A Progressive on the Prairie

The uproar over the US Chamber of Commerce ads attacking Tom Daschle for his position on tort reform coincided with a germinating thought. Tort reform seems indicative of the conservative attitudes toward not only individual rights but also the legal system and the concept of justice.

Advocates of tort reform generally refer to frivolous lawsuits and runaway verdicts. I ask the rabid anti-Daschle bloggers blathering about tort reform and Daschle's ties to "trial lawyers" (now roughly equivalent to "liberal" in the Repugnican pantheon of evildoers) to document the frivolous lawsuits cluttering courts in South Dakota. Recall that when Newsweek ran a cover story last December on "lawsuit hell," much of its "evidence" was wrong.

What about runaway verdicts? In April, the federal Bureau of Justice Statistics examined civil trial cases and verdicts (PDF file) in 2001 in the 75 largest counties. Among other things, it revealed

• Plaintiffs won 55% of the trials.
  
  
• Juries decided 75% of all trials and 93% of those in tort cases.
  
  
• The median amount awarded to plaintiffs for all trials was $33,000, an almost 90 percent decrease from nine years earlier. There were higher median awards in contract cases ($45,000) than in tort cases ($27,000).
  
  
• Punitive damages were awarded in 6% of the trials the plaintiff won. The median punitive damage award was $50,000. (And the report itself notes these verdicts predate State Farm Mutual Automobile Insurance Company v. Campbell, where the U.S. Supreme Court suggested that punitive damage awards more than four times the amount of compensatory damages come close to the line of constitutional impropriety.)
  
  
• Plaintiffs prevailed in only about a quarter of medical malpractice trials. Of those who prevailed, however, half received verdicts of at least $422,000.

These statistics -- which do not include reduction or modification of damage awards on appeal -- don't seem to indicate a runaway legal system. Moreover, the attack on Daschle was based on a federal bill to limit recovery in medical malpractice actions. It never mentions that South Dakota already caps damages in such cases. Contrary to their standard cry that the feds shouldn't be involved in local affairs, conservatives want federal law to dictate what happens in South Dakota courtrooms.

How does all this relate to individual rights? In advocating tort reform, the conservatives are concerned about the effect on business. For example, the Bush-Cheney website says that "legal reform" is necesary because "the threat of frivolous lawsuits puts a damper on job creation, investment and expansion." Yet anyone in the plaintiffs' bar will quickly portray this as corporate America vs. individuals because individuals usually are the plaintiffs in tort lawsuits. As noted, the BJS study showed 97 percent of tort plaintiffs are individuals.

To me there is a more concerning message. For there to be a "runaway verdict," there must be a "verdict." For there to be a "verdict," there must be a trial. Juries decide the vast, vast majority of tort cases that go to trial. Juries are local men and women given the power to sit in judgment of legal disputes, be they between individuals, businesses, or individuals and businesses. Thus, conservatives are saying you can't trust juries made up of your neighbors. They want Congress to restrain this unique cornerstone of our democracy, again advocating a position contrary to assertions that Washington needs to quit interfering in local affairs. How much more local can you get than a jury? How much closer can you get to reflecting community values?

This is simply indicative of conservatives' views of the concept of justice. Look at conservative support of the Patriot Act and its impact on civil liberties. Look at how "due process" or "right to counsel" was blithely disregarded in the enemy combatants cases (the American Bar Association has an excellent analysis as it relates to US citizens in a PDF document here). Look at what we have created at Guantanamo and its relationship to the rule of law. The predeliction to elevate government power over individual freedom is reflected in their stance on policies that directly impact individual decision-making. Thus, for example, when it comes to abortion or marriage, the right of an individual must be sacrificed to their "thou shalt not" view of morality.

Let me point out that I am not a member of the plaintiffs' bar or their organizations. To the contrary, the litigation work I do is exclusively for defendants. Anyone in the legal profession will admit the civil justice system is not perfect. Yet the same is true of the legislative and executive branches and almost anything else in life. I also think any civil trial lawyer worth his or her salt -- whether on the plaintiff or defense side -- will tell you that attacking access to the courts and the jury system is not a solution. Yet that is one aspect of a conservative brand of justice.
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• Dahlia Lithwick's excellent column in last Sunday's NY Times regarding "re-activist judges."
  
  
• David Ignatius' column on the true dangers of politicizing terror.
  
  
• Not only does the Iraqi Olympic soccer team object to being used in Bush campaign ads, some of them say if they were not in Athens they would join the resistance. (Via Antiwar.com).
  
  
• The NY Times has an interesting article on how the federal material witness law has been used since 9/11.
  
  
• Nick Coleman's tremendous column on the Bush rally in St. Paul.
  

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U.S. Rep. Doug Bereuter (R.-Neb.) wrote his constituents to say the invasion of Iraq was a mistake. Why does this GOP congressman have the guts to do this? Apparently because he's not seeking re-election.

You at least have to give Bereuter, vice chair of the House Intelligence Committee and senior member of the House International Relations Committee, credit for being intellectually honest enough to admit we were wrong. That's something we're not even seeing from the Democratic side.

I previously lambasted Stephanie Herseth for saying that even knowing what we know now we should have invaded Iraq. Kerry has said basically the same thing, although trying to spin a nuance (he would have voted to give Bush authority to invade but it was handled wrong). And Tom Daschle is reported to have said after the Senate Intelligence Committee report was released that he still would have voted to authorize the war knowing what we know now. Why are Democrats so afraid to state a simple, truthful fact: knowing what we know now, it was a mistake to invade Iraq.

The Iraq debacle was sold on the basis pre-emptive action was needed to avoid a looming, dire threat (WMD, ties to al Qaeda, etc.). None proved true. As a result, the only current rationalization is regime change. If that is the standard for pre-emptive war, then we better plan on years of continuous warfare.

Politicians probably fear that admitting we were wrong also says close to 1,000 American lives have been wasted and that is no way to "support our troops." I would wager, though, that a significant majority of Americans would agree that, in hindsight, the Iraq war was a mistake. In fact, undecided or swing voters might favorably view a candidate who said: "Knowing what we know now, we made a mistake. But we can't undo that action now. As a result, our focus needs to be on dealing with the situation we have created to produce the best result for Iraq at the lowest cost in American lives." Instead, Kerry, Herseth and too many others seem determined to blindly insist we were right despite all evidence to the contrary.

If you're interested, the text of Bereuter's letter is available here. Maybe Kerry, Daschle, Herseth, Thune and Diedrich should read it and take it to heart.
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Via Cursor, I see there's a new Pew Research Center study on foreign policy attitudes. The entire survey is worth looking at but it is revealing on the effects of the politicization of terror.

"Currently, four-in-ten Americans (41%) cite international and defense issues such as the Iraq war and terrorism as the most important problems facing the country, while just a quarter of the public (26%) offers economic concerns. And both Pew Research Center and Gallup surveys show that, if anything, the public's focus on foreign and security issues is increasing as the campaign progresses." (Emphasis added). The survey also revealed: "In the July 8-18 survey, conducted prior to the Democratic convention and the government's announcement of elevated terrorism alert, a 54% majority approve of Bush's performance in handling terrorist threats. This rose slightly to 58% in the August 5-10 survey, conducted after the government's Code Orange announcement."

So, increasing the terror level produced a four point increase in Bush's poll numbers. But it isn't all good news for Bush. Here's a few more tidbits from the survey:

Two-thirds (67%) of Americans ­surveyed believe the United States is less respected by other countries than in the past.

"A narrow majority of Americans (53%) continue to believe it was the 'right decision' to use military force in Iraq, but this figure is down from the 74% who held that view during the height of major combat last year. And more Americans now disapprove (52%) than approve (43%) of the way Bush is handling the situation in Iraq."

"The erosion in public support for the war in Iraq over the past year is best illustrated by a sharp increase in the percentage of Americans who question whether the war has helped the war on terrorism. Just 45% now say it has 'helped,' while 44% say it has 'hurt.' . . . . As recently as February of this year, 62% said the war in Iraq had helped the war on terror, and only 28% said it had hurt."

"Fully 72% of the public says following moral principles should be a top priority in the way the U.S. conducts foreign policy."

Fifty-six percent say it is not necessary for the average person to sacrifice some personal freedoms to fight terrorism effectively. This represents a decline that is uniform across most demographic groups. "Only among Republicans and people in upper-income brackets does a majority continue to say it is necessary to give up civil liberties." (Emphasis added).

At the same time, though, more Americans (49%) are concerned the government has not gone far enough to protect the country from terrorism than say the government has excessively restricted civil liberties in the war on terror (29%).

Partisan views play a significant role in the results. Yet even considering that, here's the core question: If people view Bush as having done a poor job and making us less safe with Iraq and foreign policy, want moral principles to guide foreign policy and support civil liberties, why is re-defeating Bush so difficult?

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Just back from a quick vacation squeezed (as usual) between the end of summer activities and the beginning of school-related activities. As a result, just starting to catch up on news, blogs, etc. A few items:

• I have two e-mail addresses with a particular ISP -- one is private (known only to certain friends and family) and the other "public" (used for listservs, public groups, on-line shopping, etc., altho not for this blog). Upon my return, there were 400+ items to my "public" address; all but 12 were spam. In contrast, my private in-box had about a dozen items, all legit. CANSPAM and state law (look at subsection 13) are worthless but I'm not sure there are m/any workable solutions.
  
  
• Ben Hanten reports the ad Blogger placed here during at least part of Tuesday read: "Support the RNC Today. We need your help to advance the Bush/Republican agenda." Maybe Blogger needs to take a closer look at the alogrithm it uses to generate the ads.
  
  
• Ben is the driving force behind a new SD blog, Daily Caucus: South Dakota Politics, Law & Culture, premiering this week. I have agreed to contribute occasionally.
  
  
• Our trip included both the Mall of America (required with three teenage girls) and the Metrodome (required when oldest daughter's boyfriend is a baseball fanatic and the Yankees are in town). I found it interesting in light of the recent terror drum banging that there was little to no security at either. For example, no one asked to look in the large bag my wife brought to the baseball game. I am far from an advocate of having armed security and screening devices everywhere. Still, security is tighter at Stampede hockey games and I would think the MOA might be considered a prime target for terrorists.
  
  
• Nick Coleman had an excellent column in Sunday's Strib on the stifling of dissent. One thing he didn't mention about the effort to restrain dissent is that those of us who dissented before Iraq were right.

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