MTLA President’s Message:
The New Political Game — Attacking the Judiciary by Philip O. Foard
Now that this historic Presidential
Election is finally over, perhaps it is time for a few observations as to how it has (or will) impact the legal profession. First and foremost, it was not (as usual) a good day for trial lawyers of either po- litical persuasion. Although, thanks to a well-financed, 20-year advertising cam- paign by the tobacco companies and other special interests skewering both run-away juries and rich trial lawyers, no one be- lieves that any increased public resentment will fall other than on those greedy plain- tiffs’ lawyers who were so ardently supporting Vice President Gore. Of greater concern however, is the public per- ception that the judicial branch of government is just as political as the other two. For most, the split decisions as well as the make-up of the two supreme courts in favoring the candidate closest to their majorities’ political persuasion, is too co- incidental to be otherwise. This is unfortunate.
While public
opinion can be changed, for now (and the foreseeable future), the polarizing forces that have brought us the ever-escalating politics of personal attack, may in the public’s mind also legitimately include the courts. And does anyone doubt that those same special interests already seeking to undermine public confidence in our sys- tem of justice, won’t feel greater confidence in stepping up those attacks a notch or two? Here in Maryland, we have thus far
been spared from the attack dog organi- zations such as Citizens Against Lawsuit Abuse (CALA) who are so generously funded by the tobacco and asbestos in- dustries. Although, we had a mild taste of it last year when special interests were able to overturn two court of appeals’ de- cisions against the cable and HMO industries by passage of retroactive legis- lation. The legislative debate (scripted by industry proponents) pushed the merits well to the background while recklessly spewing forth vitriolic attacks against ac- tivist judges who dared to invade legislative prerogatives. The point here is
Winter 2001
not that such special interest legislation was passed, that’s a fact of political life— but that an attack on our highest court was thought to be the best way to justify its passage to the public.
The success of that campaign has so emboldened the special interests locally that they decided to fund the first CALA lobbyist in Maryland. With the presiden- tial election having fostered the perception of the judiciary as part of a polarized po- litical system, don’t be surprised to see well-financed races against sitting judges as has been happening elsewhere in order to send a very pointed and chilling mes- sage to the rest of the courts of this state. Selection of judges in accordance with their idealogical beliefs is one thing, en- suring an exceptional rating from the Chamber of Commerce in order to stay there, is (or should be) totally unaccept- able.
Politics By Other Means (the title of a new book exploring the success of per- sonal attack in politics) has certainly penetrated the judicial branch of our gov- ernment. Successful vilification of its priests (lawyers) has long since under- mined our ability to do anything but further damage to its temples; and a de- fense of our judicial system by a responsible media is even less likely. The only answer I fear is time. Time to ex- pose the excesses that will surely occur when any strident political force, confi- dent of its powers, overreaches.
In the
meantime, hopefully more of us will (if not run for political office) at least become active in the campaigns of our elective officials. Also, a good sense of humor helps. Remember — as divisive as this election may have seemed, no one was challenged to a duel as happened as a re- sult of the 1800 Presidential Election.
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