President Obama is whittling down his list of Supreme Court candidates and will have a choice this month. But the face of the federal courts is changing under President Obama. I’m hijacking the Baltimore Sun’s article on Monday but changing the focus to the subject of this blog: personal injury cases. Oh, and yeah, I completely disagree with the entire premise of the article.
The focus is on the replacement for Justice John Paul Stevens, giving President Obama the opportunity to select his second Supreme Court judge this month. But the impact of a new Supreme Court judge on personal injury cases will most likely be relatively insignificant, at least in the short term. Riegel v. Medtronic was a 8-1 blowout. Wyeth v. Levine was decided by a comfortable enough 6-3 margin. A new judge is not going to change the court’s rulings in Bell Atlantic v. Twombly and Iqbal v. Ashcroft. Regardless of whether Elena Kagan or Glenn Beck is chosen, I don’t think there is going to be a significant difference in how the Supreme Court deals with product liability cases.
For personal injury lawyers, the greater concern than who is on the Supreme Court is who the trial judge is. Clearly, in accident, malpractice and product liability cases, the trial judge you have really does matter, particularly on Daubert issues and other evidentiary rulings. Judges have a lot of discretion on what comes into evidence at trial. Let’s face it: President Obama’s judges are more likely to allow plaintiffs to admit evidence than judges appointed by President Bush. Obviously, this overgeneralizes but the point is true.
The Sun suggests that Obama is changing the face of the federal judiciary. But, in terms of new sitting judges, President Obama has not gotten very far. He has only appointed 24 judges: one Supreme Court justice, nine appellate judges, and 14 trial judges. Not exactly the major makeover that is the premise of the Baltimore Sun article.
Sure, Judge Andre Davis investiture to the historically archconservative 4th Circuit got everyone excited/depressed of a new court, but Judge Davis was only the second judge nominated by President Obama that was confirmed by the Senate. Changing less than 10% of a court is not a reconstruction. It is barely a facelift.
Of course, if President Obama gets the judges he has nominated confirmed, it will begin to change the relatively conservative makeup of our federal judiciary. But, as the Sun points out, President Obama is not exactly appointing wild haired liberals to the bench, either, much to the chagrin of wild haired liberals.
It is amazing to me how unpoliticized our selection of judges is in Maryland in contrast to the federal government. Three out of seven of the judges on the Maryland Court of Appeals were selected by Governor O’Malley. Now that is a transformation! Still, the direction of the court remains relatively unchanged. The court was somewhere between moderate and conservative before O’Malley and still is today.