Poor Richard Posner. He’s generally conservative, and he’s one of the smartest and most well-respected federal judges in the country (he sits on the 7th Circuit Court of Appeals in Chicago). Which would seem to make him a good candidate to fill the next Supreme Court vacancy. But when you go around shooting giant holes through the President’s pet projects, it might tend to diminish your chances of being appointed.
Take the most recent post on Posner’s new blog, which is all about tort reform. What he says about medical malpractice pretty much demolishes the Bush position. For example, Posner casts doubt on the whole notion that lawsuits are driving up malpractice insurance premiums, noting that "there is evidence that premiums are strongly influenced by the performance of the insurance companies’ investment portfolios." You haven’t heard that one from the Bush crowd! Posner goes on to float an extremely sensible suggestion:
A better reform would be to permit, encourage, or even require insurance companies to base malpractice premiums on the experience of the insured physician, much as automobile liability insurance is based on the driver?s experience of accidents. That would make malpractice liability a better engine for deterring malpractice?which in turn would reduce malpractice premiums by reducing the amount of malpractice. Capping judgments, in contrast, would reduce the incentive of insurance companies and their regulators to move to a system of experience-rated malpractice insurance.
Well, hard to argue with that one — bad doctors pay more, good doctors pay less! But again, you won’t find it in the Bush plan, which depends almost exclusively on making it harder for injured people to recover. And the Bush plan would be implemented by a host of new federal laws — but whoops! Posner has something to say on that too: "there is no compelling case for federal limitations on malpractice liability…. Federal legislation would simply stifle state experimentation with different methods of regulating physicians and prevent us from learning which is best." Which reminds us that Republicans (the D.C. variety, anyway) are "federalists" who oppose the expansion of federal power only when that position aligns with their policy goals.
Posner’s bottom line:
We should be cautious about tort reform. It would be unfortunate if interest-group politics, and anecdotes concerning outlandish lawsuits (such as the suit against McDonald?s by the customer who spilled hot coffee in her lap), were allowed to obscure the difficult policy issues.
Yes, that would be unfortunate, wouldn’t it. Anyway, if he hadn’t done so already, Posner has probably kissed the Supreme Court goodbye. Too bad, though — with stuff like this out there, it would be a fantastic confirmation hearing!
