How the Moderator Flubbed the Supreme Court Question

Wednesday night’s debate started off with the following question:

First of all, where do you want to see the court take the country? And secondly, what’s your view on how the Constitution should be interpreted? Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances?

Look, it’s clear from Article II of the Constitution that the President shall nominate judges of the Supreme Court. Accordingly, the candidates’ opinions on issues that could potentially come before that Court are certainly relevant.

But, here’s what’s troubling about the question. The President shouldn’t be appointing judges in the hopes of guiding the country in any particular way. Instead, he or she should be looking for nominees who are (1) qualified to do the job; and (2) who will uphold the Constitution of the United States.

The second part of the question – how the Constitution should be interpreted – is absolutely outside the scope of the President’s powers.

The premise of the question assumes that the President should have a say on how the Court rules, even though the Judicial Branch is separate to ensure proper checks and balances. Because politics has intruded on almost all decisions in Washington, we’ve reached the point where the premise of the moderator’s questions is presumed to be correct. This is unfortunate.

Here is how we would have phrased the question:

There are no specific qualifications for Supreme Court Justices, including age, education, profession, native-born citizenship, or even a legal background. Because the next President will almost certainly have at least one appointment — and potentially two or three – what qualifications will you look for in a nominee?

This phrasing takes away the President’s invisible hand in pushing an agenda for the Supreme Court and gives back the impartiality that the Court should have.

(For a full transcript of the debate, see:


Class Actions are Safe…For Now

The Supreme Court surprised the legal world this week when it held that a defendant who made a Rule 68 offer of settlement to the lead plaintiff in a class action could not defeat the entire class by doing so. The majority, led by Justice Ginsburg, arrived at its opinion primarily on the basis of contract law, and stated that a rejected offer “creates no lasting right or obligation.”

The full text of the opinion can be found here:

Campbell-Ewald Co. v. Gomez

As the following articles explain, the victory allows those who fight on behalf of consumers to continue their pursuit of justice, but it also leaves open the possibility for future class action defendants to squash such cases by actually paying to settle with the lead plaintiff:

Supreme Court says class action lawsuits can survive compensation offers (USA Today)

Supreme Court Rejects One Tactic To End Class Actions, But Leaves Another Open (Forbes)

Justice Ginsburg Leads Supreme Court Majority To Deliver Blow To Big Business (HuffPost)

Given the makeup of the Supreme Court — and the stated reasoning for Justice Thomas’s dissent — it appears that once again this issue will, if before this group of nine, depend on Justice Kennedy’s vote.

Schilling’s Actions Hold Wrongdoers Responsible

Kudos to Curt Schilling, former all-star pitcher and World Series hero, who came to his daughter’s defense after cyberbullies wrote rude, nasty, hateful things. What spurred them on? The family’s celebration of the younger Schilling’s acceptance to college. Schilling found out who a number of these bullies were, exposed them for their vulgarity, and the repercussions — firings, suspensions, etc. — flowed from there.

Too often wrongdoers are protected so that victims can never hold them responsible for their actions. Statutes protect municipalities from being held liable for wrongdoing. Insurance companies fight tooth and nail to protect negligent actors and refuse to provide full and fair compensation to those who they’ve victimized — making the victim a victim twice over. And mandatory arbitration clauses place victims at a distinct disadvantage when dealing with corporate America.

So, a tip of the (baseball) cap to Mr. Schilling, who like a number of champions for justice, did his part to help not only his own family, but others who may be suffering the same types of victimization.

Nationwide Commercial’s Reality Strikes a Chord

During the Super Bowl, Nationwide insurance company ran a commercial that upset many viewers because of its somber overtone. After showing a child partaking in a number of activities, the camera focuses on him and he deadpans, “I couldn’t grow up because I died from an accident.”

People don’t like to envision a worst-case scenario, especially when it comes to their own families. But, we live in a world where tragedy can strike at any time. It’s rarely the insurance companies that look out for victims’ best interests. Many people are forced to retain attorneys for the sole reason that they have treated unfairly by an insurance carrier — especially in a state like New York, where the insurance companies have no fear of claims against them for bad faith.

Obviously, it’s beneficial for insurance companies for fewer incidents to occur. The fewer the incidents, the fewer claims there are that they need to pay.

But if an incident occurs, insurance companies typically resort to any tactics necessary to ensure that the sum they pay is as low as possible — regardless of whether that fairly compensates the claimant.

So, it’s ironic that an insurance company states: “…we believe in protecting what matters most: your kids.”

If they were honest, the statement would be, “We believe in protecting what matters most: our bottom line.”

But, it’s not just the insurance companies who bear responsibility for treating victims badly. In New York State, the family members of the child who appears in the commercial would not be able to recover any damages for the grief they experienced — and continue to experience — as a result of the child’s death if it were brought upon by the negligence of another person or company.

Money isn’t a magic potion to make everything okay. It’s the only remedy, however, that our system of justice can provide. By disallowing such a recovery, the legislature has decided that grieving families have no value, and that is an injustice.

To fix these issues, New York State should pass laws to curtail acts of bad faith by insurance companies, and to allow grieving families to recover for the loss of a loved one that was caused by someone else’s negligence.

These issues may make people uncomfortable, but unfortunately there are many families for whom these issues are real and personal.

Medical Malpractice Problems in PA Highlight Problems Nation-Wide

One of the most prominent champions for justice in Pennsylvania, Shanin Specter, recently highlighted the ills that have befallen victims of medical malpractice in that state and nationally.  Some of the most poignant quotes are as follows:

“There is a silent crisis today in our civil justice system: the uncompensated victim of medical negligence.”

* * *

“Strikingly, all states have experienced large drops in paid claims per physician. From 1992 to 2012, paid claims per physician dropped by 57 percent nationally, including 51 percent in those states such as Pennsylvania that do not impose a cap on pain and suffering damages.  The number of paid claims per physician career has dropped from 1.05 in 1992 to 0.45 in 2012.  Thus, the average physician will never be involved in a medical malpractice claim that results in the payment of money.”

* * *

“The decrease in claims and damage payments results in fewer fairly compensated victims of medical negligence.”

* * *

“The pendulum has swung too far in favor of health care providers and their insurers, and against medical malpractice victims. It’s time to move toward the center.”

The full text of the article can be read here:

It’s time for doctors who needlessly injure patients to be held accountable on a fair and consistent basis.

The insurance companies are enjoying the fruits of their lobbying efforts by blocking victims from pursuing their Seventh Amendment rights, at the same time that their hands are out to collect malpractice premiums from the doctors.  The insurance companies benefit at the victims’ expense.