple of years. Today, the Partnership announced a new blog, which Pero is authoring. I’ve checked it out, and it looks pretty good. It’s definitely a resource for anyone who is interested in legal reform.
You can check it out at AmericanCourthouse.org.
On a personal note, I’m amused and happy to see Dan join the blogosphere. I worked for Dan a couple of years back at the Sterling Corporation. I can say that Dan is one of the smartest and most knowledgeable folks I’ve ever worked for, but Dan was not exactly known for his technical prowess. So his arrival in the blogosphere is yet another testament to just how friendly the medium can be.
Welcome, Dan. I look forward to reading your contributions in the months to come.
This morning in the Washington Post, George Will turns his attention to the question of compensation for federal judges.
Will points to this report by the Chief Justice, which was issued by tradition on New Years Day, but “lost in the cacophony of political news.”
In his report, Chief Justice Roberts eloquently argues that federal judges are woefully underpaid. Pointing out that federal judges have been denied “the
same cost-of-living pay adjustments that other federal employees have received since 1989,” Roberts voices his support for a bill in Congress to address that sorry state of affairs. Then he delivers his coup-de-grace:
This salary restoration legislation is vital now that the denial of annual increases over the years has left federal trial judges—the backbone of our system of justice—earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located.
I do not need to rehearse the compelling arguments in favor of this legislation. They have already been made by distinguished jurists, lawyers, and economists in congressional hearings, letters, and editorials—and seconded by a broad spectrum of commercial, governmental, and public interest organizations that appear as litigants before the courts. I simply ask once again for a moment’s reflection on how America would look in the absence of a skilled and independent Judiciary. Consider the critical role of our courts in preserving individual liberty, promoting commerce, protecting property, and ensuring that every person who appears in an American court can expect fair and impartial justice. The cost of this long overdue legislation—less than .004% of the annual federal budget—is miniscule in comparison to what is at stake.
To understand the truly horrifying disparity between compensation for private attorneys and federal judges, one only need read a few posts from David Lat’s “Nationwide Pay Raise Watch” at the indispensable Above the Law.
Will points out the danger: “The cost of not [addressing the pay disparity] will be a decrease in the quality of an increasingly important judiciary — and a change in its perspective. Fifty years ago, about 65 percent of the federal judiciary came from the private sector — from the practicing bar — and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it.”
As a matter of simple common sense, we all have an interest in ensuring our legal system is the best it can be. That means populating the bench with the brightest legal minds. But between low salaries and the meat grinder-like confirmation process, more than a few of the best lawyers make a habit of quietly turning down nominations to the federal bench.
That’s a reality that should disturb us all, and Congress first and foremost. Here’s hoping that the legislative branch can get its act together in the next month or two and make some progress on judicial compensation. That would be a good first step.
Cross posted at Confirm Them.
There’s an interesting story in the New York Times today about a study of how campaign contributions affected judicial rulings in Louisiana. The study asserts that judges are biased toward their contributors.
I don’t know whether the study is accurate or not, but at the end, who cares.
Judges shouldn’t be in the position to take contributions in the first place. They shouldn’t be elected.
Elected judges just invites problems. Judges should have one master: the law. Judges cannot and should not be accountable to voters. Making them so fairly raises the question of their motives and bias in their rulings. Did they hand down an extra long sentence so they could include in their re-election mail? Uphold a dicey product liability verdict because they were afraid of a backlash from voters sympathetic to the plaintiffs?
Justice can’t be for sale. And it shouldn’t subject to the whims of politics. That’s why federal judges are appointed for life. States and localities ought to adopt a similar approach.
Jim’s post last week articulating 11 ideas that, he hoped, could attract support from 90 percent or more of conservatives and / or Republicans, was amazing. It was well considered and well presented. It’s taken me a week to respond only because I aspired — fruitlessly I suspect — to offer a response of equal thoughtfulness.
In this post, I try to respond to Jim’s offering as well as the thoughts of some of our commenters. (By the way, I would remiss if I didn’t thank the raft of folks who graced us with their thoughts on insights. I very much hope that you’ll continue to visit On Tap and contribute to our dialogue.)
Responding to Jim
First, broadly, I really think Jim is onto something. It’s impossible to build or rebuild a movement without ideas, and in particular, a set of ideas that bring us together. The Democrats have illustrated this rather well over the last fifteen years. It was only when they united behind their hatred for President Bush that they ultimately prevailed.
It seems to me that the ideas must accomplish two objectives. First, they must genuinely further the conservative philosophy. Second, they must be winners at the polls. In other words, we’re looking for ideas that bring us together while equipping us with a message that will attract voters’ support.
Finally, a history lesson. Jim’s work was based on the idea of the Contract with America. It’s worth recalling that the Contract included a handful of big, bold core principles with a wealth of detailed policy proposals. But it’s significance in the 1994 elections is almost always overstated. We should use it for a model only insofar as it accomplished the goals that I’ve set forth.
WIth that in mind, let me address Jim’s ideas in order:
During the summer of 2005, I had the honor of being a Capitol Hill hanger-on during now-Chief Justice John Roberts’ Senate confirmation hearings.
With a group of experience communications professionals, I watched in amazement as Roberts gave his opening statement and then answered hours of questions without a single note or, indeed, piece of paper on the table before him. His testimony instantly became a legendary example of intellectual and rhetorical brilliance, and his confirmation swiftly became a foregone conclusion.
A few months later, I watched from a greater distance but with similar interest as now-Justice Alito managed nearly to match Roberts’ brilliance in both style and substance.
But in between, those of us who followed the judicial confirmation battles closely knew that there was a very real possibility that President Bush would nominate his Attorney General and long-time friend, Alberto Gonzales, to the Supreme Court seat that Alito eventually filled.
Both the Roberts and Alito hearings took place in the same large hearing room in the Dirksen Senate Office Building – the same room, in fact where Attorney General Gonzales appeared yesterday to testify about his “decision” to dismiss eight United States Attorneys from various corners of the country.
Gonzales’ appearance demonstrated many things. But among the most interesting is the extent to which it revealed how totally unsuited and ill-equipped Gonzales would be for the spotlight of Supreme Court confirmation hearings. From both an intellectual and stylistic standpoint, Gonzales gets an “F”. And comparing him to Roberts or Alito just isn’t fair.
Indeed, along with many other things, Gonzales testimony yesterday illustrated just how laughable the notion of his nomination to the Supreme Court really was. It also revealed how thoroughly ill-prepared Gonzales would have been for the intellectual rigour of the Court.
Thank goodness Gonzales never had the chance to demonstrate his shortcomings in a Supreme Court confirmation hearing.
Jim: Yeah, Alberto Gonzales represents one of the most depressing moments for those of us who wanted to see this administration succeed. He just seems in over his head; the “I didn’t figure out why I was firing these guys until after I fired them” defense sounds like a Saturday Night Live sketch.
Another somewhat disturbing aspect of all this - a few weeks ago I was speaking before a group of Republicans in South Carolina; the National Review editorial calling for Gonzales to step down was mentioned, and I said I agreed; it would be best for the Department of Justice and the country if AGAG moved on to something else in his life. The conversation grew a bit more heated, as several members of the audience adamantly insisted that the president has the right to fire any U.S. Attorney he wants for whatever reason he wants and has no obligation to disclose the reason to the public at large. I disagreed, and said that while I don’t have to like the reason, the president ought to at least give a reason for a firing. Several audience members concluded I was behaving as a media elite; I said they ought to think of me as a member of the public - and the president ought to give at least the most rudamentory reasons for personnel changes among public servants.
Another member of the audience insisted that this was nothing wrong, “it was the usual political patronage.” Am I nuts for thinking I don’t want too much political patronage in the positions of U.S. Attorneys? I’m sure the replacements were fine folks, but I tend to be a small-c conservative in this sense, that if somebody’s doing a good job in a position - particularly one as important as prosecutions and law enforcement - then don’t change things.
And one more observation - most of these changes occurred after the 2006 elections. If the White House staff didn’t realize that the Democratic Congress was going to be hunting for scalps, and that every move had to be scrutinized carefully to see how it could be used as a political weapon by the other side… then they don’t deserve to be running the White House.
That’s the name of a new report just released by the Pacific Research Institute that puts a firm cost on America’s broken tort system. Check out these highlights from the report:
- The $865 billion annual cost of America’s tort system is equivalent to the total yearly sales of the entire U.S. restaurant industry.
- More than 51,000 U.S. jobs have been lost due to asbestos-related bankruptcies alone. Employees at these bankrupted companies have lost $559 million in pension benefits.
- Lawsuits against American corporations generate an annual loss of $684 billion in shareholder value. Who are American shareholders? Not just Bill Gates and Warren Buffet. 50% of all US shareholders are ordinary individuals.
- If you assume U.S. costs should be in line with other industrialized countries, the authors project that America wastes $589 billion per year on excessive social tort costs, equivalent to the total annual output of Illinois.
- The practice of “defensive medicine” by litigation-fearing physicians increases American health care costs by $124 billion per year and adds 3.4 million Americans to the rolls of the uninsured.
If that don’t make your head spin, nothing will.
Read the whole thing.
HT: The American Justice Partnership.
Governor Romney just stopped in front of my spot on blogger row. He answered lots of questions. Including one I asked about judges. His answer was exactly what you’d expect, but it was nice to get it on record. “You have to have people who are willing to follow the law… Who don’t believe in substituting cocktail party values for constitunal law.” He said he would nominate judges at all levels in the vein of Justices Alito, Scalia, and Thomas and Chiefr Justice Roberts. “You need people who will follow the law rather than legislating from the bench,” Romoney concluded.
He took questions on other topics, too. His answer on the 2nd Amendment will likely set Cam’s head a-twirlling. “I support the second amendment, but i also support an assault weapons ban.” He then argued that his position was the same as President Bush’s. Hmmmm….
His theme was clear, and he repeated it often. “I want to change Washington. I want government to be simpler, smarter and smaller.”
I’m not sold. But it was nice to have a chance to meet him.
UPDATE: Over at RedState, my friend Erick Erickson points out that earlier today, Mayor Guiliani passed on a visit to blog row. That’s disappointing, and certainly a plus for the Governor.
There’s no question that Mayor Guiliani is still learning his way when it comes to being a Presidential candidate, and he may not yet feel comfortable standing and taking detailed questions from thoughtul questionners like James Joyner. (It’s also possible that his advisors don’t view him as ready.) Either way, I hope he gets that comfort level soon. He could have scored big points today, so from that standpoint, it’s a missed opportunitiy.
I’m not wild about any of the Republican candidates who have thus far thrown their hat into the 2008 Presidential ring. But of the ones that are out there, the one that comes the closest to getting me excited is Rudy Giuliani.
Long-time readers will also know that I care deeply about the Supreme Court. In addition to writing over at Confirm Them — less these days than in the past — I had the privilege of playing a small part in efforts to support Chief Justice Roberts’s confirmation.
Put those two interests together and an e-mail from Patrick Ruffini the other day caught my attention. (Patrick works as a consultant for the Mayor’s campaign.)
“Mayor Giuliani on Judges” was the subject line. The substance was from a Giuliani speech to the South Carolina Republican Party’s Executive Committee:
On the Federal judiciary I would want judges who are strict constructionists because I am. I’m a lawyer. I’ve argued cases in the Supreme Court. I’ve argued cases in the Court of Appeals in different parts of the country. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution. Otherwise you end up, when judges invent the constitution, with your liberties being hurt. Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one. And that’s part of our freedom and when that’s taken away from you that’s terrible. President Bush has the great model because I think as the President he did appointed some really good ones and both of them are former colleagues of mine - Chief Justice Roberts and Justice Alito. Justice Scalia is a former colleague of mine. Somebody that … I think Chief Justice Roberts is a great chief justice and he’s young and he can have a long career and that’s probably the reason the President and Vice President chose him. I think those are the kinds of justices I would appoint – Scalia, Alito and Roberts. If you can find anybody as good as that, you are very, very fortunate.
Amen, Mr. Mayor. Glad you’re in the right place.
I look forward to hearing from the other candidates on this issue. And, as far as me and a lot of other conservatives are concerned, they speak out on this issue quickly enough.
UPDATE: Captain Ed beat me by a week and adds a few editorial reflections that are worth contemplating.
Jim: Here’s the fun question that may louse up John McCain’s presidential dreams: What potential Supreme Court justice would uphold McCain-Feingold but overturn Roe v. Wade?
It’s not impossible to find a judge that would find dramatic restrictions on your right to use your money to spread a political message before an election to be constitutional AND simultaneously not see some eminating penumbra that establishes a Constitutional right to an abortion… but it seems difficult.
Anyway, as for Rudy… the great Noemie Emery writes a fascinating profile of the Big Three — McCain, Romney, and Giuliani. Knowing that some people aren’t as big a fan of them as I am, I’d love to hear some reaction.
The possibility (probability?) of one of the Big Three winning the Republican nomination pleases me a bit, in the sense that I think during the Bush era, conservatism has become too associated with Southern-ism or rural-ism. It’s not that I don’t like the South or rural areas (although I’m an urbanite, and oppose Confedera-philia); it’s that those cultural markers started becoming stand-ins for actual conservative ideas. George Allen going on and on about his cowboy boots and chewing tobacco grated on me, because there’s nothing inherently conservative about what you wear or what you chew. (Hear that, Crunchy Cons?)
A very young Jonah Goldberg had this nailed way back in 1996:
So now that conservatives have overrun the capital, the animal spirits within the movement have set out to create their own “conservative culture.” In The Weekly Standard one writer actually called for a “conservative bohemia,” complete with a dress code of button-down shirts and fedoras, and the imperative that we all smoke, surprise, cigars.
It is another thing to tell a new generation of conservatives, male and female, that picking up fads like cigar smoking makes you a conservative. Conservatism is supposed to be more mature than that. Conservatism must continue to argue for the conviction that some truths cannot be deconstructed, don’t simply come in and out of style, and are more substantial than a puff of smoke.
Now - I would love it if fedoras and button-down shirts and cigars remained the definition of hip, along with martinis, whiskey and bourbon, microbrews, thick steaks, poker games, and stockings and garters (er, on other people, specifically, women people). But those are matters of taste, not politics. If you’re a liberal and you like those things, great, we ought to hang out. Particularly if you’re a woman person who looks good in stockings and garters.
Boy, did I meander off topic. Anyway, to sum up — the GOP may nominate a non-Southern, non-traditional conservative as its nominee in 2008, and I’m just fine with that.
Cam: Am I the only one who’d like this blog to focus more on stockings and garters and less on Giuliani? 
I’m shocked that I beat Marshall to this news:
Harriet Miers, President Bush’s failed Supreme Court nominee, has submitted her resignation as White House counsel, the White House announced Thursday.
White House press secretary Tony Snow said the president reluctantly accepted her resignation, which takes effect Jan. 31. He said a search for a successor is under way.
Maybe Marshall’s still doing the Happy Dance and can’t get to a computer.
Jim: While her short-lived bid for the Supreme Court was a terrible idea, I’m kind of surprised that Harriet Miers stirs such lingering enmity in right of center hearts.
Then again, maybe I ought not to be — although the ire ought to be focused on the President himself, not on Ms. Miers. The rumor that she constitutes one of the “mother hens” who has looked after Bush over his career, the perception that Bush always puts personal connection and loyalty over all other qualities, the sense that Bush tunes out any input that doesn’t come from “his people”… In the end, the fault of the Miers fiasco lies in the Oval Office. We know where the buck stops.
My friends at the Center for Individual Freedom made their first ever endorsement today. They’re backing Mike Pence for Minority Leader.
This is an interesting move, and one that CFIF did not take lightly. It also speaks to the sentiment among grassroots conservatives that it’s time for new leadership in the House. I suspect we’ll see other organizations following shortly.