As NRO’s Greg Pollowitz pointed out on Tuesday, in 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.
When it comes to nominees to the federal bench below the Supreme Court level, President Obama has offered up some doozies. Those who spend much time at NRO’s Bench Memos blog should be aware of my law-school classmate Goodwin Liu, whom the president has tapped for the Ninth Circuit Court of Appeals. Liu is a dyed-in-the-wool lefty who saw fit to attack the nominations of Chief Justice Roberts and Justice Alito, in bombastic and disingenuous fashion, on wholly ideological grounds. The Judiciary Committee is scheduled to consider his nomination this morning.
President Obama nominated Butler last year, but the Senate returned Butler’s nomination without action after it passed through the Judiciary Committee on a party-line vote; the president resubmitted the nomination on January 20 of this year. A former public defender and municipal-court judge, Butler campaigned for the Wisconsin Supreme Court in a nonpartisan 2000 election, but the voters decisively rebuffed him. Butler subsequently won election to a judgeship on a county circuit court before Wisconsin’s Democratic governor, Jim Doyle, appointed him to fill a state-supreme-court vacancy in 2004.
Once on the state’s high court, Butler quickly amassed one of the most activist records in the country. In 2005, Butler authored a split opinion for the court in Thomas v. Mallet, which permitted lawsuits against the manufacturers of paint that may have contained lead, even absent proof that any individual manufacturer’s paint had been used by the person or persons filing the lawsuit. This expanded Wisconsin law to embrace the theory of “market-share liability,” a doctrine accepted in California regarding litigation against manufacturers of the anti-morning-sickness drug diethylstilbestrol but overwhelmingly rejected in other jurisdictions and contexts thereafter.
Scarcely a week after writing Thomas, Butler joined a 4–3 opinion in Ferdon v. Wisconsin Patients Compensation Fund, which overturned the state’s medical-malpractice liability reform. Notwithstanding contrary findings by the state legislature — and hosts of contrary empirical studies — the Ferdon decision held that medical-malpractice damage caps bore no rational relationship to doctors’ malpractice-insurance rates. Fed up with such activist behavior, the Wisconsin electorate in 2008 voted Butler off the court — the first time in over 40 years that the moderate Badger State citizenry had failed to retain an incumbent justice.
If Obama’s decision to nominate Butler to the federal bench is bad, his choice to nominate McConnell is laughable (or it would be, were it not so deadly serious). The nomination, which occurred on March 10, 2010, is scheduled for Judicial Committee hearings today. In a cohort hardly known for its judicial temperament — the personal-injury bar — McConnell is among the worst of the worst.
In 2003, the Manhattan Institute published our first Trial Lawyers, Inc. series of satirically styled “annual reports” of the plaintiffs’ bar. We dubbed McConnell’s law partner Ron Motley the “founder and chairman” of the litigation industry, owing largely to his facility in negotiating the 1998 multibillion-dollar tobacco settlement on behalf of several state governments. Among the $30 billion flowing to plaintiffs’ lawyers from that shenanigan, McConnell himself is pulling in over $3 million per year of the states’ settlement money — and he will continue to do so for roughly the next two decades.
The tobacco deal grew out of an unholy alliance between trial lawyers (who wanted money) and state attorneys general (who wanted headlines, and campaign contributions from their newly deep-pocketed friends). Hardly content to retire on his hardly earned tobacco windfall, about a decade ago, McConnell sought to replicate the tobacco-lawsuit business model in his native Rhode Island, where he emerged as a chief fundraiser for the Democratic party and its ambitious attorney general, Sheldon Whitehouse, now a U.S. senator. In 1999, Whitehouse hired McConnell to file a suit on behalf of the state against lead-paint manufacturers — not unlike the lawsuits later rubber-stamped by Butler in Wisconsin — and Motley’s South Carolina–based firm soon emerged as Rhode Island’s largest contributor to the Democratic party, giving over $500,000 in the 2000 federal election cycle.
McConnell parlayed Whitehouse’s generosity into a staggering $3 billion jury award against paint companies, though the Rhode Island supreme court later unanimously reversed the verdict. McConnell fired off a scathing editorial lambasting the court’s ruling.
Given the way McConnell helped build Sheldon Whitehouse’s career, it’s hardly surprising that the Rhode Island senator forwarded McConnell’s name to the president for a plum federal judgeship. But if the Senate approves this personal-injury crusader to the bench, expect Rhode Island — which has only three federal judges — to emerge as a magnet court for “creative” lawsuits from around the country.
So let’s hope that in addition to giving Elena Kagan’s nomination the attention it deserves, the Senate doesn’t lose sight of nominees such as Liu, Butler, and McConnell. I’m sure the Democrats regret not looking more carefully at Justice Scalia 24 years ago, and if Republicans rubber-stamp these dangerous appointments to the federal bench, they’re stuck with them for life.
— James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute.