Short Circuiting Justice at the Ninth Circuit Court

May 17, 2007

By Victor Smith - Finally, after eighteen disillusioning years of waiting for compensation for the Exxon Valdez oil spill, someone has called foul on the rank politics that have been obscuring and delaying settlement of the case.

On March 31 of this year, the public advocacy Community Rights Council (CRC) issued a press release titled "Exxon, Punitive Damages, and Judicial Junkets" that fingered Judge Andrew Kleinfeld, one of the three "randomly assigned" 9th Circuit judges, for having ties to Exxon.

According to CRC, "for more than a decade, Exxon Corporation has waged a comprehensive campaign against punitive damages awards.An important part of Exxon's punitive damages campaign has been to fund organizations such as [George Mason University's] Law and Economics Center (LEC) which hosts junkets for federal judges that focus on topics including punitive damages..This campaign paid off handsomely in December 2006, when [the 9th Circuit Court] reduced Exxon's punitive damages liability for the Valdez spill by $2 billion.Judge Kleinfeld.who wrote the opinion in favor of Exxon in December. serves on LEC's Board of Judicial Advisors and reports taking at least three LEC-funded trips in recent years."

Although Kleinfeld contends that Exxon's contributions to LEC and the junkets "are just small potatoes," some would disagree. According to Media Transparency, " George Mason University has been a magnet for right-wing money for over a decade..From 1992 through 1994 the University placed third among all academic and non-academic grantees."

These endowments fund LEC's "mission to educate judges in how to apply principles of economic analysis to the law. By 1991, the Center had provided such training -- with seminars held at resort locations to enhance their attractiveness -- to over 40 percent of the federal judiciary.with corporate and foundation sponsors covering 'all travel, lodging and meal expenses for the most powerful players in the legal system--judges.'"

As flipside.org explains, " George Mason University 's Law and Economics Center has as its mission to teach federal judges that the goal of the law should be to maximize the wealth of society by promoting the efficient use of scarce resources. Thus conceived, the law is no longer about the Constitution, or about ethics or justice. In this view, courts become an appendage of the market, promoting efficiency, not equity."

To get on LEC's board, it probably didn't hurt that Kleinfeld had been a long time admirer of the Federalist Society and organizations like the Institute for Justice. Like LEC, the Federalist Society and the Institute seek nothing less than to reshape the landscape of the U.S. judiciary by promoting right-wing judicial activists to positions of power who will push the country rightward and end government regulation of businesses. Think of it as an under-the-radar parallel to the Bush administration's scandalous politicization of our U.S. attorneys.

Putting LEC's agenda in context with present attempts to break up the 9th Circuit Court, imagine the opportunity to place corporate-favoring judges anticipated by the establishment of a new Alaskan court. Breaking up the 9th has long been the goal of Judge Kleinfeld and his Republican Alaskan boosters: Senator Ted Stevens, former Senator Frank Murkowski, and Representative Don Young, none of whom have been particularly vocal in pressing Exxon for a settlement. They must find it cruelly amusing that Kleinfeld's endless delays trying to reduce the lower court's settlement could serve double duty by making the Exxon case a poster boy for splitting up the court.

This is not that far-fetched, especially when you look at the corruption so much of the Alaskan Republican power structure engaged in with the oil companies to secure passage of Gov. Murkowski's oil tax bill that rips off the state for $2 billion annually. Why wouldn't one expect that the bribes and extortion extend to trying to save the oil companies several more billions on the Exxon case while at the same time avoiding a precedent for environmental accountability?

Make no mistake about it; avoiding the precedent of reasonable compensation to fishermen' is at least 51% of what Exxon has been shelling out the money for and what the hopefully soon-to-be-indicted Stevens, Murkowski, and Young have been shilling for. As evidenced by riders they passed in 2003 limiting the public's ability to sue over environmental issues in the Tongass National Forest , it is doubtful these three would favor giving fishermen a dime. In fact, they're pushing ahead for more development with less protection than was had before without even making sure Alaska 's fishermen are compensated for abuses that happened eighteen years ago.

A final question raised by CRC's news release is, "Why was it left to the eleventh hour (well, hopefully it's the eleventh hour) for a third party to blow the whistle on Kleinfeld?" Why didn't some Alaskan official do it, or one of plaintiff's attorneys? - as certainly this hasn't been a secret.

When Alaska wanted a certain outcome in the Bristol Bay price-fixing case the usual politicians jumped all over it. One must now discount their claims that the Exxon case was 'being left up to the courts'.

Likewise, plaintiffs may have questions about their own attorney's political involvement in the case. Last year, plaintiff's attorneys organized a political campaign, ostensibly to bring political pressure to bear on Exxon to settle. To accomplish this they hired Washington 2 Advocates, a Washington based right-wing Republican lobbying group comprised mostly of aides to former Washington Senator Slade Gorton. This was a foolish and hollow strategy, at best, because W2A wasn't going to do anything that would focus attention on Republican Congressmen who put the interests of their big-contributing oil companies before the public's interests.

Thank goodness for law enforcement though; there's nothing like an FBI raid to focus your attention. Perhaps the FBI will be able to tell us if it was just multiple cruel twists of fate that conspired to "randomly" place the fortunes of 35,000 victims of Exxon's negligence in the hands of Judge Kleinfeld: the judge with the big agenda that's not your agenda. If you are still confused by all the protestations of innocence and high integrity, just remember the old saying, "Whose bread I break, his song I sing." It is appalling that Kleinfeld is involved in the Exxon case.