SCOTUS Nominee: Must Bush Choose Between Business or the Religious Right?

Washington Post columnist Jeffrey Birnbaum makes an interesting observation that may bear on who Bush nominates to the Supreme Court. Bush has indicated that he favors justices in the mold of Scalia and Thomas, which will delight the religious right. However, Scalia and Thomas have not been especially friendly to business, specifically in the area of limiting jury awards in state court decisions. When SCOTUS ruled as excessive a 145 million dollar judgment against State Farm Mutual Car Insurance (PDF), Scalia and Thomas dissented, arguing the federal government had no constitutional right to restrict the size of awards in state court decisions. If Bush nominates like-minded jurists, he may well sow the seeds that will overturn any awards caps that may be enacted in his desire for tort reform. In this regard, business does not want a strict constructionist, and favors strong federal consumer regulations that will pre-empt a range of conflicting state regulations that make doing business inconvenient and expensive.

Can Bush’s nominee appeal to both corporate interests and those of the religious right, or must it necessarily split his core constituency along their conflicting goals? Which will Bush end up supporting?

Personally, I think he will nominate a business-friendly nominee who will support awards caps. His ties to business interests are long and enduring, and deep down he knows that the religious right is just a useful lapdog that can be mobilized with shallow appeals to hot-button issues to win elections. But billions of dollars are hanging in the balance of the tort reform debate, and I am confident that if push comes to shove, money will always trump religion when Bush makes his decision.

First off, that State Farm decision is ludicrous, at least insofar as it attempts to craft a rule for excessive punitive damages going forward.

Second, the easiest solution would be, of course, to find someone who is both business-friendly and sympathetic to social conservativism. On the face of it, that shouldn’t be too difficult; it’s not a perverse combination. I suspect, though, that Bush is bridling a bit against the pressure being exerted by the religious right – especially as it bears on his friend, Al Gonzales – and he may be less inclined to feel the need to satisfy them. It’s my impression, from having read a few ostensibly nonpartisan books about Bush (most notably Ambling into History, which is both sympathetic and extremely telling), that Bush isn’t particularly pious. That is, he’s Christian in that road-to-Damascus kinda way, but given his druthers he’d personally favor pro-business over pro-religious right, to the extent the two coonflict.

But isn’t strict constructionism fundamentally incompatible with awards caps? How can Bush say he wants a strict constructionist, yet support a federal cap on awards in state courts?

Award caps are not the only pro-business measure by which to judge a candidate. A judge who strikes down award state court caps as per Scalia and Thomas would still be entirely acceptable to big business if he strikes down other allegedly odious federal regulatory measures.

So if Bush sticks with his promise to appoint strict constructionists, is tort reform dead?

  1. There’s no such thing as a strict constructionist. Rinse and repeat.

  2. Are you asking if judicial tort reform would be dead, or if tort reform in general would be? Because Congress (or state legislatures, as relevant) can always pass a law limiting jury awards, the text of which – if it is sufficiently clear – courts would be duty-bound to uphold unless there’s a colorable constitutional argument to the contrary that I’m not seeing. As for judicial tort reform, see #1 – it depends on what you mean by strict constructionist. Justice A says that there’s no mention of federal judicial power over jury awards, state or federal, in the constitutional text, and thus they cannot be limited by the judiciary. Justice B says that at the time of the Framers, it was beyond dispute that punitive damages greater than a certain amount were unjust and prohibited. These conclusions lead to opposite results; which one is strictly construing the constitution?

State laws would presumably upheld by Scalomas-type justices, while any Congressional legislation would not. Whether you consider them strict constructionists is not really the issue I guess, since Bush says he prefers what-ever-it-is they are, and they don’t think federal awards caps are constitutional.

Justice A, because it is an objective determination; read the constitution, and rule accordingly. Justice B is not, because determining the prevailing legal opinion at the time of the framers is too subjective, and less binding than the wording of the Constitution…

I’m unclear what an “objective determination” is in the context of constitutional interpretation. The Eighth Amendment prohibits cruel and unusual punishment. How is this to be interpreted except by a subjective determination of the meaning of the words cruel, unusual, and punishment? The Fifth Amendment prohibits the government from taking someone’s property for public use without just compensation. Does this mean that the government can take someone’s property for private use without just compensation? And how do we know what “property” is, anyway? Textualism is no more objective than originalism, although clearly neither will yield a concrete answer one hundred percent of the time.

Congressional legislation directed at federal courts would certainly be upheld by Scalia and Thomas – or, at least, it wouldn’t be struck down under the rationale of State Farm, which dealt with the exercise of federal power against state courts.

Do you have a cite indicating that Bush prefers justices like Scalia and Thomas because of their stance on jury awards, and not for any of a myriad other reasons?

Agreed. Which would be a small victory for the proponents of tort reform, as plaintiffs would merely file in state courts exclusively.

Why would I need to show this? Bush likes Scalia and Thomas because they are more in tune with his definition of strict constructionism in general. Scalia and Thomas believe the federal government has no authority to interfere in awards made by state courts. Scalia especially has expressed the opinion that judges should not legislate from the bench. I don’t think it is much of a stretch to envision that nominees from the mold of Scalia and Thomas would also oppose federal awards caps.

I don’t think it’s a stretch, but I don’t think it’s a foregone conclusion either. The most important thing I took away from my foray into constitutional theory and interpretation in law school (and now in my time as a judge’s law clerk) is that it’s eminently possible for two people to have essentially identical jurisprudential philosophies – whether textualism, originalism, legal process, or what have you – and yet arrive at different results when applying their interpretation to the facts of a given case. Law is not mechanistic, not in the close cases or the hard cases. Anyway, Scalia and Thomas themselves have very different judicial philosophies – the former is textualist, a la Justice A, and the latter is originalist, a la Justice B. They tend to find harmony more often in the results than in the interpretative process.

Bush is a lame duck president. He really doesn’t have to appeal to anyone. And as the top dog Republican I’m not sure he wants the SC to rule in favor of the religious right. In my estimation the worst thing that could happen for the Pubs is if the SC overturned Roe v. Wade. If that happened, Pubs in Congress would have to risk losing voter support of economic conservatives who are pro-choice. Lots of economically conservative women wouldn’t be pleased that the Congress was voting to limit their reproductive freedom.

Related tidbit: What Americans want in O’Connor court vacancy

Of course, when there’s a right thing to do and a wrong thing to do, I can count on the GWB Administration to pick the cluser-fuck’d stupid thing to do almost every time.

Might that mean Bush could appoint Sonia Sotomayor, get both the female and HIspanic boxes checked off, and use that as a means to defuse the RR’s anger over a moderate appointee?

Why would that defuse the religious right’s anger? :slight_smile: Are you saying it would lead them to believe that next time around (when Rehnquist retires, say), Bush would be free to choose whosoever he damn well wants, up to and including Roy Moore?