Tuesday, April 17, 2007


Someone forwarded me an article which recently appeared in the highly respected National Review (Online). It was a re-trashing of me, based upon an opinion that I had written while on the United States District Court some 15 years ago in the Haines case. Also, I haven't served as a judge for 11 years. What a proud moment in journalism that must be! But in all fairness, putting aside the venom in the article, most of it is true. I was criticized by the Court of Appeals, reversed and was removed from the case, and nonetheless, despite my obvious shortcomings was nominated and confirmed for a seat on the Third Circuit Court of Appeals.

The language which prompted my dismissal from the case (after several failed tries by the tobacco defendants) was the following:

"All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!

As the following facts disclose, although there may be some rising pretenders to the throne, the tobacco industry may be the king of concealment and disinformation."

At my Senate confirmation hearing, I even conceded that if given the opportunity I would probably take that language back if I could (although convinced then and now of its accuracy), because I recognized that despite its truth, it might not be appropriate language for a court opinion, and certainly not, if it was going to cause my removal from cases that I had presided over for almost 10 years.

But in retrospect, strangely enough, though criticized, reversed and causing my removal, I think the decision in the Haines was probably the most important decision of my career. I was informed by Dr. David Kessler that it launched the FDA's investigation into tobacco; a TV documentary suggested that it was the basis of the federal government's case against the industry, and many lawyers representing the states in their claims against the industry (resulting in the largest settlement in history) credit my decision with being the catalyst for their suits.

My decision is characterized by NR as a historical example of "liberal judicial activism". The Court of Appeals found it to be wrong, and I agree with its decision in every respect, except the basis for my removal. But I fail to see what makes it either "liberal" or "activist", unless rulings against the tobacco industry automatically fall under those labels. Also, fairness might have prompted NR to include the following quote from the appellate opinion---although admittedly inserted to soften the blow of my removal:

The district judge in this case had been a distinguished member of the federal judiciary for almost 15 years and is no stranger to this court; he is well known and respected for his magnificent abilities and outstanding jurisprudential and judicial temperament. On the basis of our collective experience, we would not agree that he is incapable of discharging his judicial duties free from bias or prejudice.****

Finally, the judge who authored that opinion removing me from the case was the staunchest supporter of my subsequent nomination to be a member of the very court upon which he served. Surely NR can find some active judges engaged in activism. If not, they might want to review the opinions of the Rehnquist Court which declared unconstitutional more acts of Congress than any Supreme Court in history.

1 comment:

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