Our nation’s legal system is based on deeply rooted constitutional principles and traditional ideals which serve as a beacon for justice throughout the world. And while the framework that we have in place remains a model for emerging democracies, we must not lose sight of the core values on which our rule of law is based. Reform of certain legal issues, such as the misplaced and erroneous holding in Roe v. Wade, must be – and will be – addressed as we continue to appoint judges who are mindful of their role as interpreters, not creators, of the law. However, I believe certain other aspects of legal reform merit Congress’ attention.
1. Respect for Private Property Rights. One of the guiding principles of our nation is the respect that we have accorded the ownership of private property. We must stop the government’s involuntary taking of private property through eminent domain beyond traditional notions of “public use.” Through the Supreme Court’s ill-advised ruling in Kelo, the specter of eminent domain now hangs over all private property. Our citizens are fearful that local, state or federal agencies will determine that a taking is necessary for a “public benefit”, such as redevelopment for an upscale private community. This is a vague concept much different than the constitution’s standard of “public use” for roads, bridges and other infrastructure needs. This expansion of eminent domain runs afoul of our bedrock constitutional principles.
2. Clear Standards for Punitive Damage Awards. Punitive damage awards are spiraling out of control, create uncertainty and detrimentally impact the American economy. It is not enough for courts to apply vague standards of due process when reviewing punitive damages awards. We must enact smart legal reform to provide litigants with a much clearer picture of the potential liability they face in defending claims. Too often our system creates damages awards that are the result of passion and prejudice, leading to an unforeseeable economic windfall.
3. Broad Authority to Shift Attorneys’ Fees Awards. Our rule of law is premised on the notion that each party is responsible for paying its own attorney. The “American Rule” of attorneys’ fees does create access to the judicial system and some degree of predictability. However, federal judges must have broader authority to shift the payment of fees against litigants who file unsubstantiated claims, misuse the legal process or unnecessarily delay legal proceedings. I would favor more liberal rules than currently exist and would examine more closely the issue of fee-shifting in statutes which create private rights of action.
4. Use of Special Masters. Too often, legal disputes become a battle of highly-paid – and biased – expert witnesses. We need to vest judges with broader authority to retain independent, court-appointed special masters to assist the court with its fact-finding function, to render impartial opinions on critical issues of damages and liability, particularly when complex or highly technical issues are involved.
5. Appointing Federal Judges. Our system of appointing and confirming federal judges is broken. The president has wide discretion in choosing competent and qualified appointees, and the Senate should not be permitted to impose litmus tests and torpedo otherwise qualified judges for political expediency. Both parties in Congress are guilty of using federal judges for political gain, and this charade must end. The system results in unnecessary delays in confirmation hearings and discourages highly qualified candidates from serving on our judiciary.
I am a strong believer that our rule of law is a model for the rest of the world, but we can continue to improve on many facets of our legal system. Out-of-control damages awards and the expansion of core constitutional principles by select judges are threatening our citizens’ faith in the system. Our legal system must be efficient, fair and predictable. It is time that Congress focused on enacting sensible policies to uphold these core values.