Everything You Wanted to Know About Corporate Power But Were Afraid to Ask, Part II

BY RALPH NADER

Statement of Ralph Nader on the nomination of John G. Roberts Jr. by President George W. Bush to be Chief Justice of the Supreme Court of the United States submitted to the Senate Judiciary CommitteeU.S. Senate, Washington, D.C., September 12, 2005

1. Lloyd Cutler, speaking as a prominent corporate attorney, once said: “There is one point I want to make clear: we believe in the arguments that we make.” Do you believe the arguments you have made on behalf of your corporate clients?

2. Do you believe limits on television station ownership abridge the free speech rights of corporate broadcasters?

3. What is your view of the First Amendment rights of the listeners being paramount to those of the broadcasters as articulated by the Court in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969)?

4. Do you see a problem when corporations are treated as equal participants, with every right to use their First Amendment rights to dominate public policy debates such as those that occur in state and local referenda?

5. Do you believe the Court should uphold state and Congressional limits on corporate political expression in order to equalize contributions to public debates?

6. Do you believe that a strict reading of the Constitution provides for the treatment of corporations as “persons” under the law for purposes of equal protection, freedom of speech or due process of law? And, if so, what in the Constitution’s text provides a basis for this belief?

7. Many observers complain that law firms representing large corporations routinely abuse the discovery process in order to delay and harass their opponents. Have you observed that phenomenon? If so, what should be done about it?

8. In 1986, in Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1 (1986) the Supreme Court (5 to 3) struck down a state regulation as violating a utility company’s “right of conscience” under the First Amendment. What makes the case particularly unsettling is its disconnectedness to opinions past and future. As Justice Rehnquist observed in his lengthy dissenting opinion in the case, “the two constitutional liberties most closely analogous to the right to refrain from speaking – the Fifth Amendment right to remain silent and the constitutional right of privacy – have been denied to corporations based on their corporate status.” Do you think it makes sense to attribute a right of conscience to a commercial corporation?

9. Would any trade agreement, such as GATT, NAFTA, or CAFTA ever require Senate ratification as a treaty?

10. Does the President have complete discretion to determine whether an international trade or other agreement must be submitted to the Senate for two-thirds treaty approval? If not, what are the criteria that determine when an international agreement must be submitted to the Senate for two-thirds treaty approval?

11. Are there limits on Congress’ power to strip federal courts of jurisdiction over a particular issue? If so, what are such limits?

12. Do you believe victims of defective products that meet federal standards should be limited from recovering damages from the manufacturers of the defective products?

13. Do you believe Congress should federalize and pre-empt state products liability common law in any or all sectors?

14. Plaintiffs’ trial lawyers have been blamed by their corporate critics for all sorts of problems with the economy and legal profession. Do you believe that those representing injured persons in product liability and medical malpractice cases are harming America?

15. So-called tort-reform is aimed at restricting the amount of non-economic damages, such as pain and suffering, a party can receive. Are you concerned that this interferes with the traditional role of juries and judges to find facts and mete out appropriate justice?

16. Do you believe the use of the government contractor defense should be limited in nonmilitary procurement? If so, how?

17. Some people say the Ninth Amendment can play no substantive role in protecting rights, that it’s merely a statement of principle or reminder of limited government. Do you agree?

18. A number of legal scholars argue that the 11th Amendment has been interpreted by the Court to shield states from liability for wrongdoing in a way that blatantly contravenes the original intention of the Amendment. Are you familiar with that scholarship and do you find it persuasive?

19. In what circumstances, if any, is it appropriate for a contractual arbitration clause to contract away substantive contract law, tort, or statutory rights? For instance, can an arbitration clause require arbitration of a worker’s Title VII rights and at the same time limit the worker’s compensatory damages to $200,000? Can that same clause require the loser to pay the winner’s attorney’s fees? Can that clause require that the parties to arbitration bear their own attorney’s fees?

20. Describe the presumption against preemption of state law. Does it apply in some or all instances where federal law is said to preempt state law?

21. Is the presumption against preemption of state law (by federal law) similar to the plain statement rule that demands that Congress speak with unmistakable clarity if it wishes to override the states’ sovereign immunity? If the presumption against preemption is not similar to the plain statement rule, explain how it is different?

22. How is the presumption against preemption applied in cases where federal regulatory law (regulating, for instance, drugs, boats, pesticides, motor vehicles, and the like) is said to preempt state tort law that provides monetary remedies to compensate for injuries caused by a product that the federal government regulates?

23. Do you believe Congress should pre-empt the state-law-based medical malpractice system?

24. What are your views on the “American rule” as opposed to the English rule under which the losing party in litigation generally pays the winner’s costs, including attorney’s fees?

25. What has been your reaction or views on Congressional funding levels for federally funded legal services programs over the last two decades? Should government be responsible for funding representation for poor people in civil litigation where important property or liberty interests are at stake? Or should that be mainly or entirely a private function?

26. Some scholars and judges believe that “Originalism” is the only principled method of constitutional interpretation. Do you agree?

27. Do you believe that a declaration of war by Congress is Constitutionally required for the United States to engage in war?

28. Does a Congressional delegation of the war-making discretion to the President in the form of a war resolution meet the test of of Article One, Section Eight of the Constitution?

29. What level of equal protection scrutiny was applied in Bush v. Gore, 531 U. S. 98 (2000)?

30. What is the precedential effect of Bush v. Gore? In other words, what kinds of equal protection claims does Bush v. Gore control or apply to? After Bush v. Gore, may a political entity (city, county, state) holding an election use more than one type of voting methodology (paper ballots, standard machines, punch cards, etc.) knowing that the error rates (whether through undercounts or otherwise) are different from one methodology to another?

31. Is there a need to amend our open government laws to make the President subject to them in whole or in part? Would such amendments be constitutional?

32. Do you believe arguments before the Supreme Court should be televised in the way C-SPAN televises Congressional deliberations?

33. In your view, is the Freedom of Information Act functioning properly at this time? If not, what are the major problems facing the Act?

34. In Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598 (2001) case, the Court rejected the argument that a party that has fa
iled to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change (the catalyst theory) in the defendant’s conduct is entitled to attorney’s fees. Does the rejection of the catalyst theory of fee recovery in the Supreme Court’s Buckhannon decision apply across-the-board to federal fee-shifting statutes? If not, to what kinds of fee-shifting statutes is it likely to apply and to what kinds is its application more doubtful?

35. Brian Wolfman, Director of the Public Citizen Litigation Group notes, “The Bush administration says that Buckhannon applies to [Freedom of Information Act] FOIA cases, even though Congress stated explicitly, when it enacted FOIA, that fees should be available when FOIA cases settle. The Bush Justice Department has consistently argued to expand Buckhannon to every pro-consumer and civil rights statute in every conceivable situation.” What approach (or approaches) to statutory construction of Congressional enactment was evident in the Supreme Court’s Buckhannon decision? How would you describe the reliance on (or lack of reliance on) legislative history in the majority’s reasoning in that case? Do you believe the Bush Justice Department is applying the Buckhannon decision correctly?

36. From both a legal (constitutional) and practical perspective, what is your view of the trend in the federal judiciary toward releasing more of its opinions in “unpublished” form, i.e., where the relevant court accords no precedential effect to the decision for other cases?

37. Should federal judges attend seminars which are funded by private corporations (or by foundations that are funded by such corporations) that have matters of interest to the corporations before the courts?

38. Do you believe a government attorney, in a subordinate position, should be forced (under penalty of discharge) to work on a case or argue a position that he or she believes is illegal, unconstitutional or unethical? Or should government lawyers have a “right of conscience” like other professionals?

39. What kinds of participation in civic life may federal judges continue to be involved in once they assume their judicial positions?

40. How many hours or what percent of their work time do you think partners in major firms should devote to pro bono work each year?

41. How many hours on average did you bill per year as a partner and at what rates?

42. How many hours on average did you bill per year as an associate?

43. What was the nature of your pro bono work and approximately how much time per year did you devote to pro bono work?

44. Corporate attorneys and legal scholars have written books and articles decrying unethical or fraudulent billing practices in large corporate law firms. An article in the Summer 2001 Georgetown Journal of Legal Ethics titled Gunderson Effect and Billable Mania: Trends in Overbilling and the Effect of New Wages states that unethical billing practices are “a pervasive problem in law firms across the country” – do you agree?

45. Did you ever observe unethical billing practices when you were in private practice?

46. If so, what was the nature of and who were the protagonists of such practices?

I hope these questions, whether asked orally or submitted to the nominee in writing for response, spark a robust, constructive debate between the Committee members and the nominee. Such exchanges should provide the Senate and the larger public with insights into how Judge John G. Roberts will, if confirmed as Chief Justice, perform his duties.Thank you.

Ralph NaderConsumer Advocate and author of theTHE GOOD FIGHTDeclare Your Independence & Close the Democracy GapHarperCollins Publishers

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