We’ve often described high-profile litigation against U.S. businesses as being pushed by a combine of trial lawyers, activists, a complicit (or lazy) media and government officials. (See the anti-Chevron litigation in Ecuador.) It’s a strategy that litigation industry often uses but rarely acknowledges.

However, John Coale, the well-known plaintiffs’ attorney who made millions from suing tobacco companies, revealed the strategy in a 2000 panel discussion sponsored by the Federalist Society. From “Firearms Litigation, Tort Liability, and the Second Amendment – A Symposium,” Coale’s frank description:

MR. COALE: What I want to do is take you through our strategy. I am going to give you an honest assessment of what we (“we” being the lawyers who have attacked the tobacco industry, and who are now attacking the gun industry) are attempting to accomplish. My group represents five cities in coordination with the other 25 to 30 cities suing the gun industry and is working with several state Attorneys General.

Now, I would preface my remarks with the observation that the other side does the same thing, they just don’t admit it. We take these cases, such as tobacco-back in 1994, and then put together a threepronged attack, legal, media, and political. We attacked on these three fronts for five years until they folded and settled. Whether we would have won the cases in court, we will never know, but the bottom line is that we won the war.

We vilified the industry in the media, which wasn’t hard to do. We leaked damning documents. We worked with our political friends against the tobacco industry in Congress and elsewhere. And then we went into court and we used this three-prong attack against the tobacco industry very effectively. I am sure very few in the audience agree with this strategy, but tobacco was an issue we wanted to win, and we did.

To see examples of the three-pronged attack in action, just read the news releases from the American Association for Justice, the trial lawyer lobby.

The Federalist Society commissioned a survey by The Polling Company ™ of 600 actual voters on the election and legal/judicial issues. Top line conclusions:

Judicial Nominations on the Minds of Americans in the Voting Booth
More than two-fifths (41%) of actual voters said they considered the presidential candidates’ potential judicial nominees in their list of “top five” issues when casting their votes this week.

Actual Voters Prefer Judicial Restraint
By a margin of more than 2-to-1, actual voters preferred the President nominate judges and justices who “believe that their roles as judges is solely to evaluate whether a law or lower court ruling is in line with the constitution” rather than those who “believe that their roles as judges is not simply to review the law as it is written and not take into account their own viewpoints and experiences” (67% vs. 24%).

“The People and the Judiciary” is the theme of the Federalist Society’s annual national lawyer’s convention in D.C. next week:

American courts, on both the state and federal level, are playing an increasingly visible role in deciding issues of enormous importance.  Using the theme of this year’s Convention, The People and the Judiciary, the Federalist Society will examine the role of the “least dangerous branch.”  How, and by whom, should the judges who populate these various courts be selected?  And for what period of time, and under what conditions, should judges be retained?  Should their decisions be subject to review, revision and even reversal by the populace, or perhaps by the peoples’ elected representatives?  And how can standards of judicial conduct be determined, monitored, and enforced, without impinging on judicial independence?  Our four plenary panel sessions and various addresses will answer these and other questions.

An impressive lineup of speakers, starting with Attorney General Mukasey and Justice Scalia.

President Bush went to Monday to give a speech on his judicial philosophy, nomination of judges and their confirmations. The Ashbrook Center for Public Affairs, a conservative public policy institute at Ashland University, and the Federalist Society sponsored his speech.

The remarks broke no new ground, serving instead as a bit of legacy casting and political framing.

Although…his criticism of how the Senate handled Miguel Estrada’s nomination to the Circuit Court of the was quite sharp. And the remarks about the effects of the vicious, consciously dishonest campaigns against judicial candidates are important reminders:

The broken confirmation process has other consequences that Americans never see. Lawyers approached about being nominated will often politely decline because of the uncertainty and delay and ruthlessness that now characterizes the confirmation process. Some worry about the impact a nomination might have on their children, who would hear their dad or mom’s name dragged through the political mud. This situation is unacceptable, and it’s bad for our country. A judicial nomination should be a moment of pride for nominees and their families — not the beginning of an ugly battle. And the confirmation process should befit the greatest democracy in the world — and not look like a bad episode of Survivor. (Laughter.)

Not a good place for a joke, Mr. President. The treatment of nominees for federal positions, not just judgeships, is abhorrent.  If the public fully appreciated the cynical and ugly machinery put into play in Washington to destroy people’s reputations, well…oh, who knows what would happen. One hopes some corrective voting.

Tying his remarks to the first day of the Supreme Court’s fall term, we’d also guess the President sought to prompt a useful question or two in tonight’s debate in Tennessee between Senator John McCain and Senator Barack Obama.

The transcript of the remarks is here, and the White House also released a fact sheet on judicial nominations, entitled “Judges Who Honor the Constitution.”

The L.A. Times blogged on the speech, and the Washington Times deemed it newsworthy. Coincidently (perhaps), AP Ohio also ran a story on the race for the Ohio State Supreme Court, “Northeast Ohio judges look to unseat GOP justices.”