What Joe Nocera’s defense of BP leaves out

New York Times columnist bemoans failure of oil giant
to get its corporate life back

Pity poor BP.  In an act of noble corporate citizenship the oil company rushed to make amends for that little problem it encountered down in the Gulf of Mexico a few years ago – only to find itself picked on by those big bullies in the plaintiffs’ bar.

Hey, don’t laugh.  That’s the serious take of a serious columnist for a serious newspaper.  Joe Nocera of The New York Times is deeply upset that more than  three years after BP’s Deepwater Horizon drilling rig exploded, killing 11 (deaths for which the company pled guilty to multiple counts, including felony manslaughter), injuring 17 and setting off the worst environmental disaster in American history, BP hasn’t gotten its corporate life back, so to speak.

He writes:

BP is the best example I’ve ever seen of a company that actually tried to find a better way. Immediately after the spill, it set up a claims process to get money into victims’ hands quickly, without having to file a lawsuit. Though that process had its critics, it worked. Of the $11 billion BP has paid out in claims, $6.3 billion was paid through that process.

But BP did not set up this process out of the goodness of its heart.  It did so under pressure from the Obama Administration, and, as we pointed out in our comprehensive 2010 report, because such a process is required by federal law.  BP made sure the process was set up in a way that limited its exposure and obtained final releases of liability from victims for as little as possible.

         Contrary to Nocera’s insinuation, the process did not provide a magical solution which adequately replaced the right to seek redress in court.  Victims whose lives have been devastated by the spill had to make impossible decisions – accept a settlement without knowing how much the spill ultimately may cost them or take their chances in the court system where the deck might also be stacked against them.

Nocera never explains the criteria he uses to determine that the claims process “worked.”  In our report, we found serious problems, including:

● The way the administrator of claims was paid raised questions about whether he put BP’s interests ahead of victims’.

● Victims received insufficient information when their claims were denied or underpaid.

● To get any payment at all, victims had to sign away their right to seek compensation for future, unforeseen losses.

Nocera then takes a cheap shot at the judge, condemning him for once having been “a Louisiana plaintiffs’ lawyer …”  But here’s the thing about judges: they’re almost always lawyers.  And lawyers often specialize in one side or the other.  Does Nocera really believe that only a corporate lawyer can be objective?

          If so, he should be happy with the prospect of litigation in the Gulf Coast states.  The Fifth Circuit Court of Appeals, which would hear appeals from awards to victims, is chock full of judges with ties to the oil industry – judges like Jerry Smith, aptly characterized by AFJ President Nan Aron as

a former chairman of the Texas State GOP Executive Committee who once characterized the League of Women Voters as the ‘plague of women voters,’ and referred to the International Women's Year Conference as a ‘gaggle of outcasts, misfits, and rejects,’ with ‘perverted views.’ He was also an oil-industry lawyer, specializing in federal energy litigation – a category of cases he now frequently hears as a judge in the oil-soaked Fifth Circuit.

Perhaps most alarming, Nocera snidely dismisses the notion of helping people who were harmed “indirectly” – seeing that as nothing but a loophole for those bad, bad plaintiffs’ lawyers to take advantage of.

But “indirect” harm can mean a tourist business bankrupted because people changed their vacation plans.  Or it can mean damage to a seafood business caused because people just didn’t want to eat seafood from the Gulf.  The federal law governing damages caused by oil spills allows victims to recover for exactly this type of indirect harm.

And, as we noted in our report, “the disaster is hurting more than people’s pocketbooks.  Surveys of residents show that depression is up 25 percent, and domestic violence has increased.”

But Nocera chooses to smear anyone not directly impacted by polluted beachfront or seafood as “basically bystanders [who] now have their hands out…”

And what is behind this outpouring of bile?  Nothing but Nocera’s own personal experience covering a very different kind of case nearly two decades ago.  He covered mass litigation against a manufacturer of silicone breast implants, and felt himself to have been an eyewitness to the abuses of plaintiffs’ lawyers.  (Even here, Nocera’s account is incomplete.  He cites an Institute of Medicine review claiming that there was insufficient evidence to support allegations about systemic illnesses allegedly caused by the implants.  But, as AFJ first noted in a 2006 report, the same review found a high rate of localized problems, including rupture of the implants, pain, disfigurement and serious infections.)

“We all have experiences that shape our view of the world, and this was one of mine,” Nocera wrote.

Yes, we all have such experiences, and we all are affected by them.  But we also must be on guard against the tyranny of personal experience – how the raw emotional impact of something we’ve seen with our own eyes can blind us to context and even to facts.

We can’t help but wonder: What if Joe Nocera’s father ran a seafood business that had been wiped out by the "indirect" effects of an oil spill.  What would he be writing today?

And if you’d like to meet some real people who just might change your mind, Joe, check out our documentary about the aftermath of the BP spill, Crude Justice:

Linda Greenhouse revisits a prime example of the 1% Court in action

In an excellent column this week, Linda Greenhouse, former Supreme Court reporter for The New York Times revisits a case, Knox v. Service Employees International Union, which Alliance for Justice has been following closely, but much of the media have ignored.

Justice Samuel Alito

Knox illustrates both how the current majority goes out of its way to favor big business, a theme of our most recent First Monday documentary, Unequal Justice, and also the extreme judicial activism of the court’s extreme right – another issue we’ve followed closely.

Greenhouse also cites Prof. Benjamin Sachs who, on this Blog and elsewhere, has argued that, in a post-Citizens United world, the majority’s view gives unions notably less “free speech” than corporations.

As Greenhouse points out, the issue in Knox was narrow and seemingly arcane—whether workers who were not members of the union had been given adequate opportunity to “opt out” of one particular “special assessment” to be used for some political activity.

But the right-wing majority, led by Justice Samuel Alito, seized upon the opportunity to go far beyond this narrow issue.  They questioned whether unions have a right to require non-members to affirmatively “opt out” of any use of their dues for political activity.  They even questioned whether unions have a right to charge dues for non-members at all, even though those non-members, of course, receive all the benefits of collective bargaining agreements.

Greenhouse calls it “flagrant activism.”  She writes: 

In his opinion, Justice Alito denied going beyond the confines of the question the parties brought to the court, but Justice Sonia Sotomayor shredded his defensive assertion in a separate opinion. Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor said the case, as presented, provided no occasion for the majority’s attack on the opt-out rule, let alone its expressions of skepticism about the constitutionality of the agency shop.  …  Justice Sotomayor said: “To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise.”

Justice Breyer, joined in his dissenting opinion by Justice Kagan, noted that “the debate about public unions’ collective-bargaining rights is currently intense.” He added, “There is no good reason for the court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”

Scalia: A round-up of the responses

Antonin Scalia

By now you've probably read Justice Antonin Scalia's appalling comments explaining how he justifies equating laws banning sodomy with those barring bestiality and murder.  (And if you haven't you can catch up with them here.)

Fortunately, there have been some important responses from, among others:

• The New York Times
• The Washington Post
• The Daily Beast
• Salon
• And cartoonist Tom Toles

Of course the most important response will come when all nine justices rule on cases involving the so-called Defense of Marriage Act and Proposition 8.  The night before the Supreme Court decided to take those cases, panelists at AFJ's Conversation with Jeffrey Toobin previewed the issues:

The New York Times takes on "a severe breakdown in the process for appointing federal judges"

Making extensive use of AFJ's resources on judicial selection, The New York Times has an excellent editorial on that topic today:

Judges Needed for Federal Courts

There has been a severe breakdown in the process for appointing federal judges. At the start of the Reagan years, it took, on average, a month for candidates for appellate and trial courts to go from nomination to confirmation. In the first Obama term, it has taken, on average, more than seven months.

Seventy-seven judgeships, 9 percent of the federal bench (not counting the Supreme Court), are vacant; 19 more seats are expected to open up soon. The lack of judges is more acute if one considers the growing caseload. The Judicial Conference, the courts’ policy-making body, has recommended expanding the bench by 88 additional judgeships.

President Obama must make fully staffing the federal courts an important part of his second-term agenda — starting with the immediate Senate confirmation of the 18 nominees approved by the Senate Judiciary Committee.

A significant reason for the slowdown has been the partisan opposition of Republicans to appeals court and even to trial court nominations, even though almost none of the nominees have backgrounds that raise ideological issues. The Republicans have time and again used the filibuster, the threat of filibuster, holds on nominations and other tactics to block confirmations.

The Democratic majority, led by Senator Harry Reid, can speed up the process by limiting use of the filibuster. He can do so by pushing for a simple majority vote at the start of the January session to alter Senate rules so that every judicial and executive-branch nominee is assured an up-or-down vote within 90 days. Without that change, many judicial nominations will founder.

The full editorial is available here.