The Next Justice
February 7, 2009, 12:48 pm
Filed under: Uncategorized | Tags: , , ,

ScotusWith the sad recent news of Justice Ginsburg’s illness, a lot of people have been offering advice to President Obama on how to select a new justice.  Although I share Tom Goldstein’s view that rumors of Justice Ginsburg’s retirement are thankfully exagerated, now seems as good a time as any to offer my thoughts on how the President should select judges and justices.

For much of the 1980s and 1990s, battles over judicial policy were fought on a familiar, largely cultural battlefield.  Roe v. Wade was, of course, the rallying point for both conservatives and progressives, but other, long simmering battles over racial justice, feminism, federal vs. state power and religion in the public square were the defining points of the debate.  President Clinton focused largely on these issues, to the extent he considered ideology at all, in selecting his judges and justices.  And lest I leave any doubt as to my allegiances, I am glad he did.  Protecting Roe, ending discrimination and preserving the wall between church and state are all essential aspects of American liberty, and we sacrifice them at the nation’s peril.

In recent years, however, two new battlefields have grown in importance.  The first is executive power, and the civil liberties concerns that come with it.  This battlefield encompasses not only headline issues such as Gitmo and torture, but also more basic questions about just how much leeway we are willing to give cops and prosecutors.  For decades (at least a century at the federal level), the primary way courts protected our Fourth Amendment right to be secure from unreasonable searches and seizures is something called the “exclusionary rule.”  This is the rule Jack McCoy always gripes about on Law and Order; it says that if a cop violates the Constitution when they gather evidence, that evidence cannot be used against the suspect.

Chief Justice Rehnquist spent most of his career picking away at this rule, and John Roberts & Co. just took a massive bite out of it.  Justices Ginsburg and Breyer—President Clinton’s two appointments—have dissented from many of the Court’s most sweeping assaults on the exclusionary rule, however, and in my experience most of Clinton’s appointees to the lower courts have charted a fairly moderate course on civil liberties issues.

Where President Clinton seriously dropped the ball, however, is corporate accountability.

Guest blogging over at ACS, I wrote about a few of the victims of the Supreme Court’s deregulatory agenda:

On New Year’s Eve in 2007, Bridget Robb awoke from the first of 31 electrical shocks that began near her heart and raced throughout her body.  The shocks, which in the thirty-four year-old mother’s words “felt as if a cannon was being repeatedly shot at my chest,” continued as she raced to the phone and waited for paramedics to arrive.  They continued as she pleaded to a 911 operator “Am I dying?  I’m young. I don’t wanna die,” and they continued as her six year-old daughter crouched nearby, hugging her cat and crying out “Mommy’s dying.”  The shocks, she later learned, were caused by a defective medical device implanted to treat her chronic heart condition.

In February 2003, James Lind went to the pharmacy to refill a prescription he relied on to keep his Multiple Sclerosis at bay, only to learn that his insurance company would no longer pay for the expensive drug.  Although the insurer relented only days later, those few days were enough to cause debilitating and irreversible complications.  Lind became disabled, lost his ability to work, and now survives on disability payments.  A man who once had the dignity of work and the ability to pay taxes now must rely on welfare. . . .

Bridget Robb, [and] James Lind . . . are all the victims of a tragic and avoidable injury.  Yet they are also all victims of a Supreme Court which for decades has placed its own deregulatory agenda ahead of the law and the public interest.  Earlier this month, a federal judge in Minnesota told Robb, and thousands like her who were implanted with a device that literally electrocuted them from the inside, that nothing could be done to hold the manufacturer of that device accountable.  The reason: a recent Supreme Court decision granting almost total lawsuit immunity to the makers of dangerous medical devices. . . .  Lind is the victim of a series of Supreme Court decisions immunizing employer-provided health plans from accountability[.]

Now, to be clear, President Clinton’s justices are a whole hell of a lot better then the members of the Court’s conservative bloc.  Bridget Robb and James Lind were both tossed out of court because of opinions written by ultra-conservative Justice Antonin Scalia.  Justice Breyer, however, joined Scalia’s opinion in Riegel v. Medtronic, which held that the manufacturers of dangerous medical devices have almost total immunity from suits holding them accountable when defective devices injure or kill a person like Bridget Robb.  Similarly, in Geier v. American Honda Motor Co., Breyer wrote a 5-4 opinion holding that automakers have total immunity from state suits claiming that the carmakers should have installed airbags in their vehicles, despite the fact that Congress passed a law which expressly told the Court that such state law claims should be allowed.

All of this is to say that issues like Roe and Gitmo are very important, but issues of corporate accountability are equally important.  I want the government to stay the hell away from my bedroom, but I also want to be able to rely on my insurance company if I get sick, and I want to be able to hold it accountable if it illegally denies me coverage of a medically-necessary treatment.

A lot of people like Bridget Robb and James Lind voted for President Obama because they are desperate for change from the deregulatory values of George W. Bush.  I hope the President remembers this when it comes time to start naming judges.


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[…] language—whether artfully or inartfully drafted— to undermine Congressional intent.  I written a lot in the past about decisions that interpreted a law which Congress intended to protect employee benefits to give […]

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