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Big biz draws up Supreme Court wish list
There's a lot at stake for corporate America in President Bush's nominee to succeed O'Connor.
July 8, 2005: 5:57 AM EDT
By Krysten Crawford, CNN/Money staff writer

NEW YORK (CNN/Money) - Justice Sandra Day O'Connor wasn't the Supreme Court's greatest champion of big business, but she was considered a very close friend.

Now, as President Bush considers potential successors, powerful business groups like the U.S. Chamber of Commerce and the National Association of Manufacturers are lobbying for another ally as part of a broader push for litigation reform.

There's reason to think they'll get what they want in the next Supreme Court justice.

"Big business has been a huge supporter of the president," said Thomas Goldstein, a Supreme Court expert and Washington, D.C. lawyer. "It's reasonable to expect that they're going to get a nominee that remains pro-business."

The same assumption applies if, as expected, Chief Justice William Rehnquist retires soon -- which would create two vacancies on the nine-member court. Businesses would "go from losing somebody (O'Connor) they love 95 percent of the time to losing somebody (Rehnquist) they love 100 percent of the time," said Goldstein.

Bush has not yet announced a nominee to replace O'Connor, the first woman on the Supreme Court who said last week she would retire once a successor is confirmed. O'Connor, who is 75 and served on the court for 24 years, was the key swing vote on a number of hot-button issues including abortion and the death penalty.

When it came to business disputes, Justice O'Connor was a friend of corporate America on at least two critical issues -- limiting court-awarded monetary penalties and ruling that federal law trumps state law. On civil rights cases such as race or age discrimination, she at times disappointed the business community.

Looking ahead at the court's docket this fall, legal experts don't expect O'Connor's absence to make a big difference. There are three cases that deal with antitrust laws and two that center on when disputes should be decided in federal or state court. Companies typically prefer federal court, which they consider more predictable and sympathetic.

The one area where corporate America could feel her loss: punitive damages, a monetary fine against companies intended to punish them for wrongdoing and deter further bad behavior. Arguing that punitive damage awards are excessive and arbitrary, companies have long tried to get courts to establish limits. The result of those efforts has been mixed, but O'Connor proved to be one of their best allies on the court.

Goldstein said the names being floated as possible successors are all "people the business community is going to be extremely happy about."

But, he added, business interests may not get their top pick. "There is the prospect that the president's choice could be decided by social issues and could produce a nominee with whom they are much less happy," he said.

Looking for a sympathetic ear

Glenn Lammi, chief counsel of the conservative Washington Legal Foundation, identified at least three possible nominees that big business would cheer: John Roberts Jr., Edith Brown Clement and Janice Rogers Brown. All three are federal appeals court judges.

Corporate America would favor Roberts and Clement because both were once private practitioners who represented business interests -- experience the Rehnquist court now lacks. Given their past experience, the thinking goes, both judges might be friendly to corporate America.

There's a chance too that either Roberts or Clement could influence the court to decide more cases deemed critical to business. The court under Chief Justice Rehnquist has been criticized for not taking up enough cases each term generally, and business cases in particular.

"This is not a court that seems particularly interested in business cases," Carter Phillips, a lawyer who frequently argues cases before the court, told journalists at a Chamber of Commerce forum two weeks ago.

Judge Brown has won the heart of corporate America based on some of her past opinions, including a closely watched case a few years ago in which Nike was sued for making misleading public statements in response to criticism about its employment practices at home and abroad. Judge Brown, then a member of the California Supreme Court, essentially argued that constitutional free speech protected Nike from liability for making the false statements.

"Justice Brown wrote an incredibly powerful dissent (in Nike's favor)," said Lammi. "You can tell she gets it."

But there's no guarantee that a pro-business jurist will fill O'Connor's seat. For one thing, the traditional labels of conservative or liberal that are applied to social issues like abortion or affirmative action don't easily apply to business issues.

"Just because you're a conservative doesn't necessarily mean that your position will be a pro-business position," said Stanton Anderson, the U.S. Chamber of Commerce's chief legal officer and a partner in the law firm McDermott Will & Emery.

Business as allies...and enemies

Consider too that business disputes often pit companies against one another. Last month's ruling in the landmark Internet piracy case, MGM v. Grokster, was a big victory for the entertainment industry. But the unanimous decision was a big loss for the technology industry, which does not want to be responsible for copyright infringement from use of its gadgets or software.

"The issues we care about are so broad ... the judges and coalitions will vary depending on the issue," said Anderson. "That is why it's hard to pigeonhole people (as pro or anti-business). What we're interested in is somebody who is going to apply the law to the facts as they understand them. That's all we can really ask for."

Anderson said the Chamber has been providing the White House with reports that grade judges around the country on their business tilt. The Chamber, he said, isn't rallying behind any particular candidate and will probably rally behind any Bush pick.

"No justice is perfect from the business community standpoint," said Anderson.

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