Sotomayor on Tort: Whose Side Is She On?
For years, “tort reform” has been a crusade of the Right. I have argued elsewhere that “tort reform” amounts to a well-funded campaign to manipulate public opinion and fool people into giving up their 7th Amendment rights to sue for recovery of damages.
In brief, the word “tort” refers to personal injury. Filing suit against someone who has harmed you is an example of tort. Tort law is vast and complicated, and one can always find details to criticize. Certain situations present difficult issues, such as mesothelioma resulting from decades-past asbestos exposure, that are difficult to determine fairly.
But the kind of overhaul the Right wants is mostly about protecting corporate interests from liability. Tort cases very often pit the “little guy” — an individual citizen — against a “big guy” — an employer, corporation or institution. Conservatives want to rig the system to favor the “big guy” by locking the doors of the courthouse.
However, tort cases are still being tried in the U.S., and some of those cases make it to the U.S. Supreme Court. History tells us that Supreme Court justices do not always rule as expected. But what does Supreme Court nominee Sonia Sotomayor’s record reveal about her thinking on tort?
The record shows that Sotomayor is not the knee-jerk bleeding heart the Right makes her out to be. Before becoming a judge she worked as an attorney for Pavia & Harcourt, a New York-based international business firm, which no doubt gave her some empathy with business interests. Writing for the Atlantic, Daniel Indiviglio says Sotomayor’s record “is not pro-business, but not anti-business either.”
Who Doesn’t Like Her
Here’s the good news — the president of the American Tort Reform Association (ATRA), Tiger Joyce, is opposed to confirming Sotomayor. I say if Tiger Joyce doesn’t like her, she can’t be all bad.
According to Public Citizen, ATRA is “a coalition of more than 300 corporations and associations representing tobacco, pharmaceutical, automotive and chemical industries that seeks immunity from lawsuits.” The organization specializes in misleading claims based on flawed research. It is part of the vast network of think tanks and astroturf organizations funded by right-wing moneyed interests.
“Judge Sotomayor’s candid remarks at Duke Law School a few years ago have recently become a much reported YouTube sensation wherein she says, ‘It is the court of appeals where policy is made.’
“That’s a disconcerting concept that arguably flies in the face of the Constitution’s separation of powers, which properly leaves policymaking in the hands of the elected branches of government.”
The website Media Matters documents that the Duke Law School quote was taken out of context to smear Judge Sotomayor. The complete transcript of the remark, in which she is answering a question, shows that Sotomayor thinks the statement “It is the court of appeals where policy is made” is a “saw,” and “I'm not promoting it, and I'm not advocating it.” That part gets left out of the YouTube videos.
Sotomayor “a Lot” Like Alito?
On the other hand, Judge Sotomayor’s opinions on cases that involve awards damages don’t always favor the plaintiff.
For example, in 2000 she dissented in a ruling that allowed plane crash victims’ families to sue TWA, Boeing Co. and a parts manufacturer for damages. The majority decision of the appeals court was that the 1996 crash of TWA Flight 800 off the coast of Long Island had occurred within U.S. territorial waters. Christopher Rugaber writes for the Associated Press, quoting Evan Tager, a partner at the law firm Mayer Brown:
“Sotomayor argued for a different interpretation of the law that would have limited the damages. Her view, Tager said, was that ‘it's unfortunate for these victims, but the law's the law.’ … “… Sotomayor also supported reducing the damages awarded in a case involving rail company CSX Corp., Tager said. Her record suggests she thinks that ‘damages should be kept under control,’ he said.”
Rugaber also quotes Carl Hittinger, a lawyer with DLA Piper based in Philadelphia, who says Sotomayor has a history of siding against plaintiffs with antitrust complaints. Her approach is pro-business and "reminds me a lot" of Justice Samuel Alito, Hittinger says.
A Moderate on Punitive Damages
Writing for Business Week, Steve LeVine and Theo Francis also quote Evan Tager, who says Sotomayor has "expressed unease" about large punitive damage awards. However, she has upheld large awards "when the ratio of punitive to compensatory damages is modest." Further,
“Thomas H. Dupree Jr., an appellate lawyer with Gibson, Dunn & Crutcher, said he expects Sotomayor to ‘recognize the need to rein in arbitrary and excessive punitive damage awards.’ … ‘Based on her record, it is very likely that she will align herself with the more liberal side of the court’ on social and civil cases, Dupree said. ‘[Yet] while no one would call Judge Sotomayor stridently pro-business, there are many business issues that cut across the traditional liberal and conservative ideological lines.’"
The CATO Caterwaul
In spite of her moderation on business issues, the libertarian, pro-free market CATO Institute has come out with guns blazin’ against the Sotomayor nomination. Ilya Shapiro writes for CATO:
“In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit. While Judge Sotomayor exemplifies the American Dream, she would not have even been on the short list if she were not Hispanic.”
Ouch. But what’s CATO’s real beef? Reading on, we find that Shapiro is basing his opinion of Sotomayor on one case — Ricci v. DeStefano. And in this case Sotomayor did not write an opinion. She and two other appeals judges adopted a district court’s ruling without adding their own comments.
Writing for Slate, Emily Bazelon describes Ricci as a “hard case with bad facts.” Very simply, in 2003 the city of New Haven, Connecticut, decided to base firefighter promotions primarily on a written test. When the test was applied, no African American applicant qualified for promotion. Faced with possible political backlash from New Haven’s African-American majority, the city withdrew the test.
Firefighters who had studied hard and passed the test — including Frank Ricci, who is dyslexic —cried foul. On the other hand, as Bazelon writes,
“In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact—it affects one racial group more than others—must truly be job-related in order to be legal. You can see why New Haven's black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It's like granting a driver's license based solely on the written test, only with much higher stakes.”
The district court ruled against Rizzi, and the appeals court, on which Sotomayor sat, punted without comment.
Ilya Shapiro of CATO claims that Frank Rizzi was a victim of racial discrimination.
“If Frank Ricci, a dyslexic fireman who sacrificed significant time and money and was denied promotion solely for his skin color, is not an empathetic figure, I'm not sure who is. And that is the larger point: A jurisprudence of empathy is the antithesis of the rule of law.”
One might point out that Ilya Shapiro clearly is empathizing with Frank Rizzi. As Bazelton says, it’s not a simple case when one looks at it dispassionately and objectively. And Ricci does not appear to be typical of how Sotomayor has handled such cases in the past. But that’s the only case Ilya Shapiro needs to know about to render judgment on Sonia Sotomayor.
It is entirely possible Justice Sotomayor will be more or less conservative or liberal than was Judge Sotomayor. Based on her record, it appears Sotomayor is a centrist on tort issues who does not automatically take sides with either plaintiffs or defendants. But that doesn’t mean the “pro-business” Right will not continue to attack her and try to block her nomination.