This article of mine appeared in the September 29, 2016 edition of The Legal Intelligencer and is republished here with permission:
Presidential Candidates and the
Federal Bench's Future
By Daniel E.
Cummins, The Legal Intelligencer
September 29,
2016
With the
election for President of the United States set to take place on Nov. 8, and
fast approaching, here's a review of the legal background of the Presidential
candidates and their position on the selection of federal court judges and tort
reform.
Legal Background of Candidates
To some voters,
whether or not a candidate has a legal background may be a factor to be
considered in selecting the next President.
Democratic
Presidential candidate Hillary Clinton is a graduate of Wellesley College—where
she majored in political science–and Yale Law School.
While in law
school, she served on the editorial board of the Yale Review of Law and Social
Action. It was at Yale Law School where Hillary Clinton met her husband, Bill
Clinton, a fellow student. Hillary Clinton received her juris doctor degree in
1973.
Over the early
part of her legal career, Hillary Clinton focused on children's law and family
policy. At times in the 1970s, she has worked as a law professor at the
University of Arkansas School of Law. By 1979, she was working as a partner in
a law firm in Arkansas and worked with that firm until approximately the time
her husband was elected President in 1992.
Republican
Presidential Candidate Donald Trump began college at Fordham University in New
York City but eventually transferred and obtained a bachelor's degree from the
Wharton School of Finance and Commerce of the University of Pennsylvania in
1968.
Trump did not
attend law school. While not a lawyer, Trump presumably worked in close
proximity with many lawyers over the course of his career in business and real
estate ventures.
The Candidates on Selection of Federal Judges
The next
President stands to shape the future of federal law and its application by way
of the selection of federal court judges to fill many vacancies at all levels
of that court.
Perhaps most
importantly on the issue of selecting judges to fill the federal bench, the
next President will have an opportunity to fill the still vacant seat of the
late Justice Antonin Scalia of the U.S. Supreme court. Also, Justice Ruth Bader
Ginsburg is currently 83 years old and Justice Stephen Breyer is 78 years old.
As such, there may be additional opportunities to nominate other justices to
the Supreme Court during the next Presidential term.
The next
President will also have an opportunity to direct in which way the ideological
pendulum will sway for the next generation, either to the left or the right, by
filling many lower federal court vacancies with nominees of their choosing and
slant.
Earlier this
year, Trump released a list of potential U.S. Supreme Court nominees he would
consider in an effort to defeat any notion that he would not pick conservative
individuals to fill federal court vacancies. In a statement, Trump stated that
his short list of nominees was "representative of the kind of
constitutional principles I value." The list consisted of six conservative
federal appeals court judges appointed by President George W. Bush and five
conservative state Supreme Court justices appointed by Republican governors
from across the United States.
Commentators
anticipate that if Hillary Clinton is elected President, she will move toward
selecting progressive judges to the federal bench who will champion the goals
of environmentalists, labor unions, and racial justice advocates.
The Candidates on Tort Reform
Unlike recent
Presidential elections, the topic of tort reform, or curbing excessive
litigation, has not taken center stage this time around. Nevertheless, it
remains an important consideration in the selection of the next President of
the
United States.
To date, Trump
has not stated any concrete position on the topic of tort reform. However,
Trump is no stranger to litigation, whether it be as a plaintiff or a
defendant, thereby evidencing his belief in the civil justice system as a means
to secure justice and remedies. Thus, although tort reform is a favored topic
of conservative Republicans, it may be a difficult topic for Trump to push
given his own penchant for litigation.
Commentators
have noted that, historically Hillary Clinton has opposed tort reform efforts.
In the past, she has even been in favor of expanding tort law to allow victims
of gun violence to sue the gun industry for selling guns to criminals.
Accordingly, it
appears that the topic of tort reform will remain off the radar this campaign
season and questions remain as to whether it will come to the forefront during
the term of the next President, regardless of who is elected.
Be Heard With Your Vote
Whatever one's
position may be on the above topics, the most important thing is to exercise
one's constitutionally protected right to vote. The Democratic and Republican
candidates have strong and divergent views on the issues of the day, perhaps
the most compelling of which to litigators is the future of the federal bench.
A visit to the voting booth on Election Day will allow Pennsylvania litigators
to be heard on this all-important topic. •
Daniel E. Cummins is a partner and
civil litigator with the Scranton law firm of Foley Comerford & Cummins.
His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.