Bush vs. the trial lawyers.

Bush vs. the trial lawyers.

Trial Balloon

Edwards blames big business; Bush blames lawyers.

Thursday, President Bush went to North Carolina to blame rising health care costs on malpractice lawyers. In a conference call with reporters and in Senate floor speeches Thursday and Friday, Sen. John Edwards, D-N.C., fired back. The 2002 elections are heating up, the 2004 presidential race is underway, and Bush has made his first risky wager: He's trying to counter the Democrats' two-sided issues with a three-sided issue.

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A one-sided issue is one on which the country overwhelmingly agrees. Terrorism is a one-sided issue. So is education funding. So is supporting charities, religious or not. A two-sided issue is one on which each party clearly defends one side and attacks the other. Tax cuts are usually a two-sided issue. So is environmental regulation. So is privatizing Social Security. A three-sided issue is a two-sided issue into which a third viewpoint has been injected. The debate between cutting taxes, spending more on programs, and maintaining taxes in order to pay off public debt is a three-sided issue. So is the debate between censorship, free speech, and parental control of what children can see.

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

A one-sided issue is what you reach for when you want peace. A two-sided issue is what you reach for when you have the advantage and you want a fight. A three-sided issue is what you reach for when your opponent has the advantage and you want to seize it from him.

In the summer of 2001, Bush was getting hammered on a bunch of two-sided issues. From tax cuts to health care to the environment, Democrats painted him as a servant of big business. Then came Sept. 11. All the two-sided issues were wiped out by a one-sided issue, just the kind at which Bush excels. His dad was sheepish and clumsy about voicing collective values. Bill Clinton looked as though he was lying even when he was telling the truth. Not Bush 43. He jumped on the terrorism issue and rode it to stratospheric approval ratings. Along the way, he mixed in one-sided classics such as leaving no child behind and loving a neighbor like you'd like to be loved yourself.

Now things have gotten sticky again. The terrorism debate has advanced from fighting al-Qaida to thornier questions of resource allocation and bureaucratic reorganization. The economy is shaky, the stock market is in the toilet, and Democrats are pounding Bush over corporate corruption. This time, he isn't just pleading for unity. He's fighting back.

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The issue Bush has seized on—twice in Alabama on July 15, and twice again in North Carolina Thursday—is tort reform. He has sworn up and down that he's getting tough on corporate cheaters, but polls show most Americans don't believe him. He needs a new culprit to attack, one that is as unpopular as thieving executives, more plausible as a target of Republican wrath, and capable of absorbing some blame for the country's economic troubles. That target is lawyers. "This is a way to change the subject of the economic debate from what's going wrong in the markets and at corporations to what the president is doing to fix things," a Bush adviser told the Washington Post.

The beauty of attacking plaintiffs' attorneys—"trial lawyers," as Bush likes to call them—is that they oppose the GOP on issue after issue (environmental litigation, terrorism insurance, investor lawsuits) but are hired guns. They lack the populist resonance of their clients. If you've been cheated by a CEO or refused treatment by an HMO or exposed to carcinogens by a polluter, people feel sorry for you, but nobody feels sorry for your lawyer.

In his speech, Bush exploited this gap, distinguishing the interests of malpractice attorneys from the interests of policyholders, taxpayers, and plaintiffs. "You pay either as a patient or you pay as a taxpayer," said the president. "Frivolous lawsuits drive up the cost of government health programs by over $25 billion every year. … What we want is quality health care, not rich trial lawyers." These attorneys don't really represent ordinary people, Bush suggested: They just "fish" for clients, and "the current system often doesn't serve the patient. … Sometimes the lawyers take up to 40 percent of the verdict—40 percent."

If trial lawyers don't fight for anyone, whom do they fight against? Not big business. They persecute "small business owners," says the president. In the context of medicine, they persecute the "good men" who cure the sick. "We want to help doctors to heal, not encourage lawyers to sue," Bush argued earlier this year. On this view, the malpractice attorney isn't just a hired gun. He's inherently the bad guy.

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How do Democrats answer this attack? They don't. They simply take the lawyer out of the picture. You'd think this would be particularly hard for Edwards, since he is a malpractice lawyer, and a rich one at that. Surely that's one reason why Bush went to Edwards' state and complained about its liability insurance rates. But Edwards is an expert at taking himself out of the picture, because that's what an artful plaintiff's lawyer does. He focuses relentlessly on his client, forcing the jury—or in this case, the electorate—to choose between a poor plaintiff and a deep-pocketed defendant. He reduces the cast of characters from three to two.

Edwards' technique was on display on the Senate floor and in his conference call. He described "families whose children can no longer walk" or "have been blinded for life." Better yet, he let one of his clients do the talking. Christopher Griffin, whose daughter recently died after Edwards won a huge damage award for her family in a medical error case, excoriated the Bush administration's suggestion that plaintiffs such as he were "lottery winners." "Every time I go to my daughter's grave, it's hard to feel that way," said Griffin.

If Edwards can reduce tort reform to a two-sided issue, he can add it to the Democrats' populist arsenal. Bush's speech "fits a pattern with [this] administration when it comes to the interests of regular people competing with the interests of big corporations, insurance companies, HMOs, and energy companies," Edwards told reporters. To his colleagues, he lamented, "At a time when Americans are demanding more corporate responsibility … the president has gone to North Carolina today to ask for less corporate responsibility, to make it easier on insurance companies, and to make it harder on victims."

This isn't what Bush had in mind when he started this fight. But that's what you get for arguing with a lawyer.