As election results rolled in and Republicans were clearly taking control of the United States Senate, we embattled and map-weary Democrats scanned those results for silver linings. It appears one of those positive outcomes rests on the motivation to create a new "playbook" - meaning that Republicans who have been playing defense against new legislation might finally begin to dismantle the logjam.
While many might question the GOP's willingness to tackle "wedge" issues, they can find the most bang for the buck in the civil courts arena. And not just in the big-picture "more funding" issue.
For example, "comprehensive" immigration reform may remain elusive, but those unaccompanied Central American minors flooding our borders offer a chance to find common ground. Democrats seek more resources and Republicans more frugality, but nobody is rushing to defend the Department of Justice's operation of the immigration courts.
"The DOJ has contributed to selling the Immigration Courts short rather than defending their independence or enhancing their stature," the judges' union, the National Association of Immigration Judges, said in a report given to Congress.
"This has serious and insidious repercussions." The judges want a total overhaul, but just funding judges and legal aid for the border kids would be a big step forward.
Jon Huntsman, chair of the Atlantic Council, former ambassador to China and onetime Utah governor, included baby steps on immigration, telling Politico Magazine that "... majorities agree on key elements of both immigration and tax policy. Congress should pull those elements into a package that aims to fix, to improve--not overhaul, not remake or rewrite--our immigration and tax systems..."
It is hard to see how Ambassador Huntsman's common sense approach works if 300,000 people are waiting years for an immigration court decision.
The second civil courts agenda item should include adding consumer protections to a conservative effort to reform how asbestos trust funds, created by bankrupt firms to meet massive liabilities for making people sick with the material, share information. For decades, the "tort reform" community has grumbled that some plaintiff firms "double dip" by telling one exposure story to a certain fund then another to other funds, and perhaps another during actual trials.
Support for the double-dip argument received a well-publicized boost this year in a North Carolina bankruptcy case after a federal judge found potential fraud in all 15 cases he examined involving claims against a gasket maker called Garlock. That judge is opening up formerly private files, which will likely trigger a national rush to re-examine thousands of settled claims.
Transparency may not be attractive to all asbestos attorneys, at least it can give both sides equal protection. Just this week, attorneys for plaintiffs-turned-defendants promised in a press statement that "... there will be much more to come in the way of documents and testimony when the case enters the discovery phase of the litigation."
The U.S. House has already passed a business-backed bill, called the Furthering Asbestos Claim Transparency act, that addressed the bankruptcy trust problem. It was going nowhere with Sen. Patrick Leahy (D-Vermont) running the relevant community.
However, with the GOP in charge, Democrats might find enough consumer benefits to create common ground or draft a new victims-focused bill. If not, many American families will become "perjury pawns" in a battle between big corporations, victims attorneys, and massive insurance firms.
Many of those will be military families, since the armed forces used a lot of asbestos over decades. Preventing that heartbreak makes good political sense and economic sense, while being indicative of a well-functioning government.
In a pre-election CNN interview, Vice President Joe Biden's comments mirror this hope for progress: "... going into 2016, the Republicans have to make a decision whether they're in control or not in control," the vice president told Gloria Borger. "Are they going to begin to allow things to happen? Or are they going to continue to be obstructionists? And I think they're going to choose to get things done."
If the Veep can acknowledge the opportunity for the Republicans to roll up their sleeves and implement an agenda, we can agree with him. Clearly, harvesting some low-hanging civil justice fruit would be a great place to start.