By Dan Kennedy • The press, politics, technology, culture and other passions

Warren needs a better answer on asbestos case

Coming out of Thursday night’s WBZ-TV (Channel 4) debate between Republican senator Scott Brown and his Democratic rival, Elizabeth Warren, I thought the issue that could have the most resonance was Brown’s accusation that Warren profited from a legal case that harmed victims of asbestos exposure. Warren didn’t handle the question well, and the matter was left hanging.

Boston Globe reporter Noah Bierman wrote about the case in May. It is convoluted, to say the least. In essence, though, Warren was paid $212,000 by Travelers Insurance to argue that the insurer should be immune from future asbestos lawsuits in return for setting up a $500 million trust fund to compensate victims. The liability belonged to Travelers because Johns-Manville, the company that actually manufactured the asbestos, had gone bankrupt.

Later, after Warren no longer had anything to do with the case, another court ruled that Travelers did not have to pay out the $500 million. So the victims got nothing. Warren told the Globe:

My heart goes out to the victims of this terrible, terrible disaster. It’s heart-wrenching that there are new victims every year…. I think they should be compensated. That’s it for me. That’s what this is all about.

She added that the principle she was fighting for — a provision in bankruptcy law that would allow the establishment of trust funds for victims in return for no further legal liability — was “a critical tool for making sure that people who’ve been hurt have a fair shot at compensation.”

Brown is scheduled to discuss the asbestos case with reporters later this morning. Warren needs a better answer.

Overall, I thought Warren came across well — focused, substantive and calm, if a bit repetitive. Brown was snide and personal. Moderator Jon Keller began by inviting Brown to comment on Warren’s character, and Brown chose to go all-in on Warren’s claim that she’s part Native American. Senator, there are people who will do that for you — and have been doing that for you.

Here is my Northeastern colleague Alan Schroeder, writing for the Huffington Post:

The opening debate between Elizabeth Warren and Scott Brown … at times felt like the classroom dynamic between an earnest, soft-spoken high school English teacher and the defiant jock who plants himself in the back row and makes sour faces until the bell rings. Although the teacher never quite subdued her student, neither did he manage to get the better of her.

And how good a moderator is my friend Keller? Other than keeping the conversation moving, you barely knew he was there. In other words, a first-rate job.

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  1. Nice analysis Dan. This is the danger of settlements since they take away the right to sue and then, you can lose everything, based on the whim of a court and a judge. But it also comes back to something that has annoyed me over the years with pols – their righteousness tenor in speeches and then, we find out later, they’ve earned money working from the same interests they attack. Warren hasn’t spent a career doing this, like Deval Patrick had. But this is a significant case and deserves a better answer. It was the same when then-candidate Obama was going on and on about not having lobbyists in his campaign and yet there were a slew of them. Up here in New Hampshire, we knew them all well! No one called him on it because, you know, he’s the messiah and all. It’s like, don’t say it if it’s not true.
    On the debate, I’ve been thinking about it a lot. Here are some thoughts:
    I found it amusing when Brown said, paraphrasing, All you union guys out there … He does come across like the jock in the back of the room – that nailed it – but he also comes across as normal too. So long as the jock in the room isn’t bullying anyone, you want to have a beer with the guy.
    Warren saying, Just so we’re clear … about the not raising taxes on the rich point, over and over again, was annoying. She doesn’t need to play to these folks; she has them and they aren’t enough to put her over the top. She has to expand the voting base to win. There are more unenrolled voters in Massachusetts than either party and they trend more conservative than not. The class warfare stuff isn’t going to gain her votes from these people.
    Brown also wasn’t as prepared as he needed to be and nerves about not making his flight or connectors are no excuse. When he cited statistics about analysis re: Warren’s tax plans, he could get the org names correct. That’s something pretty easy to memorize at this point in your career. He also should be more pointed in his attacks on her plan. Most people don’t realize – or ignore the fact – that if you start taxing billions in oil profits more, the tax will get passed onto the consumer, raising prices that are already too high. He hinted at it, but it’s a sledgehammer of a point and he couldn’t – or wouldn’t – make it. That goes back to the larger point he made about the need for fundamental corporate and income tax reform that we’ll never get because both parties are bought and paid for by lobbyists, with the Democrats obsessed with sticking it to the rich and the Republicans obsessed with protecting their big checks. Lastly, I’m glad that he made the point about volunteering to pay more in state income taxes, something that Warren and others never do even though they are obsessed with with higher rates. It’s a relatively point – especially when the Warrens are a part of the 1%.

  2. Martin Callaghan

    The asbestos charge was the one that hurt Warren the most. As you say Dan, she did not have a response. Maybe becuase it was closer to the end of the debate, but I was surprised that Brown didn’t seem to pick upon the body blow he landed.

    Thought they both had problems with repetition, Brown was far worse. Brown seemed uneasy and ill prepared in terms of style. With all that has been reported about the Indian stuff, I think most serious voters have made their minds up about that so I am surprised Brown kept at it. The difference on tax policy are “Crystal Clear” as were heard a few times. On or two “professor” comments would have been enough, perhaps one at the begining and one at the end. Would have gotten the point across subtly without looking petty as he did.

    Warren also missed an opportuniy on the equal pay argument. After mentioning the number of women in his family, Brown said he supported “fair pay” for women. Fair pay is not equal pay and Warren should have pointed that out.

    I was a bit stunend that Brown didn’t take questions after, but not sure if that only matters to political junkies and not so much to voters.

    Brown needs prep time behind the podium, which I expect he will get, and will be better prepared for the next debate. Warren needs to hone her message on how Browns vote’s don’t truly reflect what he says he believes in, ie: the Blunt Amendment.

  3. Sean Griffin

    I was hoping that Warren would take issue with Brown’s claim in his latest campaign ad that he “came from nothing.” Derek Zoolander came from nothing. Scott Brown’s father was a Newburyport city councilor for 18 years.

    • Barack Obama Sr. had a big job too, in Kenya. That didn’t change the fact that both he and Brown’s father had abandoned their wives. How many years did Brown live in Newburyport? Zero. Nice “Zoolander” reference though. Stay classy.

    • Rick Peterson

      And contributed as much as Barack Obama Sr. did to HIS son’s upbringing.

  4. Laurence Glavin

    As the debate wore on, I became more and more annoyed by Scott Brown’s use of the term “bi-partisan”. It’s almost an article of faith among Republicans that during the first two years of his term, President Obama had a veto-proof Senate of at least sixty members. Not quite. The obdurance of the Republicans was absolute…they ALL voted with the leadership. But among the Democrats you had people like Blanche Lincoln, Ben Nelson, and even Claire McAskill (the latter two being counted on to retain the Senate for the Democrats!) going off the rails to the dark side (and then there’s Joe Lieberman!). So if there was any vote that had 100 per cent of the Republicans, including Scott Brown, and one or two “Democrats”, voila: it was a bi-partisan vote.

  5. I don’t have to time to read the other comments.
    But a blog post on notes that the asbestos workers’ union has endorsed Warren. If that doesn’t say it all, I don’t know what does. I don’t know why she didn’t use that as her response. Guess some people involved in the case also showed up at Brown’s office today to scold him for the attack.

  6. Mike Benedict

    If Scott Brown were so open to Democractic views, why not just run as a Democrat? It would make getting elected so much easier for him. Fact is, he’s just another guy who is doing everything he can to keep his paycheck. Keep in mind that the term “retail politician” is not intended as a compliment.

    And Warren’s bio is far more remarkable than Brown’s. That’s not a battle he can win, pickup or not. (The Globe should publish shots of his McMansion in Wrentham.) She started off with less, and scaled far higher heights than he ever will.

    • She started off with less? She had a loving and intact family, a better predictor of success than economic standing. Also, I’ve actually been to her neighborhood – her elementary school was brand-new when she went there, and she lived in what would be a $300,000 house in MA. Brown has ACCOMPLISHED a McMansion (and has a wife who made a very large contribution to that economic change), and Warren has the income to live in an equally large house. Her bio is actually far LESS remarkable and mirrors that of many well-heeled academics. Nothing against her accomplishments, but to imply that she came up from poverty is nonsense. (It was Kerry Healey who grew up in a Florida trailer park, but that was never mentioned).

      • Mike Benedict

        You’ve been reading too much “American Thinker.” So you saying there’s a comparison between someone whose family was so poor, they had to sell their only car to pay the medical bills, and who worked as a waitress through high school to help the family pay its bills, somehow was MORE well off than a kid who summered at “dear old dad’s” in Newburyport (and that’s when he wasn’t at camp)? She went from dirt poor Okie to a tenured professor at the best law school in the country. (And Harvard grants tenure about as often as Mitt Romney votes Democrat.) Brown’s a guy who lucked into a special election win and is about to be known as Massachusetts’ version of Michael Flanagan.

  7. Tony Schinella

    According to HuffPost, the 700,000 jobs lost analysis if taxes are raised back to Clinton levels was done by Ernst & Young.

  8. Sean Griffin

    Arlen Specter switched parties on April 28, 2009. Al Franken was sworn into the Senate on July 7, 2009. Ted Kennedy died on August 25, 2009. Paul Kirk was sworn in on September 24, 2009. Scott Brown was sworn in on February 4, 2010. So for how long did the Democrats have a “filibuster-proof majority”?

    • Mike Benedict

      Not only that, but even with the 60 votes, Obama made it a point to try to get greater consensus, and the Republicans refused to even consider it. Then they whined that the Democrats passed everything without their support. Not surprisingly, their lackeys continue to echo this fallacy.

  9. Steve Rhode

    Dan – intrigued by your comment that Brown has “other people who will do that for you”. In my observation it has been largely the media who have been doing that for him by keeping the story alive.

    So… given that this is a media focused blog, at what point should responsible media recognize that this is a non-issue and move on?

    • Steve Rhode

      No takers on this question…. Doesn’t the media have some responsibility to point out when a campaign’s rhetoric strays too far from fact?

      • Dan Kennedy

        @Steve: The asbestos issue is pretty complicated. I follow this stuff fairly closely, and she hasn’t quite convinced me. I know it seems that her involvement was benign, and perhaps I’m just being too suspicious. As for the coal issue, there were a lot of progressive politicians on the other side.

  10. Dan Farnkoff

    Give the judge who threw out the settlement a name. That might help a little. Sounds like a piss-poor decision was made, to let Travelers off the hook- so who made it?

  11. Sean Roche

    That Professor Warren “needs” a better answer, begs the question. Is there any indication that her work on behalf of Travelers matters to voters who haven’t already made up their minds? Yes, she could have a better way of distilling her involvement on the case to something more easily digestible and more palatable to those whose votes she’s courting (and more likely to win the approbation of the pundit class). But, my guess is that persuadable voters don’t care. In the context of her larger body of work on behalf of consumers and regular folk, it’s a reasonably small contradiction, at worst.

    It won’t probably be possible to isolate the impact of the Travelers attack. With the early attacks on her claim to Native American heritage, that was all that was pretty much all that was going on in the campaign, so the absence of change in polls suggested that the attacks weren’t taking hold. Now, there are too many things going on (debate performance, movement nationally away from Romney/Ryan having an impact down-ticket, &c.). So, it’s all just educated guesswork (and maybe some private polling on the topic.)

    Bottom line: if I were Elizabeth Warren, I would tune up my answer. Affected union endorsed me. The law can be complicated and sometimes opposing parties can have aligned interests. But, I wouldn’t worry too much about it. If you’re explaining, you’re losing.

    • Sean – Waren’s problem is that she stood up for the insurance company instead of the little guy. Mind you, she was correct. Johns-Manville, the manufacturer, had already been driven into bankruptcy by lawsuits, and this suit was to go after Travellers for having insured them for ‘general liability’ which is usually slip-and-fall, etc. Success on this would have extended product liability to a ridiculous length – I would be able to sue the insurer of Dunkin Donuts if I scalded my tongue trying to open the container of hot black coffee that coffee waitrons for some reason fill up to the brim in the absence of cream. Travellers didn’t make asbestos, the manufacturer did and they had already been eviscerated, and merely because more claimants wanted money wasn’t a strong enough legal reason to hold Travellers responsible. But common sense is not available to a candidate who states at least six times in every appearance that she has spent her life standing UP to the big Wall Street companies – the disconnect is that she also sometimes stands up FOR them, for a handsome fee.

      • I wasn’t clear. You are right. There is a disconnect. No question.

        But, I’m challenging the assumption that the disconnect matters as an electoral matter. I’m suggesting that the most people are going to look at the larger picture and give Professor Warren the benefit of the doubt on the seeming inconsistency. Nothing to see here, moving on.

      • Carl J. Britton, Jr.

        Elizabeth Warren’s specialty as a lawyer is bankruptcy law. As I understand the case, the reason for her involvement in it was to resolve an issue of bankruptcy law that would have required companies going through bankruptcy to set up trust funds to compensate victims of the actions that led to their bankruptcy — not an issue that she could have addressed as a lawyer for the victims.

        Moreover, my guess is that the fact that Elizabeth Warren was representing the insurance company made it more likely that the result was a fair one for the victims — and, indeed, the victims have praised her involvement in the case for that reason.

        Unfortunately, the price the corporation extracted for their agreement to set up a trust fund was that the setting up of the trust fund would preclude further litigation — a reasonable compromise — UNLESS, as actually happened in this case AFTER Elizabeth Warren’s involvement had ceased, the company plans to appeal the decision to a different judge after the fact, who subsequently ruled that they didn’t have to actually put money into the trust — at which point the price they had extracted of precluding further litigation left the victims high and dry.

        As for Elizabeth Warren’s needing a “better answer” for this question in debates and interviews, my guess is that this issue is sufficiently complicated that she is being advised to try to avoid the question rather than allowing herself to get bogged down in the lawerly details — look at how long it takes in writing to explain the REAL context! As an experienced lawyer/law professor, she is more than capable of explaining those details. As an inexperienced politician, she is obviously less capable of deflecting truth-twisting back-stabs from her more experienced political opponent.

        I know which of those two types of people I would rather have as my Senator…

  12. Sean Roche

    I think that Team Brown agrees with me. New ad going after Eliz. Warren on the Native American claim, not the Travelers case.

    • Martin Callaghan

      I was thinking that the Indian stuff was decided in that it has been out there for so long, most people had made up their mind on it. Obviously the Brown campaign sees it differently. While I questioned the sense of another ad on the subject, the last line in the ad delivers the blow set up by the Indian controversy. That made sense.

      • Steve Rhode

        Seems pretty clear at this point, it’s a strategy to get a few more disaffected white males who believe that affirmative action is their enemy out to vote for Brown. Consider the repetition of the phrase “checked the box” in the 1st debate, and the seemingly innocent “affirmative” slip of the tongue in the second debate last night.

  13. Michael Pahre

    She’s a lawyer. She doesn’t have to defend herself for her clients’ misdeeds. Even mass murderers are entitled to strong advocates who shouldn’t have the fact that they defend mass murderers be held against them.

  14. it always astounds me when people prattle on about the evils of “trial lawyers.” Would they represent themselves if accused of a crime?

  15. L.K. Collins

    It appears that she may not have been licensed to practice in this state.

    • Mike Benedict

      It appears it does not matter.

      • BI is about as unbiased as the Globe and a whole lot more snarky. I have met lots of lawyers in 30+ years in my business. Not one ever neglected to join a bar association. has what appears to be a pretty explicit template for membership for practicing attorneys and/or law professors. I was surprised at how inexpensive it is. She may have a great explanation; I just haven’t heard it yet.

        • Dan Kennedy

          @Rick: That BI post was just a gloss of a Massachusetts Lawyers Weekly article. Are they in the tank, too?

      • Mike Benedict

        It’s less about who wrote the article and more about whom they quoted. When the guy who runs the licensing board says it’s OK, it’s OK.

  16. Here we go again with the Clintonian parsing. If only Michael Frederickson had been as unambiguous as MB. When does “dabbling” become “practicing”? (Traveler’s Corporate Counsel to Board of Directors:” Not to worry guys, I found a law professor who will dabble in this case for a quarter of a million bucks.”)
    Ask anyone who ever went to law school what makes a good contract. Ambiguities are your enemy. In gray areas like this one, every lawyer I ever met makes sure that they avoid even the appearance of a bar violation. David Kravitz of Blue Mass Group is usually the first voice heard from on such matters, due to his unassailable expertise and clear progressive opinions. This time, for some reason, crickets.
    I’m guessing that the BBO is more worried about crossing the MA Democratic State Committee than the DSC’s friend Mr. Kravitz is. IMHO, so far, this is the dog that didn’t bark. If I don’t hear from Warren supporter Kravitz on the subject, that will speak volumes.

    • Dan Kennedy

      @Rick: Nice job shifting this from Massachusetts Lawyers Weekly to Blue Mass Group.

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