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Class Action Hypocrisy

President Bush is once again promoting his proposal to reform class action law suits. The Washington Times reports:

President Bush yesterday called top lawmakers to the White House and urged them to move quickly on legislation to curb class-action lawsuits as part of a three-pronged effort to reduce litigation that costs Americans billions of dollars each year.

"Class-action lawsuits have become a problem in the United States. The judicial system is not fair. It is unbalanced, it is tilted," Mr. Bush said after meeting with a dozen Republicans and Democrats from the House and Senate.

"And members around this table understand that, and members around this table are willing to set aside their political party to do what is right for worker and business owner alike."

One has to admire the President’s ability to include the “willing to set aside their political party” remark while maintaining a straight face. The President and the GOP have done nothing but play politics with the class action issue for the last year. The proposal would have been law long ago had the President and the GOP been willing to set aside political considerations.

The measure passed the House last year and was taken up in the Senate. It is said that it takes 60 votes to get anything done in the Senate. The class action bill had 63 Senate votes including at least a dozen Democrats. Still, it did not become law. Why not?

Brad DeLong linked to a Reuters story (link now broken) with the answer last July:

The latest attempt at legal reform had bipartisan support. But some supporters rebelled when Senate Majority Leader Bill Frist tried to limit debate -- and amendments -- to matters related to the class action bill.... Frist said earlier that if the class action bill failed to clear the procedural motion, it "finishes any consideration of the bill this year ... We're out of time."...

Democrats charged Republicans were all too happy to move on to... an amendment to the Constitution prohibiting same-sex marriage, and a proposal prohibiting flag-burning. "We're going to shove class action reform off the table, maybe permanently, in order to consider two matters that have no chance of being adopted whatsoever," charged Sen. Chris Dodd, a Connecticut Democrat...

The politics of the class action bill were straightforward. First, the GOP wanted to retain the issue for the 2004 election more than they wanted a bill passed, especially when John Edwards was a likely Vice Presidential candidate.

Secondly, they wanted to use Senate time to promote symbolic cultural issues such as flag burning and gay marriage more than they wanted the reforms to be law. Third, they wanted to deny credit for the passage of the bill to Democrats.

Delong also links to a National Journal article (link also now broken):

Sen. Thomas Carper, D-Del., told business executives today that the Senate's GOP majority was to blame for the collapse of a compromise bill to overhaul the rules for class action lawsuits. He said election-year maneuvering spelled the end of a bill he co-sponsored and was supported by business interests. "You all are too smart to be played like this," Carper said during a legal summit at the U.S. Chamber of Commerce.

Carper said he was "bewildered" that GOP leaders failed to move the bill through the Senate, even though 63 senators pledged their support for the legislation. "Any time you've got that kind of majority ... and you can't bet a bill passed, boy, that's just bizarre," Carper said.

Deliberations on the bill fell apart in July, after Majority Leader Frist tried to bar senators from offering unrelated amendments on all issues except the minimum wage. Frist needed at least 60 votes to block a filibuster by invoking cloture on his procedural motion. But Carper and most other Democratic co-sponsors of the bill joined with their Democratic colleagues and a few Republicans to reject cloture on a 44-43 vote…

Carper said he was stunned by Frist's attempt to limit nongermane amendments and "fill the amendment tree" by allowing an unlimited number of germane riders. "When he did that, I literally ran -- I sprinted from my office in Hart -- to the Capitol, and I said, 'What are you doing?'" Carper recalled. "[Senate Judiciary Chairman] Orrin Hatch was standing right next to him and said, 'Democrats didn't want to do this [bill] anyway.' I almost came unglued. I said, 'I want this bill a lot more than you do, buddy.'"

Carper said a Republican colleague, whom he did not name, later told him privately that some Senate Republicans did not want "guys like [Carper], who worked out this compromise, getting credit for what they'd done." Carper said that senator also told him the expectation that Sen. John Edwards, D-N.C., -- a trial lawyer -- would become the Democratic vice presidential nominee factored into the bill's demise. He recalled his colleague telling him, "If this issue is resolved, and if asbestos [legislation] is resolved, frankly it's harder to pan [Edwards] and the Democrats for being in the pockets of class action attorneys." Carper said he will continue pushing for class action bill. He predicted that several retiring Senate Democrats who had opposed the bill will be replaced with "centrist" Democrats who would be "more open minded with respect
to these issues."

Carper, of course, was wrong. The Chamber of Commerce, having been played for fools by the GOP in 2004, is not “too smart to be played like that.” They are back for another helping this year:

The U.S. Chamber Institute for Legal Reform (ILR) today welcomed President George W. Bush's renewed calls for passage of the Class Action Fairness Act, a bill designed to curb class action lawsuit abuse.

"President Bush has long been an ardent supporter of class action reform and we're pleased to see him throw the full weight of his office behind this vital piece of legislation," said Stanton D. Anderson, executive vice president and chief legal officer of the U.S. Chamber of Commerce.

Yes, of course, President Bush has long been an ardent supporter of the measure unless he sees any small political advantage to another course.

The Washington Times notes:

Mr. Bush said he was optimistic that the Republican-controlled Congress will pass the legislation promptly.

With 63 votes last time, and a more Republican Senate this year, I suspect that Mr. Bush is correct. With no election pending, no reason to keep the issue alive, and no need to stir up social conservatives, there is no reason for Mr. Bush to prevent theSenate from passing the bill.

What about the substance of the proposal? Last year’s bill is here. The major provision of the bill creates Federal Court jurisdiction over class actions and permits defendants to remove any class action from state court to Federal Court. That has the practical efect of funnelling all or almost all class action litigation into Federal Court.

I do not have any major objection to that provision but I have to wonder whether anyone will call the GOP on its hypocrisy.

For decades, we have heard from conservatives that the Federal bench is filled with liberal, activist Judges who ignore the law and the Constitution in order to legislate their personal ideology from the bench. That argument is made over and over again without reference to the facts. As I have previously noted, the Federal bench is not liberal, but, rather, is overwhelmingly populated by conservatives:

Of the nine current members of the Supreme Court, seven were appointed by Republicans. In the last thirty-five years (since 1969) there have been thirteen appointments to the Supreme Court. Republican Presidents have made eleven of those appointments while Democratic Presidents have made two.

At the Circuit Court of Appeals level, the pattern remains the same. Since 1969, Republican Presidents have appointed 211 Judges to the Circuit Courts. Democrats have appointed 122. Since 1969, Republican Presidents have appointed 813 trial Judges to the District Court bench while Democrats have made 508 such appointments.

If the Federal Judiciary is comprised of a bunch of liberal activists, it is the GOP who put them there.

Now that a major constituency of the GOP (big business) seeks to cash in some chips by reducing the chance that they will have to pay big judgments for their wrongs, the GOP obliges by funneling suits away from state judges (who are often elected and thereby responsive to the will of the electorate) and gives power to all of those liberal activists judges that Republican presidents have been appointing over the years.

I do not oppose the proposed reform of class action suits but can we at least put a moratorium on the recitation of the fiction that the Federal bench is a bastion of liberalism? The GOP's eagerness to funnel class actions away from state courts and into Federal Courts confirms that the argument is untrue.

Posted by Dwight Meredith at January 8, 2005 03:06 PM | TrackBack