"I have stated over and over again on this floor that I would . . . object and fight against any filibuster on a judge, whether it is somebody I opposed or supported . . ." -- Senator Leahy, Congressional Record, June 18, 1998

Other Democratic senators have had similar changes in belief: Joe Biden and Robert Byrd, Tom Harkin, Ted Kennedy, Joe Lieberman, Pat Leahy, Chuck Schumer and their erstwhile colleagues Lloyd Bentsen, and Tom Daschle have all vigorously opposed the use of the filibuster against judicial nominations. Mr. Schumer was for voting judicial nominations "up or down" without delay.

 

Mr. Leahy flatly opposed a filibuster against Clarence Thomas's Supreme Court nomination: "The president and the nominee and all Americans deserve an up-or-down vote." Mr. Harkin believed "the filibuster rules are unconstitutional," Mr. Daschle declared that "democracy means majority rule, not minority gridlock," and Mr. Kennedy that "senators who believe in fairness will not let the minority of the Senate deny [the nominee] his vote by the entire Senate."

 

But that was then, when Democrats controlled the Senate. Now, they are a frustrated minority and it is different. Mr. Leahy has voted against cloture to end filibusters 21 out of 26 times; Mr. Kennedy, 18 out of 23. Now all these Senators practice and defend the use of filibusters against judicial nominees.

The Constitution requires a two-thirds vote to override a presidential veto, pass a constitutional amendment, approve treaties or expel a member of Congress. But all it says about judges is that they are appointed by the president with "the Advice and Consent of the Senate." Absent a constitutional requirement for a supermajority, a majority vote is sufficient. The U.S. Supreme Court affirmed that principle in 1892.

"Wilson writes, "[n]o one wants to encourage or permit the use of racial epithets in the workplace." Well, I certainly don't want to encourage it, and I wouldn't permit it in my workplace (if I owned or managed a workplace), but I don't agree that it's wrong for the government to ever "permit" it. First, I can easily see circumstances where the use of racial epithets in the workplace, not directed at a particular party, would be privileged by the First Amendment. Moreover, current federal law requires a hostile environment claimant to prove a "severe and pervasive" climate of hostility. A singular use of a racial epithet by a coworker is almost certainly not sufficient to satisfy that standard (though there is a New Jersey case, decided under more expansive state law, that holds that a single use of racial epithet did create an actionable hostile enviroment.)"

A disinformation campaign has already been launched to depict judges who believe in following the written law as being "activist" conservatives, just like liberal activists.

 

Those who play this game of verbal equivalence can seldom, if ever, come up with concrete examples where conservative judges made rulings that went directly counter to what the written law says or who made rulings for which there is no written law.

"The damage that is done by judicial activism extends beyond the particular policies that happen to catch the fancy of judges. Judicial ad-libbing creates a large area of uncertainty, making the law a trap for honest people and a bonanza for the unscrupulous."

"[w]e are living in a world where words have lost their meaning. This is certainly not a new phenomenon. It seems to be an inevitable artifact of cultural disintegration. Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War; Clarendon and Burke expressed similar concerns about the political transformations of their own time.

 

It is always a disorienting experience for a member of the old guard when the entire understanding of the old world is uprooted. As James Boyd White expresses it: "[I]n this world no one would see what he sees, respond as he responds, speak as he speaks,"1 and living in that world means surrender to the near certainty of central and fundamental changes within the self. "One cannot maintain forever one's language and judgment against the pressures of a world that works in different ways," for we are shaped by the world in which we live.

 

This is a fascinating subject which we do not have time to explore more thoroughly. Suffice it to say that this phenomenon accounts for much of the near hysterical tone of current political discourse.

 

Our problems, however, seem to go even deeper. It is not simply that the same words don't have the same meanings; in our lifetime, words are ceasing to have any meaning. The culture of the word is being extinguished by the culture of the camera. Politicians no longer have positions they have photo-ops. To be or not to be is no longer the question. The question is: how do you feel."

Just as suspected, the alleged "chili finger" at a San Jose Wendy's fast food restaurant was no more than a hoax. While questions regarding the severed digit are still being investigated, there are some questions not being asked, or at least, not in the open.

 

***

 

Tort reform will only get us so far. It is clear we've been in the midst of a societal decline that needs its own reform. We need to get back to a society that values morality and respect.

ANYONE still clinging to the notion that cam paign-finance reformers are interested in "clean government" solely for its own sake should take a look at Illinois — specifically a race for a state Supreme Court seat last year that turned into the most expensive judicial contest in U.S. history.

 

The race was a money magnet — with more than $9 million spent by the time the dust cleared. Why? Because tort lawyers from all over the country go to Illinois' Madison County to file lawsuits against deep-pocketed corporations. If Democrat Gordon Maag won the Supreme Court race, the trial-lawyer gravy train would probably keep on rollin'. If Republican Lloyd Karmeier won (he did), he was expected to start hitting the breaks (he has).

 

***

 

"I think they would like to cut anybody out of the debate who disagrees with their agenda," says Edward Murnane, the president of the Illinois Civil Justice League.

 

To bolster his case, he points to the liberal foundation funding behind the Illinois Campaign Reform Coalition, an umbrella group in the state lobbying for sweeping restrictions on political speech. That funding is detailed in another report just released by his group.

 

It turns out that the eight groups under the umbrella (ICPR, the Sunshine Project, the Citizen Advocacy Center, Protestants for the Common Good, the Better Government Association, Common Cause Illinois, Illinois Public Interest Research Group and the League of Women Voters of Illinois) have received about $3 million in grants from George Soros' Open Society Institute and the Joyce Foundation since 1997.

It's easy to want democracy for the Middle East. But what sort of democracy? Should American foreign policy focus on promoting elections, or on checks and balances? Is the crucial question how power is achieved? Or is it how power is exercised?

"I believe there is an important principle at stake," he said. "When senators filibuster a nominee who has a clear majority support, they are in effect trying to establish a 60-vote requirement for confirmation.

A prominent member of the Senate leadership recently described a Supreme Court justice as "a disgrace." An equally prominent member of the leadership of the House of Representatives on the other side of the political aisle has characterized another justice's approach to adjudication as "incredibly outrageous." These excoriations follow other examples of personalized attacks on members of the judiciary by senior political figures. So it is time to take a deep breath, step back, and inject a little perspective into the recent heated rhetoric about judges and the courts.

 

We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world.

 

***

 

But, absent lawlessness or corruption in the judiciary, which is astonishingly rare in this country, impeaching judges who render decisions we do not like is not the answer. Nor is the wholesale removal of jurisdiction from federal courts over such matters as prayer, abortion, or flag-burning. While Congress certainly has the constitutional power, indeed responsibility, to restrict the jurisdiction of the federal courts to ensure that judges decide only matters that are properly within their constitutional role and expertise, restricting the jurisdiction of courts in response to unpopular decisions is an overreaction that ill-serves the long-term interests of the nation. As much as we deplore incidents of bad judging, we are not necessarily better off with--and may dislike even more--adjudications made by presidents or this year's majority in Congress.

Olson's condemnation of recent personal attacks on judges is entirely sensible.  Harry Reid's several verbal assaults on Clarence Thomas were well beyond the pale and some criticism of the judiciary in the Schiavo affair was also inappropriate.

Olson also properly criticizes the confirmation process as part of the problem.  If the legislature and participating interest groups view judicial confirmation as an opportunity to take scorched earth stands on the political implications of judicial rulings, why shouldn't judges think and act politically.

But Olson doesn't offer much of a solution either.  Telling politicians to get a "grip" on reality is a nice start, but it won't take us very far.

We need a more fundamental change in our understanding of the judiciary and the way in which judges should work.  That new understanding should not only inform Congress in its judicial confirmations, but should also inform judges in their decisions and deportment.

Judges who view their role as policymakers open the door to the politicization of the judiciary.  Judges who view their role as neutral arbitrators of Constitutional principles have a greater claim to independence.

Fighting financial mismanagement and fraud throughout the agencies of the federal government is an urgent mission if we ever hope to rebalance the budget. The Office of Management and Budget recently found that the Medicare program made $21.7 billion in improper payments to doctors, hospitals and insurers in 2004. Medicaid, with its overlapping state and federal roles, also has rampant fraudulent claims. Unfortunately, the government's efforts at combating erroneous payments are pitifully ineffective, thus encouraging more fraud, fueling medical inflation, and ripping off tens of billions of dollars from taxpayers.

At this moment, it seems likely leviathan will continue to lumber along, picking up ballast and momentum, crushing everything in its path. Some things are apparent. Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.

 

But what if anything does this have to do with law? Quite a lot, I think. In America, the national conversation will probably always include rhetoric about the rule of law. I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country's founding.

 

The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document.

 

In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the "constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."

 

Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It's because the framers did draft the Constitution with a surrounding sense of a particular polity in mind, one based on a definite conception of humanity.

 

In fact as Professor Richard Epstein has said, Holmes's contention is "not true of our [ ] [Constitution], which was organized upon very explicit principles of political theory." It could be characterized as a plan for humanity "after the fall."

"The overriding concern liberals say they have about Janice Rogers Brown is the unsubstantiated claim that she is out of the mainstream," notes Project 21 member Donald Scoggins. "If you look at her life and her achievements, she is well within what anyone could rationally consider mainstream. In fact, she stands out as someone who embodies American ideals."

 

Associate Justice Brown is the daughter of an Alabama sharecropper who began her education in a segregated school. Her family later moved to California where she earned a law degree and spent the last 25 years in public service. After serving in lower state courts, she was appointed to the California Supreme Court in 1996. She was nominated to the D.C. Circuit in July of 2003.

 

On the California Supreme Court, Brown wrote more majority opinions than any of her colleagues in 2001 and 2002. She was retained by California voters with 76 percent of the vote. In a letter signed by 18 of her judicial colleagues, she was described as "a superb judge" who is "extremely intelligent, keenly analytical and very hard-working" and a judge "who applies the law without favor, without bias and with an even hand."

Janice Rogers Brown of the California Supreme Court is equally conservative — she once called the New Deal a "socialist revolution." But however inflammatory her remarks outside the courtroom, Brown's legal opinions show a willingness to vote against conservative views, particularly in criminal cases, when justice demands it.

Will the First Amendment bar your lawsuit?

 

Definitely not. Virtually every court that has considered the matter has concluded that racist speech can create a hostile, abusive and discriminatory work environment, and that when it does so, a court can stop it. No court in recent decades has held that the First Amendment gives people the right to use speech to harass fellow workers on racial or religious grounds at work.

 

Just as a court can order a company to take down a "Whites Only" sign outside its employment office, even though this is "speech," so judges have consistently held that other words can constitute unlawful racial discrimination, and that when they do, the courts must step in and call a halt to such discrimination.

 

That is the established view under American law, supported by years of precedent. But it is not the view of Janice Rogers Brown, President Bush's nominee to the D.C. Circuit U.S. Court of Appeals.

 

This would be damning, if only it were true.

Beth Creighton, the lead plaintiff and a Portland civil rights attorney, said she was infuriated to find out she had to pay $1.25 for returning a late movie after Blockbuster launched it's "No More Late Fees" campaign in January.

"There are people out there who are not savvy enough or strong enough -- or crazy enough, I guess -- to take on this issue, and they're being injured by it," Creighton said. "My philosophy is to stand up for the little guy, be it in my professional life or personal life, and that's what I'm going to do."

In the summer of 2002, after months and months of reports of corporate malfeasance and facing a campaign season in which politicians were being associated with Ken Lay, Bernie Ebbers and the like, Congress passed a sweeping reform bill intended to improve corporate governance.

 

The political and corporate worlds, both eager to restore public confidence in their respective institutions, hailed the Sarbanes-Oxley Act as a cure-all.

 

* * *

 

I've learned two important lessons since coming to Congress. First, Congress simply doesn't work well when driven by crisis. Our hasty efforts to improve airport security after 9/11 gave us tens of thousands of new screeners who are now employees of the federal government but has yielded little in terms of improved passenger and baggage screening. . . .

 

Second, when hastily prepared legislation passes by an overwhelming margin, it is often not because it has been thoroughly vetted and has earned a consensus. I would argue that Sarbanes-Oxley, which passed the House of Representatives 423-3, was as much an attempt to politically inoculate Congress as it was an honest effort to improve corporate governance.

 

When I voted against it, I stated that the bill was so hastily crafted and overreaching that it was sure to create unintended consequences that could actually hamper economic growth. Tens of billions of dollars in compliance costs later, this has most certainly been the case.

The time has come for the Senate to reestablish that tradition [of majority vote on judicial nominations], to end these destructive judicial filibusters and to give all judicial nominees the up-or-down vote they deserve

Republican leaders count only two or three GOP senators who will vote against the efforts to end, by a straight majority vote, filibusters on confirmation of judicial nominations.

 

Sens. Olympia Snowe of Maine and Lincoln Chafee of Rhode Island will not support this move, and they are likely to be joined by Sen. John McCain of Arizona. That would mean 52 senators would go along with the parliamentary maneuver attempting to end filibusters on judges. Only 50 are needed.

"They're ahead of the power curve," Sen. John Thune, R-S.D., said of the orchestrated effort by Democrats and groups such as MoveOn.org and People for the American Way. "I think you'll see a greater, stepped-up message on part of the Republicans, to go on offense on this issues."

 

Senate Majority Leader Bill Frist, after vowing last fall to stop Democrats from blocking the most conservative of President Bush's nominees, will appear in a telecast later this month with leaders of social conservative groups.

“I have read the book, and I am impressed. Among other things, you address the transaction costs of litigation (attorney's fees, expenses, etc.), which is the white elephant in the middle of the living room which few people want to discuss."

Your suggestion of a fee shifting procedure whereby the current offer of judgment rule is modified to include attorney's fees, rather than just court costs, has a great deal of merit. I believe it is far superior than some of the alternative ideas that have been tried . . . .  Your proposal has the advantage of conforming judicial procedure, rather than adding another extra-judicial system, and thus deserves serious consideration.”

Senator's Ross' kind words are very much appreciated.  His description of the political effort behind Mississippi's 2003 tort reform legislation is available here. 

Comments from other early reviewers of Out of Balance should be forthcoming soon. 

If you would like to review Out of Balance, please drop me a line at jbw@jonathanbwilson.com. 

"The state's 227 school districts had classroom instruction spending percentages ranging from 35 percent to 83 percent in the 2003-04 school year, while the classroom spending ranged from 54 percent to 60.9 percent in the nine largest districts in Pima County. The statewide spending average was 58.6 percent, according to the state Auditor General's Office. The national average in the 2002 fiscal year was 61.5 percent.

 

Classroom dollars generally include teacher salaries and benefits, instructional supplies and aids, and activities such as field trips. Costs for administration, food services, support services, transportation and building operations and maintenance are excluded.

 

The Republicans said the mandate would make sure state education dollars are used to improve instruction without being diverted for administrators' salaries and other non-classroom costs"

"School districts across the state have been robbing Peter to pay Paul out of necessity. Now they're going to be required to do it by this ballot measure," said John Wright, president of the 30,000-teacher Arizona Education Association. "They're not funding the system. Moving money around in an underfunded system doesn't improve the system."

"is politically delicious because it unites parents, taxpayers and teachers while, he hopes, sowing dissension in the ranks of the teachers unions, which he considers the principal institutional impediment to improving primary and secondary education. . . .

 

Nationally, 61.5 percent of education operational budgets reach the classrooms. Why make a fuss about 3.5 percent? Because it amounts to $13 billion. Only four states (Utah, Tennessee, New York, Maine) spend at least 65 percent of their budgets in classrooms. Fifteen states spend less than 60 percent. The worst jurisdiction -- Washington, D.C., of course -- spends less than 50 percent."

It's been a busy season already for tort reform, as physicians in four states saw their governors recently sign legislation designed to help ease the burden of rising liability premiums.

Perhaps the outpouring of admiration for Pope John Paul II last week will at long last alert those at the helm of my political party — the Democratic Party — to a truth that has yet to sink in despite the whack to the head administered by last year's election: Cultural values count.

 

***

 

Government serves society, a much larger entity. And society, in turn, is structured and animated by a complex interaction of beliefs, values, symbols and socio-economic forces which, taken cumulatively, we describe as culture.

 

***

 

Today's Democratic Party leaders have apparently forgotten, however, that the social programs that came of age during the New Deal had their origins in Judeo-Christian tradition, even more than in secular humanism. Indeed, it might be argued that popes were as influential as politicians in shaping policy.

 

In 1891, Pope Leo XIII (an Italian count, for goodness sake) helped usher in the modern era of social democratic thinking with his encyclical Rerum Novarum, defending the rights of working people to organize themselves into unions and to achieve a living wage.

 

In 1906, a Catholic priest, John Augustine Ryan, took on the modern American industrial system in his pioneering "A Living Wage: Its Ethical and Economic Aspects," followed by "Distributive Justice: The Right and Wrong of Our Present Distribution of Wealth" (1916).

 

In 1931, Pope Pius XI (a librarian, as well as a champion Alpine mountaineer, for goodness sake) extended Ryan's teachings to the entire church in his encyclical Quadragesimo Anno.

 

In 1933, the pope named Ryan a monsignor, and a newly elected Franklin D. Roosevelt (a scion of the Anglo-Dutch Hudson River aristocracy, for goodness sake) turned increasingly to the social philosophy Ryan represented as he fashioned the policies and programs of the New Deal. Indeed, Ryan became popularly known as the Right Reverend New Dealer.

 

***

 

The Democratic Party, in short, made a powerful alliance with the culture of Ordinary America, including its religious values. True, the party's links to segregationist Dixiecrats caused problems — big problems. But it was two Southerners — Martin Luther King Jr. and Lyndon B. Johnson — who struck the most significant hammer blows against the injustice of that dependency.

 

But now the Democratic Party elite — the activists, the pundits, the big-bucks donors — have succeeded in pitting social democracy against the very values (one is tempted to say the very people) that gave rise to social democracy in the first place.

 

Baffled by such rejection, an ostracized faith community shows every sign of realigning itself politically.

Failure of all eight Democrats on the Senate Judiciary Committee to show up for Thursday's session shut the panel down. Now Bush's judicial picks can't get a hearing at all, much less a fair one.

 

Of the committee's 10 Republicans, eight were on hand to consider the appeals court nomination of Thomas Griffith. Not one Democrat could be found. Four of them, including Patrick Leahy and Ted Kennedy, were in the congressional delegation attending the funeral of Pope John Paul II.

 

The other four had no excuse, except the claim expressed through aides that they were unwilling to debate and vote on the nomination with senior members in Rome. Committee rules require a quorum of 10 senators, so committee Chairman Arlen Specter was forced to cancel the proceedings and reschedule.

Neanderthal? Does Kennedy consider Janice Rogers Brown, nominated to the D.C. Court of Appeals, the first black woman to sit on the California Supreme Court, re-elected with 76% of the vote, the daughter of an Alabama sharecropper, a Neanderthal?

 

Brown's crimes, apparently, include being (1) a staunch supporter of property rights, which she views as under assault by eminent domain abuses, (2) an articulate voice for limited government and individual freedom and (3) a black conservative. 

 

Liberals like Kennedy and Durbin tout "diversity" and "equality," but hypocritically oppose an Hispanic because Estrada is a "dangerous Latino" and Brown because, as a Kennedy staff memo said, "We can't repeat the mistake we made with Clarence Thomas."

 

It's time to exercise the "nuclear option" and restore majority rule to the U.S. Senate. If Democrats in league with special interest groups want to shut that body down, voters can exercise the "Daschle" option in 2006.

Sen. Rick Santorum (Pa.), the chairman of the Senate Republican Conference, has reassured conservative activist leaders that Senate Majority Leader Bill Frist (R-Tenn.) is committed to triggering the “nuclear option,” stripping Democrats of the power to filibuster judicial nominees.

 

Santorum met the leaders Tuesday to dispel growing anxiety among conservatives that Frist was wavering over what some Republicans call the “constitutional” or “Byrd” option — a procedural tactic that would disallow judicial filibusters by a ruling of the Senate chair and a ratifying majority vote.

I think Republican Party honchos may be underestimating the grassroots passion over the judiciary. The outrage against activist courts -- and by no means are all of them activist -- is real, growing and far from a fringe phenomenon.

Looking back, it’s pretty clear what the 2004 election, at heart, was about: George Bush’s lock-and-load attitude towards the use of military force against regimes allied with Islamist terrorists. Looking ahead, it’s pretty clear what the 2008 election, at heart, will be about: the role of religious belief in what theologians quaintly call “the public square” —especially the federal courts and especially on “life issues” such as abortion, stem-cell research and the “right to die.”

As members of the legal profession, I know you share my concern over the public's misunderstanding of the judiciary's role and the politically motivated criticism of the judiciary stemming from the Terri Schiavo case, and are equally alarmed about the murders of Judge Lefkow's family members in Chicago and the attacks at the Fulton County Courthouse in Georgia.  .  .  .

In the past several days, I have issued public statements condemning the violence against our judiciary and the gratuitous and vicious public attacks on the dedicated men and women who are our country's judges.  During my speaking engagements, I have taken the opportunity to call for a change in tenor when the national discussion turns to our justice system.

The public's hope must be that Senator Cornyn's shameful outburst gives further pause to Senate moderates about the threats of the majority leader, Senator Bill Frist, to scrap the filibuster to ensure the confirmation of President Bush's most extremist judicial nominees. Dr. Frist tried to distance himself yesterday from Mr. DeLay's attack on the judiciary. But Dr. Frist must carry the militants' baggage if he is ever to run for president.

My point was, and is, simply this: We should all be concerned that the judiciary is losing respect that it needs to serve the interests of the American people well. We should all want judges who interpret the law fairly--not impose their own personal views on the Nation. We should all want to fix our broken judicial confirmation process. And we should all be disturbed by overheated rhetoric about the judiciary from both sides of the aisle. I regret that my remarks have been taken out of context to create a wrong impression about my position, and possibly be construed to contribute to the problem rather than to a solution. Our judiciary must not be politicized. Rhetoric about the judiciary and about judicial nominees must be toned down. Our broken judicial confirmation process must be fixed once and for all.

What are Americans to do if they are unhappy with the direction the courts have taken? They have elected and re-elected a president who promises to appoint "conservative" judges, and they've elected a Senate the majority of whose members favor every judge the president has nominated. Tough luck, says the Times, which approves of using the undemocratic filibuster to shield the courts from democratic influence.

 

All Americans should stand against political violence, which is a serious problem though mercifully also a rare one. Standing against democracy is something else entirely.

There’s certainly nothing wrong with monitoring the judiciary to make sure judges are fair and impartial; indeed, that’s healthy for the system. But legislative leaders need to make it clear that they will not be party to any effort to unseat judges who make legally correct rulings that displease powerful interests. If they don’t, our judges could feel intimidated into playing politics from the bench, whether that was the goal or not.

"Berger's "explanation" stinks: He claims he was too tired to review the documents in their secure venue, that eye fatigue moved him to stash them in his pocket for later comparison in the leisure of his home and office.

 

That's nonsense. After all, he went back a week later and helped himself to more documents.

 

Berger would also have us believe he "inadvertently" cut up and "inadvertently" destroyed the documents — that he had no intention of concealing anything from the commission. And then, I suppose, he inadvertently lied about what he'd done.

 

Come on. With a shabby explanation like that, Berger invites speculation that he is covering for himself or for the Clintons.

 

Back in the '90s, I found Berger consistently unwilling to act vigorously against terror-sponsoring nations. When Sen. Al D'Amato proposed sanctions against Iran, Berger tried to get Clinton to veto the bill; it was only after much public pressure that he signed it.

 

Berger was on a fast track to be the next Democratic Secretary of State. He risked that in stealing those documents. Now he has destroyed his future career by pleading to a criminal misdemeanor — admitting what he did while still concealing why he did it.

 

The Clintons' reaction when Berger was caught? The former president's comments sound just too scripted to believe: He laughed and said that it was typical of Sandy to be disorganized and forget how he handled documents. Quite a comment about the man he appointed to superintend the nation's secrets.

 

Then Hillary announced, without being asked, that Sandy had just helped brief her for a February speech at the annual Munich Conference on Security Policy — sending the adviser a signal that he was still part of the family, even though the grand jury was investigating him.

 

Picture the fevered atmosphere in the months after 9/11. Any indication by the commission investigating the attack that the Clinton administration hadn't taken terrorism seriously would badly damage the former president's reputation and the former first lady's chances. Any loyal adviser would have worked to mitigate the possible damage. The measure of how serious the damage may have been is how far Berger risked falling to prevent it — and how far he did fall rather than reveal why."

Each such action for medical injury shall be heard by the screening judge within 45 days after the defendant’s answer has been filed. At the screening hearing the burden of persuasion shall be on the plaintiff to produce such evidence as a reasonable person might accept as adequate to support a conclusion. Admissible evidence shall include, but not be limited to, hospital and medical records, nurses’ notes, x-rays, and other records kept in the usual course of the practice of the health care provider without the necessity for other identification or authentication, statements of fact or opinion on a subject contained in a published treatise, periodical, book, or pamphlet or statements by experts without the necessity of such experts appearing at the hearing. The screening judge may, upon his or her own decision, summon or subpoena any such records or individuals to substantiate or clarify any evidence which has been presented. The testimony of the witnesses and the decision of the screening judge shall not be admissible as evidence at a trial.

As I describe in Out of Balance: Prescriptions for Reforming the American Litigation System, pre-screening systems like this often create more problems than they solve.  HB 702 leaves too many questions unanswered, raising the likelihood of further litigation and expense.

For example:

• Will the parties have discovery during this accelerated process?  (If so, won't the parties still have substantial attorneys' fees and costs?  If not, how can the parties--or the court for that matter-- know what are the facts?)
• By what standard will the trial court determine if the case has enough merit "as a reasonable person might accept as adequate to support a conclusion"?  If this is a "simple preponderance" test, then isn't just like having a mini-trial, except without any of the procedural rights a plaintiff would enjoy in an ordinary civil case? 
• What evidentiary rules will the court follow, if any?  The bill says that "admissible evidence may include, but not be limited to" suggesting that there is other admissible evidence not listed.  May the court consider hearsay?  What about other kinds of evidence that would be inadmissible at trial?

It's hard not to sympathize with the reformers, who seem to intend to reduce frivolous litigation and reduce healthcare costs.  I only wish I could share their optimism as to the efficacy of this kind of reform.