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Supreme Court nominee's tort reform stance praised

Posted On: May. 11, 2010 12:00 AM CST

WASHINGTON—U.S. Supreme Court nominee Elena Kagan is drawing praise from both sides of the tort reform debate.

Victor Schwartz, general counsel for the Washington-based American Tort Reform Assn., on Tuesday commended Ms. Kagan—now U.S. solicitor general—for her willingness to listen to views that she did not necessarily share during her tenure in President Bill Clinton's administration.

“I worked with Elena from about 1995 until about 1998 on tort reform issues, when she was assistant White House counsel and that was part of her portfolio,” said Mr. Schwartz, who also is a partner in the Washington office of Shook, Hardy & Bacon L.L.P.

“Her views were distinctly pro-plaintiff, but she would listen and we could exchange thoughts. The bottom line is that President Clinton signed the General Aviation Revitalization Act, the Volunteer Protection Act and the Biomaterials Assurance Access Act. He vetoed product liability, and Elena had a clear hand in that,” Mr. Schwartz said of 1996 legislative activity.

Afterward, Mr. Schwartz worked with Ms. Kagan and her boss to arrive at a product liability bill “I believe the president would have signed but some in the business community believe did not go far enough,” he said.

“The bottom line is that Elena, unlike some strong ideologically pro-plaintiff people, would exchange views and listen; she was a two-way communications device and not a radio like some with whom I've dealt,” Mr. Schwartz said.

A former U.S. attorney general said Ms. Kagan's Clinton administration experience might give some indication of her approach to tort reform.

“She was in the Clinton White House and in the domestic policy area, and they were no fans of tort reform,” said Richard L. Thornburgh, who was attorney general under President George H.W. Bush and now is of counsel in the Washington office of the law firm K&L Gates L.L.P. “I would assume she would reflect that on any occasion where she was called upon to pass upon questions that involve tort reform,” he said.

Mr. Thornburgh also noted that solicitors general represent the federal government, and “lawyers who represent the government don't necessarily present their own views.”

The leader of a consumer rights group that opposes tort reform also praised Ms. Kagan.

“I think, generally, consumer groups are positive about her selection,” said Joanne Doroshow, executive director of the New York-based Center for Justice & Democracy. “It's difficult to know how she might come out on specific issues, but in general everybody's pretty supportive of her nomination,” she said.

“It's a good sign that she was against” the product liability reform legislation that President Clinton vetoed. Ms. Doroshow said.