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November 4th, 2020 
Awake Goy On March 16, 2016,
President Barack Obama nominated Merrick Garland for the U.S. Supreme Court to
succeed Antonin Scalia, who had died one month earlier. But Senate Republicans
blocked his nomination on the grounds that it was too close to the presidential
election, which was then seven months away. Four and a half years later,
President Donald Trump nominated Amy Coney Barrett to succeed the late Justice
Ruth Bader Ginsburg on the Supreme Court. Although Barrett’s nomination was
made just over one month from the presidential election (which Trump appears to
be losing), she was confirmed.
The Democrats claimed
to be united in their opposition to Barrett’s confirmation. Yet their
resistance to having a justice rammed through at the 11th hour of a lame duck
presidency feels like the resistance that the Washington Generals used to show
against the Harlem Globetrotters. That is, pure theater in which the outcome is
never in doubt.
What this tells us is
that the corporate donors who control the Democratic Party are happy with a
Justice Barrett. In her short time on the bench, she has ruled consistently in
favor of corporations. Just weeks before her nomination to the high court,
Judge Barrett delivered a key ruling blocking many gig workers from suing in
court when tech companies cheat them out of overtime pay. This and other
business-friendly rulings are why corporations have given millions to groups
such as the Judicial Crisis Network and the U.S. Chamber of Commerce to
campaign for Barrett’s appointment to the court. Barrett also belongs to the
business-backed Federalist Society and will join five other Federalists on the
Supreme Court.
The differences
between Democrats and Republicans on issues like abortion and gay rights are
important to be sure. But the areas of agreement between the two parties—both
parties favor the interests of corporations over their workers and the
environment—are also important. And these issues don’t get discussed because
there is no disagreement. It is just accepted by both parties that a lawyer
must be business-friendly to qualify for a federal judgeship.
In a true
representative democracy, a lawyer should not have to demonstrate her fealty to
corporate power to become a federal judge. The interests of corporate America
are closely aligned with only a small fraction of Americans: the investor
class. Most of our interests are more closely aligned with those of workers and
consumers. There are scores of talented lawyers who go to top law schools but
do not go to work at corporate firms. Many of these lawyers devote their
careers to representing ordinary people, often taking on the most powerful
interests in industry and in government. These pro-people lawyers should also
have a place on the federal courts.
Thurgood Marshall was
a civil rights activist who distinguished himself representing victims of
racial injustice before being nominated by President John F. Kennedy for a
federal judgeship, and later to the Supreme Court. Marshall would never get on
the court today. Without a track record of pro-corporate advocacy, the donors
would reject him.
Some lawyers
distinguish themselves by taking on powerful corporations that harm ordinary
people through negligence or deliberate malfeasance, such as the lawyers who
took on a power company’s illegal dumping of toxic waste portrayed in the movie
Erin Brockovich. These lawyers often
exhibit great skill, resourcefulness, and integrity in fighting powerful and
ruthless corporations.
Probably the most
successful lawyer ever in taking on the criminal acts of massive corporations
is Steven Donziger. Donziger graduated from Harvard Law School, worked as a
public defender in Washington, D.C., and in 1993 agreed to represent a group of
30,000 Indigenous people and villagers in Ecuador who had been deliberately
poisoned by Chevron, one of the world’s largest corporations with over $260
billion in assets.
Beginning in 1964,
Chevron (then Texaco) began extracting oil in Ecuador. To save about $3 per
barrel of oil produced, the company decided to ignore waste regulations and
dump some 16 billion gallons of toxic wastewater into rivers and pits,
polluting groundwater and farmland, and destroying a large section of the
Ecuadorian Amazon in what came to be called the “Amazon Chernobyl” by locals
and experts. Local drinking water became noxious, and citizens became ill. This
has all been confirmed by courts in Ecuador after an eight-year trial, the
submission of 105 technical evidentiary reports, and testimony from numerous
witnesses.
“I did not set out to
be an environmental lawyer,” Donziger recently told Greenpeace. “I simply agreed to
seek a remedy for 30,000 victims for the destruction of their lands and water;
to seek care for the health impacts including birth defects, leukemia, and
other cancers; and to help them restore their Amazon ecosystem and basic
dignity.”
Donziger made more
than 250 trips to Ecuador over the next two decades as he led the legal fight
against Chevron. Then in 2011, Donziger and his team secured a $9.5 billion
judgment on behalf of the victims. The trial court decision was affirmed on the
merits or for enforcement by multiple appellate courts in Ecuador and Canada,
including the supreme courts of both countries.
Chevron refused to
pay. During the trial, it threatened the affected communities with a “lifetime
of litigation.” Afterwards, Chevron engaged a team of 2,000 corporate lawyers
from at least 60 firms to retaliate against Donziger and the lead plaintiffs in
the case, filing a barrage of SLAPP (Strategic Lawsuit Against Public
Participation) and RICO (Racketeer Influenced and Corrupt Organizations) suits,
legal tools used—and abused—by large companies to punish people who take them
to court.
Chevron’s vile and
cynical legal strategy—designed to avoid paying compensation to the Indigenous
people whose lives it deliberately destroyed to earn an extra $5 billion over 20
years—could not succeed without a federal judiciary populated by
corporate-friendly judges willing to bend the law to protect corporate profits.
Chevron’s RICO suit
against Donziger was filed in the Southern District of New York, a Wall
Street-friendly court. The case was presided over by U.S. district Judge Lewis
Kaplan who, before being appointed to the bench by former President Bill
Clinton, a Democrat, spent decades as a corporate lawyer representing tobacco
companies and banks. The record of the RICO case shows that Chevron paid a
disgraced former Ecuadoran judge named Alberto Guerra about $2 million to
testify that the verdict in Ecuador was the product of a bribe. Chevron’s cash
payments to Guerra should have disqualified him as a witness. Moreover, Guerra
admitted to lying about the bribe in another international proceeding.
Nevertheless, after denying Donziger his right to a jury trial, Judge Kaplan
found that Guerra’s story was credible.
Judge Kaplan later
charged Donziger with criminal contempt, but the New York prosecutor’s office
refused to take the case. In a rare legal move, Kaplan then appointed a private
corporate law firm (that also represents Chevron) to prosecute Donziger. Kaplan
personally assigned Judge Loretta Preska, a member of the corporatist
Federalist Society, to hear the case. Preska placed Donziger under house arrest
and confiscated his passport.
I reached Donziger by
phone at his apartment in Manhattan, where he lives with his wife and teenage
son. He says that his contempt trial before Judge Preska is scheduled for
November 4, the day after the election. He is again being denied a jury trial.
Some 29 Nobel
laureates, including nine Peace Prize winners, have signed a letter declaring
that Chevron’s legal assault on Donziger is “one of the most egregious cases of
judicial harassment and defamation” ever seen. He has also been backed by 475
lawyers and bar associations who wrote an open letter outlining his wrongful
detention and mistreatment by U.S. judicial authorities.
Donziger’s story is
also a story about the sad condition of the U.S. court system which, like the
other two branches of our government, primarily serves the interests of the
wealthy. On this topic, I strongly recommend a new book by Ronald Goldfarb called The Price of Justice.
Although the Democrats
will do nothing to stop Barrett’s nomination to the Supreme Court, their
leader, Joe Biden, has pledged that if elected, he would establish a bipartisan
commission to study whether to expand the courts to achieve greater balance.
We recall from history
class that President Franklin D. Roosevelt also threatened, in 1937, to add
enough liberal justices to the court to protect his programs from the
“obstructionist” conservatives. The key difference then was that FDR had an
agenda of bold programs to pull the country out of the Great Depression, such
as putting Americans to work building post offices, bridges, schools, highways,
and parks; supporting farmers and labor unions; and ending alcohol prohibition.
The Democrats of
today, however, are offering nothing but a promise to wear a face mask and to
not send mean tweets at 3 a.m., while Joe Biden assured his wealthy donors at a
New York fundraiser that “nothing would fundamentally change” if he is elected
president. Even a Supreme Court packed with Republicans is likely to go along
with that agenda.
Click here for the defense fund established on
Donziger’s behalf.
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