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Bar None
by Tova Wang
This week, the House is expected to consider Republican-backed legislation that would impose a $250,000 cap on damages for pain and suffering in suits filed against doctors, health maintenance organizations and manufacturers of drugs and medical devices. The bill, which President Bush called for in his State of the Union address, is the latest installment in the Republican Party's ongoing war against lawyers of all kinds. The intended targets in this particular phase of the campaign are personal-injury lawyers, but the fight is much broader than that.
Members of the Bush administration, particularly Attorney General John Ashcroft, seem to hold a view of criminal lawyers and the criminal-justice system straight out of Hollywood rather than the actual courtroom. They appear convinced that crafty, unscrupulous lawyers routinely coach suspects and witnesses or use "technicalities" to help evil-doers escape punishment, Law and Order-style. Such misconceptions may explain their enthusiasm for military tribunals (where constitutional protections are restricted), their eagerness to designate suspects as "enemy combatants" (who have no right to an attorney) and their secret, incommunicado detainment of hundreds of immigrants without filing charges against them.
But if the administration officials have shown contempt for the criminal justice system, there is little doubt that their dislike for personal-injury lawyers is something special. To listen to members of the administration, you'd think that the folks who represent people injured by corporations in industrial-pollution or product-liability cases are pretty much dedicated to destroying American business and health care. In the past two years, Bush and his congressional allies have written into federal law new limits on the public's ability to sue airplane manufacturers, drugmakers and builders of anti-terrorism devices. To top things off, congressional Republicans are now pushing to provide new protections that would limit the liability of asbestos manufacturers.
Lately there have been reports that the Republican National Committee is gearing up to go after Sen. John Edwards (R-N.C.) based on his background as a successful lawyer. Of course, the reality of Edwards' legal achievements before entering public life make it a little more difficult for Bush to demonize the senator's former profession in one all-encompassing stroke: Among Edwards' various nefarious deeds while practicing were winning large verdicts for a 5-year-old whose intestines had been sucked into a swimming pool drain and for a child who suffered brain damage because of an obstetrician's error.
It's hard to believe that the administration's anti-lawyer rhetoric is simply retribution against the Trial Lawyers Association for their donations to the Democratic Party. A more likely explanation is that the Republican Party's lawyer-phobia is symptomatic of a troubling lack of respect for -- and lack of faith in -- the American justice system.
Our legal system, both civil and criminal, has always been based on the concept of an adversarial structure. Both parties in a dispute are entitled to vigorous representation in telling their sides of the story. This approach has worked well for more than 200 years in the United States (and in Britain for many years before that).
Yet one could be forgiven these days for assuming that Bush and the Republicans believe this system doesn't work at all. Perhaps the conservative mistrust of lawyers stems from a suspicion that lawyers, and especially trial lawyers, are distorting something far more important than our justice system: our profit-making system.
Whether or not their mistrust originated with a dislike for personal-injury lawyers specifically, administration officials have shown themselves to be suspicious of almost everyone in the legal profession. Even prosecutors aren't to be trusted to do their jobs independently: Ashcroft's Department of Justice has been increasingly involved in determining when local prosecutors should seek the death penalty. Rather than allowing for local decision making -- a highly prized value in other areas of conservative thought -- Ashcroft has felt free to override the choices of district attorneys and demand that they seek the death penalty in certain cases. Diverging dramatically from the practice of past attorneys general, he recently ordered that 28 defendants face execution in cases where professional prosecutors rejected recommendations for the death penalty or decided not to seek it.
Our judicial system is one of the features of American public life that distinguishes us from other, less democratic countries that we routinely condemn (and sometimes invade). Most Americans rightly take pride in the adversarial nature of that system. Bush and his administration should, too -- and they should stop making a political habit of trying to debase it.
Tova Andrea Wang is a program officer and special counsel for The Century Foundation.
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