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Better Judges, Better Courts

In a column written expressly for Pajamas Media, Rudy Giuliani declares that judges should be "interpreting the law instead of legislating from the bench" and vows that as president he would nominate strict constructionist judges with "proven fidelity to the Constitution." The former New York mayor and front-runner for the Republican presidential nomination has other legal reforms in store as well... By Rudolph W. Giuliani

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July 18, 2007 - 1:00 am

The most lasting legacy of many presidents can be found in our courts and the opinions authored by the judges they appoint.

That’s why one of my 12 commitments to the American people is to reform our legal system and appoint strict constructionist judges who interpret the law instead of legislating from the bench.

As President, I will nominate strict constructionist judges with respect for the rule of law and a proven fidelity to the Constitution – judges in the mold of Justices Scalia, Thomas and Alito and Chief Justice Roberts.Americans are concerned that special interests and partisan politics are compromising the integrity of our legal system. In too many cases, there is no accountability and no evident common sense. That’s why our nation needs to eliminate frivolous lawsuits while ensuring that responsible judges are appointed to our courts.

Some people believe judges should “evolve” the law to reflect short-term political and cultural trends. I disagree. The individuals responsible for updating our laws are our elected representatives. Federal judges – who are appointed for life – are responsible for interpreting our laws. And the Constitution can only be amended by the American people.

When I worked for President Reagan as his Associate Attorney General – the third highest ranking official in the Department of Justice – I participated in the selection process for Federal Judges, United States Attorneys, and Marshals, working closely with Ted Olson, who went on to become U.S. Solicitor General and John Roberts, who is now the Chief Justice of the Supreme Court. The goal was to appoint responsible judges guided by a constitutional compass.

As President, I will nominate strict constructionist judges with respect for the rule of law and a proven fidelity to the Constitution – judges in the mold of Justices Scalia, Thomas and Alito and Chief Justice Roberts.

Today, one of the great barriers to appointing good judges is the Democratic-controlled Senate. There are currently 48 vacancies in our Federal Courts. And if you look at the 18 federal judges the Senate has confirmed this year, you’ll see that confirmation can take anywhere from two to 11 months from the Senate’s hearing date.

When it comes to the judicial confirmation process, I believe that there is a time for debating and there is a time for deciding. As president, I will call on the Senate to amend its rules to ensure a fair up or down vote for judicial nominees within 90 days.

Reform must also take place throughout our nation’s courts.

To reduce the impact of the Trial Lawyer Tax, we should reform the system by adopting rules that discourage frivolous lawsuits, such as “loser pays.”A family dry cleaning business was recently dragged through two years of litigation seeking $54 million as compensation for a lost pair of pants. To make matters worse, the person who brought the irresponsible lawsuit was a judge. And though the family won their case, they spent more than $100,000 in the process.

This is just one example of the real costs of frivolous lawsuits. Civil litigation consumes 2.2 percent of America’s gross domestic product, more than twice that of other industrial countries. The annual price tag on a family of four is $9,827 per year. In the health care industry, many doctors report ordering unnecessary tests to avoid frivolous lawsuits – in Pennsylvania as many as 93% of doctors – costing up to $100 billion annually. Doctors call this “Defensive medicine.” I call it a Trial Lawyer Tax.

To reduce the impact of the Trial Lawyer Tax, we should reform the system by adopting rules that discourage frivolous lawsuits, such as “loser pays.” The ideal would be the English Rule, in which the losing party pays the winning side’s legal fees. This may prove to be too much of a change for our society, but we should at least shift the burden of proof to the losing party to show good-faith basis for their lawsuit. And Judges should also be able to quickly dismiss frivolous lawsuits.

Our nation’s legal system should always be held above special interest and partisan politics.Civil lawsuits also cost too much and take too long. One federal court is known as the “Rocket Docket” because it has enacted local rules and procedures that successfully reduce the time and cost of suits. Every court should adopt similar rules because every court should be a Rocket Docket.

We also need to establish limits on punitive and non-economic damages-which are too often used to turn the legal system into a lottery system. After all, a major incentive to file a lawsuit over a lost pair of pants is believing you have a chance to win $54 million.

In Texas, lawmakers and voters implemented a $250,000 cap on non-economic damages such as pain and suffering against doctors in malpractice cases. The law translated into dramatically reduced malpractice insurance costs for doctors. Now there is a flood of doctors moving to Texas in order to escape the unnecessarily high cost of doing business in other states, while the number of lawsuits against doctors in Texas has been cut in half.

The bottom line is our nation’s legal system should always be held above special interest and partisan politics. Justice is serious business. Judges should judge. Making laws is the responsibility of an elected legislature. And amending the Constitution is the responsibility of the American people. Under my watch, it will stay that way.

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