With the advice and consent of the Republican-led Congress, President George W. Bush is naming federal judges at a record pace. Social conservatives and liberal watchdogs alike are scrutinizing his nominees. And business groups? "For the most part, business has been on the sidelines," says Adam Elggren, a spokesman for Utah Sen. Orrin Hatch, a former chair of the Senate Judiciary Committee.
Given that fully half of the provisions of the Constitution govern commerce, that's a serious problem, according to Michael Greve, a resident scholar at the American Enterprise Institute, the conservative Washington, D.C., think tank. More and more business-related cases are moving from state to federal district courts on interstate commerce grounds. Meanwhile, employment law remains a major source of litigation. And innovation-driven intellectual property disputes are cropping up all over too.
Yet nominees to the federal bench are rarely quizzed as closely on their views of copyright law as they are on, say, Roe v. Wade. What's worse, "most elected or appointed officials just don't have a business background," says Ty Pine, director of the Ohio chapter of the National Federation of Independent Businesses. To address the situation at the state level, Pine set up a panel of business owners to make endorsements in judicial elections. Last year, all three judges the panel endorsed were elected.
So would greater lobbying on behalf of business owners change the makeup of the judiciary? Perhaps. Business law has a funny way of scrambling the typical conservative-liberal divide in politics. For example, the jurist that conservatives Greve and Pine most admire is Supreme Court Justice Steven Breyer, a Clinton nominee sometimes identified as a reliable liberal vote. Greve says that Breyer is often the proponent of business interests in key rulings. The lone justice, for example, who wanted to find the Telecommunications Act of 1996 unconstitutional, Breyer objected to the law because he believed its practical effect would be to help large phone companies quash innovation -- even though its stated intention was the opposite.
Breyer, says Greve, is the rare judge who considers the consequences of a decision on business when looking at cases. "We just need judges who have a simple understanding of how business works," he says, "and use that insight to weight the decisions they make."