This Time It's Personal

Sorry, there's no Frank Rich column this week, so we'll have to turn our attention to something else. Fortunately, we've got options.

One fun story in the past couple of days has been Robert Bork's latest hijinks. You remember Bork, the far-right wing judge Reagan nominated to the Supreme Court who was rejected by the Senate (back in the days when a Democratic Senate would dare to stand up to a Republican president). Ever since, he's been a pillar of conservatives and those even further right than that. He's had various positions over the years, but one that seems relevant today is his position on tort reform, particularly when it relates to personal injury. He's for tort reform and against "excessive" personal damages. In fact, just this week, Bloomberg was quoting a few of his positions.

In a June 2002 article in the Harvard Journal of Law & Public Policy, Bork suggested there might be instances where punitive damage awards are excessive.

"Proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate," Bork and a co-author wrote in an article that discussed Congress's power to regulate commerce.

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the "expensive, capricious and unpredictable" civil justice system in the U.S.

"Today's merchant enters the marketplace with trepidation -- anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates," they wrote.

And why was Bloomberg reviewing Bork's positions? Because he's suing the Yale Club. It seems a year ago, he was to deliver a speech and fell down when climbing the dais. He hurt his leg, but he was able to continue in his presentation of the speech, and he left the Yale Club on his own. Now, a year later, after he's experienced continued problems with his leg injury, he's suing the club for a million dollars to cover injuries and punitive damages.

It's obvious why it's OK for him to take this step now when he clearly has been against exactly this kind of potentially frivolous suit in the past. It's because it happened to him. This time, he's the injured party, and in all the cases he's criticized, he wasn't. Justinian Lane at TortDeform compares Bork's suit to the much-derided McDonald's spilled coffee suit, and on the surface, there are remarkable similarities. But Lane leaves out the obvious difference between the two. Bork didn't spill the coffee--if he had, all indications are that he would've had no concern about suing McDonald's for punitive damages. But since it's some woman who Bork didn't even know--why should she get any special treatment?

Others might compare to Vice President and Mrs. Cheney's new grandson, born to their daughter and her lesbian partner. Based on the positions of the vice president and his supporters regarding a Constitutional amendment against same-sex marriage, one might expect him to have a problem with a child born to lesbian parents. But, of course, it's simply not an issue when it's his grandchild.

It remains to be seen whether Bork will change his position on frivolous lawsuits. The next time someone else is in a similar situation, he may find some sympathy for their plight. But I wouldn't count on it.