# SCOTUS Nominee: Must Bush Choose Between Business or the Religious Right? **URL:** \ **Category:** Great Debates\ **Created:** [July 15, 2005, 2:55pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653 "2005-07-15T14:55:51Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 15, 2005, 2:55pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/1 "2005-07-15T14:55:51Z")
[Washington Post columnist Jeffrey Birnbaum makes an interesting observation](http://marketplace.publicradio.org/shows/2005/07/14/PM200507145.html) 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)](http://www.supremecourtus.gov/opinions/02pdf/01-1289.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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 15, 2005, 3:35pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/2 "2005-07-15T15:35:32Z")
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. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 15, 2005, 3:40pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/3 "2005-07-15T15:40:49Z")
> [@Gadarene](#): > > Second, the easiest solution would be, of course, to find someone who is both business-friendly _and_ sympathetic to social conservativism. 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? ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [July 15, 2005, 3:49pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/4 "2005-07-15T15:49:16Z")
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. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 15, 2005, 3:55pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/5 "2005-07-15T15:55:26Z")
So if Bush sticks with his promise to appoint strict constructionists, is tort reform dead? ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 15, 2005, 4:17pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/6 "2005-07-15T16:17:55Z")
> [@](#): > > 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? ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 15, 2005, 4:29pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/7 "2005-07-15T16:29:26Z")
> [@Gadarene](#): > > Because Congress (or state legislatures, as relevant) can always pass a law limiting jury awards… 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 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? 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… ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 15, 2005, 4:42pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/8 "2005-07-15T16:42:18Z")
> [@](#): > > 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. > [@](#): > > State laws would presumably upheld by Scalomas-type justices, while any Congressional legislation would not. 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. > [@](#): > > 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. 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? ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [July 15, 2005, 4:53pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/9 "2005-07-15T16:53:08Z")
> [@Gadarene](#): > > Congressional legislation directed at federal courts would _certainly_ be upheld by Scalia and Thomas Agreed. Which would be a small victory for the proponents of tort reform, as plaintiffs would merely file in state courts exclusively. > [@](#): > > 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? 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. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 15, 2005, 5:09pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/10 "2005-07-15T17:09:49Z")
> [@](#): > > 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. ---
**Author:** ![rfgdxm](https://avatars.discourse-cdn.com/v4/letter/r/c0e974/32.png) [@rfgdxm](https://boards.straightdope.com/u/rfgdxm)\ **Post date:** [July 15, 2005, 6:21pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/11 "2005-07-15T18:21:17Z")
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. ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [July 15, 2005, 7:18pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/12 "2005-07-15T19:18:09Z")
Related tidbit: [What Americans want in O’Connor court vacancy](http://www.usatoday.com/news/nation/2005-07-13-court-cover_x.htm) > [@](#): > > The latest USA TODAY/CNN/Gallup Poll, taken July 7-10, showed overwhelming support for putting another woman on the court. Three of four favored appointing a woman to replace Sandra Day O’Connor, the first woman to serve on the high court. > > Two-thirds of those surveyed liked the idea of naming the first Hispanic to the Supreme Court, too. > > **And an equal number didn’t want Roe v. Wade, the decision recognizing abortion rights, overturned by the court.** 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. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 15, 2005, 7:31pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/13 "2005-07-15T19:31:06Z")
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? ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 15, 2005, 7:36pm UTC](https://boards.straightdope.com/t/scotus-nominee-must-bush-choose-between-business-or-the-religious-right/312653/14 "2005-07-15T19:36:26Z")
> [@](#): > > 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? 🙂 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?