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.