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Conservatives are going nuts over President Obama's wish to appoint a Supreme Court justice who would have “empathy” for people standing before the courts as plaintiffs or defendants, which is like saying you would like to see a kind person on the bench.
I think I know why they are so alarmed, and it is not because they believe Obama's jurist would be tolerant of women who want abortions or gay people or even because she or he might have a serious attraction to the Bill of Rights.
They fear that he is talking about nominating someone who would not be a shill for corporations. That actually would be the most radical thing the president could do. Shocking, in fact. Presidents have rarely looked in that direction since Dwight Eisenhower, who put Earl Warren and William J. Brennan Jr. on the Supreme Court, and Lyndon B. Johnson, who nominated Thurgood Marshall and Abe Fortas. Let's make an exception for Gerald Ford, who gave us John Paul Stevens, an antitrust lawyer from Chicago.
The confirmation battle, if the past 30 years are a guide, will be over abortion and originalism, but those are mere distractions. The bread-and-butter work of the Supreme Court is business law, and that is its practice now to the near exclusion of everything else, particularly since President George W. Bush's appointment of John G. Roberts Jr. as chief justice and the elevation of Judge Samuel A. Alito Jr. to the Supreme Court.
The Supreme Court accepts only about 1 percent of the appeals from the federal and state appellate courts, and the Roberts court picks cases that would establish business priorities and expand corporate power. In a high percentage of the cases that the court accepts the United States Chamber of Commerce takes a stand. In the 2007 term the chamber was involved in 15 cases and it won all but two of them. The share of appeals of vital interest to business increases every year. The old court led by William Rehnquist loved corporations, too, but preferred cases where basic constitutional rights could be undermined like school prayer and criminal justice.
Before going on the federal bench, Roberts represented the Chamber of Commerce, the National Association of Manufacturers and an amalgam of corporate clients. In 15 years on federal courts, Alito favored corporations almost without exception over investors, workers, customers and government regulators. “This is a guy who is not going to go off the reservation,” a chamber spokesman said of Alito's appointment. Alito votes consistently “in a way that the business community would prefer,” he said.
Robin S. Conrad, the head of the Chamber of Commerce's litigation division, said the chamber had decided in the 1990s to work on the judicial branch at the state and federal levels where business could get favorable changes that it could not get from the legislative and executive branches, principally shutting the courthouse door to employees, investors, customers and regulators who want to make claims against corporations. Business spent a lot of money on state judge races and enjoyed many successes at the state supreme court and federal appellate court levels.
There is a name for Conrad's goal. It's judicial activism. The courts do what the lawmaking and administrative branches will not.
It is timely to mention a notable exception to the corporate successes, the Arkansas Supreme Court, which last week unanimously struck down two sections of the Arkansas “tort reform” law that made it harder for people harmed by corporate negligence to get a remedy in court. An empathetic Republican federal judge, appointed by George W. Bush, asked the state Supreme Court for guidance on a damage suit, and it said the legislature and governor had usurped the responsibilities of the courts in saying who could access the justice system and upon what terms.
But the picture is much different with the U.S. Supremes, which in a swelling volume of cases has shut off remedies for corporate negligence and misdeeds or sharply reduced damages as in the Exxon Valdez and Philip Morris cases. They ruled that national bank subsidiaries that make mortgage loans and repackage them into profitable securities cannot be regulated by state governments although more such regulation might have averted the financial meltdown, nor can they be sued by investors, making them immune to antitrust liability.
People who want to challenge the tax blackmail that corporations use to pry tax breaks and other concessions out of states where they might move can't do it, the Supreme Court said. The list goes on.
Some of the corporate cases reflect the conservatives' narrow 5-4 majority, which won't be changed by Obama's appointment. But most of them are unanimous or nearly so. The national chamber's litigation chief likes to praise the tough pro-business decisions of Justices David Souter, who is retiring, and Bill Clinton's appointees, Ruth Bader Ginsberg and Stephen G. Breyer, who are troubled with making corporations too accountable for their behavior.
Supreme Court justices are chosen naturally from the ranks of the rich and powerful so that should be no surprise. Empathy may mean a different choice.