The problem is that when artificial jury-settlement caps as a solution to high-cost health care are polled straight-up with the public -- that is, absent too-typical language like "Today, doctors are ending their practices because of unfair lawsuits . . . " -- Republicans and other conservatives say they prefer other alternatives almost every time.
Why? It's really not hard to understand. Generally, conservatives are devoted to the concept of not tampering with the fundamental intent of the Constitution. We don't like activist judges, and usually the only thing we want capped are taxes.
But many longtime Democratic liberals on the trial lawyers' side also have trouble facing reality.
What many Republicans want are "front-end" filters that can keep bad lawsuits out of the system. They'd like a way for juries to determine whether a lawsuit is frivolous, for example, or a requirement that the loser of a suit should compensate the other side's legal expenses.
A complication is that there is a strong streak of populism that has younger trial lawyers backing GOP candidates. This is happening especially in the South, with its many Republican senators. And retiring Georgia Democratic Sen. Zell Miller has steadfastly refused to accept the $250,000 cap. He's more interested in snuffing out lawsuits in which millions of dollars are paid to plaintiffs in such frivolous cases as a hot coffee cup burning the hand of a fast-food customer.
As the new Congress gathers in Washington, Republican senators from populist states are being asked to risk a growing base of political support. These lawmakers fear seeing future political ads pointing to the harm done to stay-at-home moms and children who might gain little by economic-damage awards, thereby implying that their lives are essentially of less value than those who are employed.
In reality, many GOP leaders view the "get-even" strategy of caps to be a less-than-conservative solution. Just over a year ago, a similar cap proposal by Florida Gov. Jeb Bush faced its fiercest opposition from, of all things, that state's top Republican state senators. The end result was a significant compromise designed to avoid some of the pitfalls of the $250,000 limit.
Clearly there is a need for a re-haul of certain portions of our litigation system. But Republicans would do well to remember that tort reform doesn't list high among the public's concerns. Any reform should stay true to the conservative cause.
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