TorteDeForm

Kia Franklin

Lessons Sen McCain has learned from Pres Bush—part I

BushandMcCain.jpg

Sen. John McCain has officially earned an A in Prof. Bush's course on Tort Reform Tropes, 101. Maybe that's why they're embracing in this photo (source).

The Senator and presumed Republican party Presidential nominee spoke in Rochester, Mich., the other day. (Thanks, Matt at ThinkProgress, for pointing out and analyzing McCain’s statements and his track record on women's rights).

According to the Washington Post:

Although the Michigan audience was largely supportive, cheering McCain's pledge to provide easy health care access for veterans, the meeting started out with a few tough questions. McCain singled out a 14-year-old girl who questioned why he opposes eliminating the statute of limitations on lawsuits over workplace discrimination, arguing it amounted to opposing "equal rights for women."

"If you eliminate the statutes of limitations, and you make it unending, you may be violating the rights of the individuals who are being sued, whether they're a man or a woman," the senator responded. " I don't think you're doing anything to help the rights of women, except maybe help trial lawyers and others in that profession." (My emphasis added)

Haven't we heard this before? It's déja-vu all over again. McCain is using the same tactics Bush used to get elected: when in doubt, blame the trial lawyers.

When faced with a tough question about why people are being denied access to justice, say it's because that's the only way to stop the trial lawyers. Oh, and this will work no matter how inherently flawed, inane, or even insane your argument is at its substance. And for good measure you can sprinkle in some references to "evil in this world" to appeal to peoples' morals, thus creating the inference that all of your political stances are directed at combating that evil.

McCain's appeal to the breached rights of individual employers is strained from the start. First, the law does not create an unending statute of limitations--it clarifies that the statute starts running afresh with every new discriminatory act, such as the issuance of an inequitable paycheck based upon discrimination. Second, the defendant in employment discrimination claims is often a corporation and not an individual.

But even in cases in which the defendant is an individual, what is the right which McCain asserts is being violated? Is it the right not to be sued for discriminating against someone without getting caught within 180 days, even if you then discriminate over and over again after the 180 days are up? Even if it can be more cleverly articulated than this, does McCain really think one can compare the obstruction of some unsavory interest in evading responsibility to the infringement of a highly cherished right not to be victimized by discrimination and economic injustice? That's ridiculous.

So, McCain's not smarter than a twelve year old... but neither was Bush, and he got elected. The rhetoric works.

The "trial lawyers are evil" mantra addresses none of the values McCain touted in his speech to the Michigan audience. He told supporters that "evil still exists in the world" and "assails the great, animating truths we believe to be self-evident -- that all people have a right to life, liberty and the pursuit of happiness -- by subjecting countless human beings to abuse, persecution and even slavery." He observed that the "failure to [confront this evil] affects even those who are complacent with our own blessings and secure in our human rights," and pointed to this country's founding "belief in the inherent dignity of all human life [which] can only be preserved through shared respect and shared responsibility."

Of course that sounds great, but a true belief in those words would require McCain to recognize that discrimination is a form of persecution, and that the court system is a way for individuals to demand the "respect we are morally obliged to pay each other." As someone unlikely to face workplace discrimination, he would nonetheless feel called to confront the evil of discrimination and economic inequity. And his call for "shared respect and shared responsibility" would compel him to acknowledge the assault to human dignitiy that is an unvindicated act of discrimination.

But it appears as though McCain has learned from Bush that matching your professed values with the political decisions you make would be no good at all. After all, It might help the trial lawyers.

Kia Franklin: Author Bio | Other Posts
Posted at 4:43 PM, May 08, 2008 in Civil Justice
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Comments

"When faced with a tough question about why people are being denied *access to justice*...sprinkle in some references to 'evil in this world'...thus creating the inference that all of your political stances are directed at combating that evil." (Emphasis added)

Gee Kia, for hating rhetoric you sure are good at throwing around the word "justice" in all your posts...

If I didn't know better, I'd think you were "creating the inference that all of your political stances are directed at combating [injustice]."

Posted by: Lawyer | May 8, 2008 5:59 PM

But they are pure evil. They are from an out of control criminal cult enterprise, that has taken charge of the three branches of government, running it solely in it rent seeking interest. The rule of law is an essential utility product. If it were electricity, it would be on 2 hours a day, with appliance destroying surges in rich areas, and 2 minutes a day in poor areas. The lawyer has the rule of law in utter failure.

All torts are pretextual, for the rent. Pretext means a false, wrongful use of the law.

Posted by: Supremacy Claus | May 8, 2008 10:00 PM

The reality is that nearly all the judges on the appellate courts are Republican appointees. When Clinton was president, the Republican Senate blocked his appointments from 1994-2000. In the W. Bush administration, these positions have been filled. Right now, every position on the Fifth Circuit and every federal judgeship in Texas is filled.

Conservative judges have no sympathy for anything but the most blatant case of overt, 1950s style discrimination. A law abiding business has no need to fear a discrimination suit unless what they did was really, truly, horribly wrong.

But this is not enough to satiate Republicans like McCain. They want to deny substantive cases of discrimination from being tried. No one denies that Ledbetter was paid less than men for the same work. A jury heard the evidence and concluded it was because of her sex. But Republicans are adept at using caveats and technicalities to deny justice. So now all the Lily Ledbetters of the world must discover and file suit for discrimination within 180 days or lose the right to contest ongoing discrimination forever.

Posted by: Texas Employment Lawyer | May 8, 2008 10:46 PM

"No one denies that Ledbetter was paid less than men for the same work."

The defendants deny it. For one thing, it's not true.

http://www.abanet.org/publiced/preview/briefs/pdfs/06-07/05-1074respondents.pdf

"So now all the Lily Ledbetters of the world must discover and file suit for discrimination within 180 days or lose the right to contest ongoing discrimination forever."

That's not true, either. They can also sue under the Equal Pay Act.

By why let facts get in the way of your smears?

Posted by: Ted | May 9, 2008 3:43 AM

"When Clinton was president, the Republican Senate blocked his appointments from 1994-2000. In the W. Bush administration, these positions have been filled."

Mr. Wiley:

President Clinton appointed 60 judges; President George W. Bush has appointed 54.

"A law abiding business has no need to fear a discrimination suit unless what they did was really, truly, horribly wrong."

Really? You mean to say that EVERY company that gets sued for discrimination is guilty of "really, truly, horribl[e]" wrongdoing? I didn't realize you trial lawyers had such self-restraint to only take sue those who have committed the "really, truly, horrible wrongs." Funny how the really, truly, horrible wrongdoers bear an uncanny resemblance to those with the really, truly, deep pockets. Just the other day I saw a Vioxx trial lawyer on his really, truly, horribly awesome yacht.

"But Republicans are adept at using caveats and technicalities to deny justice. So now all the Lily Ledbetters of the world must discover and file suit for discrimination within 180 days or lose the right to contest ongoing discrimination forever."

Mr. Wiley, the 180-day statute of limitation was *created* by a Democratic House of Representatives, passed by a Democratic Senate, and signed by a Democratic President (i.e., the 88th Congress).

Posted by: Lawyer | May 9, 2008 9:34 PM

Mr. Wiley, the 180-day statute of limitation was *created* by a Democratic House of Representatives, passed by a Democratic Senate, and signed by a Democratic President (i.e., the 88th Congress).

In W.O.W., we call this "wtfpwned."

Posted by: Joe Bingham | May 10, 2008 7:27 AM

Kia: I don't like the way you are being picked on. You are totally wrong, but so are the vile corporatist hypocrite lawyers bashing you.

The entire scheme is a rent seeking scam to plunder the public. Corporations pass on all costs.

If a wage is disparate for an employee, the best course is to learn the business. Sell the knowledge to the competitor for a higher price. If the work environment is hostile, as by pinching and rude remarks, the best course is to just smartly slap the face of the offensive pig. Feel free to turn the diamond ring palmward. These horrid, lying, left wing feminists should leave productive entities and the public funds alone.

There will come an executive with courage, prompted by the exhausted merchant class. He will declare the entire scheme a crime. The criminal cult hierarchy, including all federal appellate judges, get arrested by marshals, have a brief trial, and hang from the trees outside the court house, for insurrection against the Constitution. This was the course of events when the Medieval church's rent seeking got out of hand.

Posted by: Supremacy Claus | May 10, 2008 12:47 PM