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Carl Pope

Carl Pope

Posted: June 2, 2010 03:35 PM

The Politics of Poisoning America

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San Francisco -- If you think the politics of poisoning and ravaging America ended with George Bush's administration, here's some sobering counterevidence that a big part of our political elite wants to prove you wrong.

In Washington, a couple of weeks ago, Republican senators raked John McConnell, Jr. over the coals. McConnell is one of President Obama's nominees for the federal bench -- for a district judge seat from Rhode Island. What concerned Senators Jon Kyl and Jeff Sessions was that McConnell, as a public-interest lawyer, might have been, well, too zealous, in his efforts to protect children from lead poisoning. McConnell was the lead attorney for the State of Rhode Island in a case against manufacturers of lead paint. In the case, he argued that since the manufacturers of lead paint knew their product was toxic, and sold it anyway, they were legally liable for damages under the common-law doctrine of nuisance.

A jury agreed that the companies had to pay for cleaning up the toxic threat created by their product -- which the state estimated would cost $2.4 billion. But the Rhode Island Supreme Court threw out the verdict, saying that the companies didn't control where their product was used, so they shouldn't be liable. Taxpayers were back on the hook.

Whatever you think of the verdict, McConnell was a lawyer representing a client, the State of Rhode Island. He argued on behalf of his client, which is what lawyers are supposed to do. Litigators are not supposed to behave like judges (until and unless they actually become one).

That distinction was lost on Senators Kyl and Sessions. Sessions actually argued:

"Being passionate and zealous is a good quality for a litigator. But I do think those qualities are somewhat different in the cloistered halls of a courtroom, where you're reading briefs and trying to be objective. Those emotions might again start running, and you might say that 'There's a wrong there that I need to right.'"
The two Republican senators were echoing the arguments of the Chamber of Commerce, which had warned Congress against McConnell:
"His apparent bias against the business community and questionable judicial philosophy raise serious reservations about his fitness to serve a lifetime appointment to the federal bench," said Lisa Rickard, president of the U.S. Chamber's Institute for Legal Reform. "McConnell's elevation to the federal judiciary could create a 'magnet' jurisdiction that would encourage additional meritless, plaintiffs' lawyer-driven lawsuits."
So apparently the Chamber of Commerce and Senators Kyle and Sessions think that nuisance law (after-the-fact liability) is the wrong way to protect the public health -- and that any lawyer who has argued to the contrary is unfit to be a federal judge.

Perhaps they  favor a more efficient approach to protecting public health, like testing chemicals in advance to find out whether they're toxic before they are painted all over our homes and communities?

Think again. A week later, over on the House side, the Republican leadership decided it would oppose the testing of chemicals for toxicity except on the basis of peer-reviewed science showing that they are toxic.  In essence, the Republicans claimed that it was necessary to amend a bill designed to protect the public against endocrine disruptors so that it instead protected the industry from having to test its chemicals:

"In the bill, the only language guiding EPA is that they use 'scientific information' -- which is undefined, and could be interpreted to include any study done anywhere at any time, whether it's peer-reviewed or comes from a special interest group with an agenda," one Republican staff member commented.
Now note, the objection is not to regulating these chemicals based on preliminary science. The Republicans are protesting testing chemicals -- unless we already have good testing showing they are toxic. But only a tiny fraction of the more than 80,000  commercial chemicals to which we are exposed have been tested -- and the bill that the Republicans tried to water down would have required testing only 100 new chemicals a year.

And let's look a little more carefully at the question of who is fit to be a federal judge. A three-judge panel of the 5th U.S. Circuit Court of Appeals had also looked at the issue of after-the-fact liability -- and determined that victims of Hurricane Katrina had a legal right to bring a lawsuit against the oil industry for the role that global warming pollution had contributed to the damages. The oil industry then appealed that ruling to the entire sixteen-judge court.

The 5th U.S. Circuit Court of Appeals agreed to hear the case. But then various judges began recusing themselves from the case. Eventually the court was left without a quorum, because eight of the sixteen judges felt they had a conflict of interest. Last week, five of the remaining eight judges announced that since too few of their colleagues could hear the case, they would restore -- not the three-judge appellate opinion -- but an original lower-court ruling that Katrina victims had no right to be in court against the oil industry.

In effect, the Katrina victims have been denied their right to an appeal -- because too many members of the Court of Appeals apparently own too much stock in the oil industry or have some other financial conflict of interest. But these are the same judges who are likely to preside over the multitude of cases that will flow from the Deepwater Horizon disaster. In effect, it appears that half the membership of an entire Federal Circuit Court have compromised themselves by investing heavily in their region's dominant industry -- one that generates a huge amount of litigation and is at this point an excellent candidate for public enemy number one. At best, this shows poor judgment. Any 5th Circuit judge knows that he or she is going to hear lots of cases involving the oil industry.

I doubt we will hear cries of anguish over this from Senators Kyl and Sessions. In fact, they voted to confirm all of the judges on this Court who were appointed while they were in the Senate.

So, let me get this straight: Lawyers who try to protect children from lead poisoning are unfit to be judges, but judges who will invest heavily in a major polluting industry are fine. And chemicals can be tested for toxicity, but only if they have already been tested and found to be toxic.

Campaign-finance reform, anyone?


 
 
 

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