Monday, October 10, 2016

ARTICLE: Presidential Candidates and the Federal Bench's Future

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


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