Joshua Green "John Edwards, Esq." Sat Jul 10, 2004 15:36 64.140.158.68 "John Edwards, Esq." by Joshua Green Respond to this Article, October 2001. John Edwards, Esq. Republicans believe that Americans will never elect a trial lawyer president. They're wrong. ... http://www.washingtonmonthly.com/features/2001/0110.green.html John Edwards, Esq. Republicans believe that Americans will never elect a trial lawyer president. They're wrong. By Joshua Green On August 5th, NBC's Meet the Press featured someone and something we're likely to see much more of in years to come: Senator John Edwards (D-N.C.) squaring off against a nervous representative of the Bush administration. The issue in this case was the so-called patients' bill of rights, and Rep. Charlie Norwood (R-G.A.) the Bush surrogate. Days earlier, the president had sweet-talked Norwood into a midnight deal that sharply restricted patients' right to sue their HMOs. Norwood, who for many years had advocated a much tougher bill, had essentially been suckered, and appeared acutely aware of this as he sat alongside Edwards, glumly resigned to defending a bad deal. Tim Russert was on the attack, pressing Norwood about his recent yielding on patients' rights to sue in state courts: "Why did you abandon those views?" Norwood hemmed and hawed and finally was reduced to parroting the administration's line: "It is potentially possible that [lawsuits] could ruin the employer-based health-care system in the country." Russert pressed him harder. "Do you believe that?" It turned out Norwood did not. Russert then turned to Edwards, a trial lawyer by profession, who neatly summarized the deal's shortcomings. "Number one, this deal---which was written in the middle of the night, by the way---takes away rights that patients already have across the country," he explained. "Number two, it maintains the privileged special status that HMOs enjoy today. And, number three, it stacks the deck against patients when they're trying to hold HMOs accountable for what they do." Edwards also pointed out that a seemingly minor change in the bill's language had shifted accountability away from HMOs---something Norwood had failed to recognize and meekly agreed was "a mistake." The discussion turned to caps on the amount of damages that negligent HMOs would face. Norwood had previously fought such caps and again stumbled in rationalizing his reversal. Edwards, who flat-out opposes capping damages, summed up his case in one line: "A right [to sue] that's not enforceable doesn't mean anything." By the time Russert broke for commercial, Norwood had pretty much thrown in the towel. The fight over precisely how patients should be allowed to sue their HMOs may seem relatively minor, considering that 44 million Americans don't even have health insurance. But the debate that morning had a deeper symbolic meaning. As every political junkie knows, John Edwards almost became Al Gore's running mate in 2000 (several sources say he was next after Joe Lieberman). Among a handful of undeclared candidates for the Democratic nomination in 2004, he's lately been basking in media attention. With Gore's recent inability to reignite support, a case could be made that Edwards is the current frontrunner. The fight was important on another level, too. For a long time, the two parties have wrestled in various contexts over the right to sue, Democrats generally defending it and Republicans seeking to restrict it. But at least in the public mind this issue hasn't yet risen to a defining philosophical difference like abortion, taxes, or the size of government. Many Republicans would like to change that, President George W. Bush prominent among them. As governor of Texas, Bush made "tort reform" one of his top agenda items. Quietly, in ways that have garnered little attention, the White House is laying out a strategy that in the coming months will seek to make tort reform a defining issue of Bush's presidency. The pursuit of this agenda will naturally draw Edwards into the spotlight as a defender of the process of litigation in general and of trial lawyers in particular. It will place him center stage in one of the most interesting and useful debates of the next few years. Democrats will have to defend their belief that litigation is ultimately good for America, while convincing voters that this belief doesn't stem from hefty campaign contributions from trial lawyers. As the administration moves forward on tort reform, buoyed by ideology and by polls showing that three out of four Americans dislike lawyers, it will try to paint Democrats as the party of ambulance-chasers and Edwards as their champion, in the process snuffing out a potential challenger to Bush. In fact, that's already begun. "America won't elect John Edwards president for the same reason we've never elected a used car salesman president," declares GOP pollster Frank Luntz. "America hates trial lawyers." That's the theory, anyway. But as Edwards' performance on Meet the Press suggests, the GOP may have picked the wrong fight against the wrong man. Greedy, Evil, and Ethically Bankrupt Edwards hasn't compiled enough of a political record for Republicans to attack. Before he was elected to the Senate in 1998, he had never held office. His respectably centrist positions don't seem captivating enough to energize a McCain-like populist bid for the White House. But neither are they easy for the GOP to exploit. The media has focused on Edwards the politician---his looks, his charm, and his positions. But GOP political strategists are already digging into his previous life as a trial lawyer, convinced that something damaging will turn up. It's a strategy that has the advantage of dovetailing with the deeply held Republican conviction that the countless excesses of trial lawyers are among the fundamental problems facing the country today. Republican masterminds will argue vehemently that attacking lawyers is a winning move. Polls show that three-fifths of Americans think lawyers are greedy, and three-quarters believe that they charge too much; roughly the same percentage believes litigation to be too costly, too lengthy, and too heavily geared toward the rich. This hostility informs public attitudes about lawyers as people. The American Bar Association reports that only one person in five agrees that lawyers are "honest and ethical." Consequently, law is among the least respected professions. It doesn't help that more than three-quarters of lawyers don't want their children to follow them into the legal profession. In politics, "lawyer" has come to displace "liberal" as the dreaded "L" word, especially in the South. In Louisiana in 1999, all but one of the 10 candidates for state legislature attacked as trial lawyers lost. As one local pollster put it: "�Trial lawyer' has become a pejorative term. It is now an acceptable substitute for calling someone a devil." And at least on an anecdotal level, that's just as true nationally. When it comes to civic virtue, lawyers rank in the minds of most Americans somewhere alongside ivory smugglers and tobacco executives. (Polls do show that lawyers edge out used car salesmen. But not by much.) There are material reasons, as well, for Republicans to go after trial lawyers: the large corporations that generally support Republicans are frequently subject to lawsuits that exact damage awards in the millions of dollars. Small businesses fear trial lawyers even more. A sizable judgment against a Fortune 500 company at most knocks down its stock price; but it can drive a small business into bankruptcy. The National Federation of Independent Business, the main small-business group instrumental in crafting the president's tax cut, is equally involved in guiding tort-reform initiatives. If only by default, trial lawyers strongly identify with the Democratic Party. In those parts of the rural South where unions are weak, they constitute most of the party infrastructure and give accordingly. In the 2000 election cycle, Democrats received 98 percent of the nearly $15 million that trial lawyers gave to candidates, far outclassing the degree to which Republicans benefited from the oil and gas industry (78 percent of its donations) and the pharmaceutical industry (68 percent). So, in addition to aiding important constituents, tort reform offers the added benefit for Republicans of weakening a pillar of the opposition. Tort Reform, Texas-Style Tax cuts aside, nothing is closer to George W. Bush's heart than dismantling the current legal system. Long before there was "compassionate conservatism," Bush was attacking the excesses of trial lawyers. In Texas, demonizing lawyers is a hallowed tradition long predating Bush's governorship. In the mid-1980s, state Republicans and conservative Democrats began targeting what they considered predatory litigation, passing laws to limit consumers' rights to sue businesses, and electing justices to the Texas Supreme Court who shared this point of view. Bush merely tapped into this sentiment when he ran for governor. "Probably the first and most important thing I will do when I am governor of this state," Bush promised during the campaign "is to insist that Texas change the tort laws and insist that we end the frivolous and junk lawsuits that threaten our producers and crowd our courts." And his first major accomplishment after being sworn in was to call an emergency session of the legislature to take up tort reform. Within weeks he'd signed business-friendly legislation capping punitive damages, limiting class actions to federal courts (which are more expensive and harder to navigate than state courts), and making it easier for judges to impose sanctions on plaintiffs who file frivolous suits. The administration is now filled with people such as Karl Rove, who helped orchestrate the successful tort initiatives in Texas and want to do the same thing nationally. As early as January, the White House is planning to roll out a series of tort reforms, including similar caps on some punitive damages and restrictions on filing class actions. The coming battle over the right to sue is a perfectly good argument for the country to have. There are plenty of abuses of the legal system that Democrats would be foolish to defend. But if Republicans decide to make Edwards the focal point of their campaign, they're likely to lose the argument---and possibly the White House. ----------------------------------------------- Joshua Green is an editor of The Washington Monthly. The Washington Monthly 733 15th St. NW Suite 520 Washington DC. 20005. Comments or questions .. CLICK FULL STORY: http://www.washingtonmonthly.com/features/2001/0110.green.html
Joshua Green
Sat Jul 10, 2004 15:36 64.140.158.68 "John Edwards, Esq." by Joshua Green Respond to this Article, October 2001. John Edwards, Esq. Republicans believe that Americans will never elect a trial lawyer president. They're wrong. ... http://www.washingtonmonthly.com/features/2001/0110.green.html John Edwards, Esq. Republicans believe that Americans will never elect a trial lawyer president. They're wrong. By Joshua Green On August 5th, NBC's Meet the Press featured someone and something we're likely to see much more of in years to come: Senator John Edwards (D-N.C.) squaring off against a nervous representative of the Bush administration. The issue in this case was the so-called patients' bill of rights, and Rep. Charlie Norwood (R-G.A.) the Bush surrogate. Days earlier, the president had sweet-talked Norwood into a midnight deal that sharply restricted patients' right to sue their HMOs. Norwood, who for many years had advocated a much tougher bill, had essentially been suckered, and appeared acutely aware of this as he sat alongside Edwards, glumly resigned to defending a bad deal. Tim Russert was on the attack, pressing Norwood about his recent yielding on patients' rights to sue in state courts: "Why did you abandon those views?" Norwood hemmed and hawed and finally was reduced to parroting the administration's line: "It is potentially possible that [lawsuits] could ruin the employer-based health-care system in the country." Russert pressed him harder. "Do you believe that?" It turned out Norwood did not. Russert then turned to Edwards, a trial lawyer by profession, who neatly summarized the deal's shortcomings. "Number one, this deal---which was written in the middle of the night, by the way---takes away rights that patients already have across the country," he explained. "Number two, it maintains the privileged special status that HMOs enjoy today. And, number three, it stacks the deck against patients when they're trying to hold HMOs accountable for what they do." Edwards also pointed out that a seemingly minor change in the bill's language had shifted accountability away from HMOs---something Norwood had failed to recognize and meekly agreed was "a mistake." The discussion turned to caps on the amount of damages that negligent HMOs would face. Norwood had previously fought such caps and again stumbled in rationalizing his reversal. Edwards, who flat-out opposes capping damages, summed up his case in one line: "A right [to sue] that's not enforceable doesn't mean anything." By the time Russert broke for commercial, Norwood had pretty much thrown in the towel. The fight over precisely how patients should be allowed to sue their HMOs may seem relatively minor, considering that 44 million Americans don't even have health insurance. But the debate that morning had a deeper symbolic meaning. As every political junkie knows, John Edwards almost became Al Gore's running mate in 2000 (several sources say he was next after Joe Lieberman). Among a handful of undeclared candidates for the Democratic nomination in 2004, he's lately been basking in media attention. With Gore's recent inability to reignite support, a case could be made that Edwards is the current frontrunner. The fight was important on another level, too. For a long time, the two parties have wrestled in various contexts over the right to sue, Democrats generally defending it and Republicans seeking to restrict it. But at least in the public mind this issue hasn't yet risen to a defining philosophical difference like abortion, taxes, or the size of government. Many Republicans would like to change that, President George W. Bush prominent among them. As governor of Texas, Bush made "tort reform" one of his top agenda items. Quietly, in ways that have garnered little attention, the White House is laying out a strategy that in the coming months will seek to make tort reform a defining issue of Bush's presidency. The pursuit of this agenda will naturally draw Edwards into the spotlight as a defender of the process of litigation in general and of trial lawyers in particular. It will place him center stage in one of the most interesting and useful debates of the next few years. Democrats will have to defend their belief that litigation is ultimately good for America, while convincing voters that this belief doesn't stem from hefty campaign contributions from trial lawyers. As the administration moves forward on tort reform, buoyed by ideology and by polls showing that three out of four Americans dislike lawyers, it will try to paint Democrats as the party of ambulance-chasers and Edwards as their champion, in the process snuffing out a potential challenger to Bush. In fact, that's already begun. "America won't elect John Edwards president for the same reason we've never elected a used car salesman president," declares GOP pollster Frank Luntz. "America hates trial lawyers." That's the theory, anyway. But as Edwards' performance on Meet the Press suggests, the GOP may have picked the wrong fight against the wrong man. Greedy, Evil, and Ethically Bankrupt Edwards hasn't compiled enough of a political record for Republicans to attack. Before he was elected to the Senate in 1998, he had never held office. His respectably centrist positions don't seem captivating enough to energize a McCain-like populist bid for the White House. But neither are they easy for the GOP to exploit. The media has focused on Edwards the politician---his looks, his charm, and his positions. But GOP political strategists are already digging into his previous life as a trial lawyer, convinced that something damaging will turn up. It's a strategy that has the advantage of dovetailing with the deeply held Republican conviction that the countless excesses of trial lawyers are among the fundamental problems facing the country today. Republican masterminds will argue vehemently that attacking lawyers is a winning move. Polls show that three-fifths of Americans think lawyers are greedy, and three-quarters believe that they charge too much; roughly the same percentage believes litigation to be too costly, too lengthy, and too heavily geared toward the rich. This hostility informs public attitudes about lawyers as people. The American Bar Association reports that only one person in five agrees that lawyers are "honest and ethical." Consequently, law is among the least respected professions. It doesn't help that more than three-quarters of lawyers don't want their children to follow them into the legal profession. In politics, "lawyer" has come to displace "liberal" as the dreaded "L" word, especially in the South. In Louisiana in 1999, all but one of the 10 candidates for state legislature attacked as trial lawyers lost. As one local pollster put it: "�Trial lawyer' has become a pejorative term. It is now an acceptable substitute for calling someone a devil." And at least on an anecdotal level, that's just as true nationally. When it comes to civic virtue, lawyers rank in the minds of most Americans somewhere alongside ivory smugglers and tobacco executives. (Polls do show that lawyers edge out used car salesmen. But not by much.) There are material reasons, as well, for Republicans to go after trial lawyers: the large corporations that generally support Republicans are frequently subject to lawsuits that exact damage awards in the millions of dollars. Small businesses fear trial lawyers even more. A sizable judgment against a Fortune 500 company at most knocks down its stock price; but it can drive a small business into bankruptcy. The National Federation of Independent Business, the main small-business group instrumental in crafting the president's tax cut, is equally involved in guiding tort-reform initiatives. If only by default, trial lawyers strongly identify with the Democratic Party. In those parts of the rural South where unions are weak, they constitute most of the party infrastructure and give accordingly. In the 2000 election cycle, Democrats received 98 percent of the nearly $15 million that trial lawyers gave to candidates, far outclassing the degree to which Republicans benefited from the oil and gas industry (78 percent of its donations) and the pharmaceutical industry (68 percent). So, in addition to aiding important constituents, tort reform offers the added benefit for Republicans of weakening a pillar of the opposition. Tort Reform, Texas-Style Tax cuts aside, nothing is closer to George W. Bush's heart than dismantling the current legal system. Long before there was "compassionate conservatism," Bush was attacking the excesses of trial lawyers. In Texas, demonizing lawyers is a hallowed tradition long predating Bush's governorship. In the mid-1980s, state Republicans and conservative Democrats began targeting what they considered predatory litigation, passing laws to limit consumers' rights to sue businesses, and electing justices to the Texas Supreme Court who shared this point of view. Bush merely tapped into this sentiment when he ran for governor. "Probably the first and most important thing I will do when I am governor of this state," Bush promised during the campaign "is to insist that Texas change the tort laws and insist that we end the frivolous and junk lawsuits that threaten our producers and crowd our courts." And his first major accomplishment after being sworn in was to call an emergency session of the legislature to take up tort reform. Within weeks he'd signed business-friendly legislation capping punitive damages, limiting class actions to federal courts (which are more expensive and harder to navigate than state courts), and making it easier for judges to impose sanctions on plaintiffs who file frivolous suits. The administration is now filled with people such as Karl Rove, who helped orchestrate the successful tort initiatives in Texas and want to do the same thing nationally. As early as January, the White House is planning to roll out a series of tort reforms, including similar caps on some punitive damages and restrictions on filing class actions. The coming battle over the right to sue is a perfectly good argument for the country to have. There are plenty of abuses of the legal system that Democrats would be foolish to defend. But if Republicans decide to make Edwards the focal point of their campaign, they're likely to lose the argument---and possibly the White House. ----------------------------------------------- Joshua Green is an editor of The Washington Monthly. The Washington Monthly 733 15th St. NW Suite 520 Washington DC. 20005. Comments or questions .. CLICK FULL STORY: http://www.washingtonmonthly.com/features/2001/0110.green.html