- The Washington Times - Thursday, February 27, 2003

Normally, on nights like this, so many suits fill the ornate Senate reception room on the second floor of the Capitol that you could stock half-a-floor at Brooks Brothers. Late-night sessions on critical legislative matters, when both party leaders play a tactical game of cat and mouse and large numbers of senators participate in debate, usually attract a big crowd of K Street lobbyists.
Yet last night, while the drama's high and the floor is packed with senators, the reception room is empty, leaving the historic portraits of Henry Clay, John Calhoun and Daniel Webster to hang alone in eerie silence.
The Senate is engaged in a ferocious debate on the nomination of Miguel Estrada for a position on the federal appeals court. Yet, the normal contingent of business lobbyists is missing in this fight they seldom engage in judicial confirmation battles. Their traditionally effective voice is muted in these debates.
There are reasons why business groups have traditionally stayed on the sidelines. Some believe it's an overly partisan activity. They fret about involvement in "abortion politics." Others miss the connection between their interests and the federal bench. But changes in the American public policy-making system over the last several years argue that they should reassess their reticence.
American business spends incalculable dollars every year on public-policy advocacy in this city. Their tactics include lobbying, regulatory filings, grass-roots programs and sophisticated public relations campaigns. They hire former members of Congress and staff to help navigate the process, conduct research to hone the message and purchase advertising in the media that is read, heard and watched by policy-makers. The most sophisticated try to orchestrate the process like a conductor directs a symphony.
Yet, given this level of investment and sophistication in the process, it's a mistake to balk when it comes to confirming judges. By not engaging on judicial appointments, American industry is ceding the field to shrill anti-business advocates. It is like the conductor choosing to keep a third of the orchestra silent. Detachment may not have taken a toll in the past, but times are changing.
One of the least noticed but most significant trends in the American government over the past decade is the increase in policy-making by litigation. Tobacco, securities and consumer credit are among the most recent examples of industries subject to new rules, regulations and financial sanctions (read taxes), imposed not by legislators or new laws, but through activist judges and consent agreements. This parallel lawmaking process succeeds because the traditional system (i.e., Congress and the president) get bogged down in legitimate stalemate because of a lack of public consensus.
Enter the litigation industry. Lawsuits, consent decrees and other legal judgments set the ground rules for how many sectors of the U.S. economy now operate. Why? In part, it's because of a proliferation of judges many appointed during the eight years of the Clinton administration, in cooperation with the trial bar that view their role as policy-makers. Many anti-business groups are also gearing up to promote regulation through litigation because they believe Republican control of Congress and the White House will stymie their agenda. This trend will escalate until the Senate confirms more federal judges that reject the view that they are lawmakers.
Ensuring the effectiveness of tort reform legislation is another reason why businesses should get more involved in judicial confirmations. It's ironic that businesses spend millions of dollars a year advocating tort reform in Congress, when activist judges could overturn these efforts by granting litigation attorneys new causes of action.
American businesses want predictability in the public-policy environment. Without it, the best strategic plans never get implemented. Part of achieving this kind of stability comes from reducing regulation by litigation.
Helping install judges who leave the lawmaking function to Congress should become a part of the business legislative agenda in Washington. The trial bar is actively involved in the process, as are a host of anti-business interest groups, promoting activist judges that view the courts as another venue for policy-making.
Given their investment and sophistication in other areas of public policy, American businesses should recognize the subtle shift occurring in the process. Federal judges have a significant impact on the bottom line. So, the next time a big judicial battle rages on the Senate floor the business community should keep company with Clay, Calhoun and Webster by participating in all aspects of a process that affect their interests.

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