THE PAIR FROM PASCAGOULA

Who wouldn’t? Moore is the attorney general of Mississippi. Lott is the majority leader of the U.S. Senate. And Scruggs, whom Moore hired as Mississippi’s lead tobacco lawyer, stands to make literally billions in lawyers’ fees from June’s consolidated 40-state, $ 368 billion “tobacco settlement.” That settlement resulted from a lawsuit launched by Moore; to become final, it must be approved by Lott’s Senate.

Lott, Moore, and Scruggs are all from Pascagoula, Mississippi, a Gulf of Mexico port where many of the 26,000 residents make their living building Aegis destroyers and other ships and unloading cargo. What is it about the place? Lott has announced he will recuse himself from discussions and votes on the tobacco settlement. But the other two have engineered an agreement that, if it passes, will be the most lucrative legal settlement in history and the largest federal intrusion into personal behavior since Prohibition. The health advocates who call it a big advance for America’s health may not be wrong. But those who think we ought to worry about two small-town pals’ leveraging their friendship into a society-transforming pact are certainly right.

At first sight, the collusion between Scruggs and Moore looks like one more instance of the oft-mentioned influence of America’s trial lawyers, those who sue deep-pocketed companies for harmful products and work on “contingency fees” that allow them to collect 25 percent — or more — of gargantuan class- action settlements. Attorneys general like Moore get to choose the government lawyers who litigate a state’s small cases and the private lawyers who litigate the big ones. They can also influence whether America’s controversial tort system gets reformed. Democrats tend to look more favorably on trial lawyers than Republicans do — so it’s not surprising that trial lawyers respond with generous campaign contributions. That may be why, in a time of Republican dominance at the state level, 32 of 50 attorneys general are Democrats. Says Alan Ehrenhalt of Governing magazine, attorney general “turns out to be a good job for a liberal in a conservative state.” A good job for Mike Moore.

But while Moore has been the public face of the tobacco suits, Scruggs provides the intellectual firepower. None of his allies or adversaries has ever described him as a lawyer of less than extraordinary skills, Scruggs had a five-year stint as a Navy fighter pilot, then attended law school at the University of Mississippi, where he met Moore. After a short time working in commercial law and legal defense, he returned to Pascagoula, where he developed an efficient way of turning asbestos into money. With class-action suits illegal in Mississippi, Scruggs mastered the art of filing single complaints with thousands of named plaintiffs. His biggest early target was the Ingalls shipbuilding plant, Pascagoula’s largest industry (where Scruggs’s mother had worked as assistant to the chief counsel during Scruggs’s boyhood).

Most of Scruggs’s suits were filed in the friendly Jackson County courts in Pascagoula. What Mississippi’s Gulf Coast offers, according to one New York litigator who has worked on cases there, is “dioxin, asbestos, and tobacco — the holy trinity of the plaintiff’s bar. You get smart, eloquent plaintiff’s lawyers — who happen to be hometown boys — and a malleable judiciary whose impartiality is open to question. Then you come down in a $ 1,200 suit representing a far-off corporation that has to explain why its products made all these local people sick. You don’t want to be there.”

The Pascagoula courthouse gave Scruggs a home-field advantage, to which he added a willingness to hire the best talent from out of state. Scruggs early on used presidential consultant Dick Morris (recommended to him by brother-in- law Lott, another Morris client) to do extensive polling for Scruggs’s asbestos efforts. Long before Mississippi launched its tobacco suit three years ago, Morris did more testing for Scruggs and found juries would be more receptive if the lawsuit were based on reimbursing taxpayers rather than reimbursing smokers. Much has been written about how the ingenious strategy — suing the tobacco companies on behalf of non-smokers — came to small- town Mississippi trial lawyer Michael Lewis in a flash of inspiration in the spring of 1993. But Scruggs admitted for this article that Morris’s polling work began in the “late spring” of that year, and Morris remembered it as even earlier. Given the fact of Morris’s polling, it seems more likely the strategy was hatched by him and Scruggs.

If so, it would be indicative only of Scruggs’s any-trick-in-the book legal canniness. Particularly interesting is the timing of Mississippi’s suit, the first in the nation. In 1993, Mississippi passed a sweeping tort reform, to be fully effective in July 1994. The Moore-Scruggs suit was filed in May 1994, two months before the deadline. What’s more, the tort-reform rules applied only in circuit court; it is surely no coincidence that the suit against the national tobacco companies was filed in Pascagoula’s chancery court. (Mississippi is one of the last states to have chancery courts, a vestige of British-based equity law, and they’re usually used for divorces.) The choice of chancery court allowed Scruggs and Moore to proceed towards a nonjury trial that would have allowed one local judge to pass judgment. Unfortunately for Scruggs and Moore, interstate-commerce rules would also have allowed tobacco companies to petition to have the case moved to federal court. So Scruggs added to the suit a number of Mississippi distributors, a maneuver that kept the case where he wanted it.

Richard Daynard, a professor at Northeastern University Law School and chairman of the Tobacco Products Liability Project, thinks Scruggs will be remembered as the lawyer who ran the most risks to bring tobacco litigation forward. When Merrell Williams, an indigent temp, was faced with criminal prosecution for stealing thousands of pages of documents from tobacco company Brown & Williamson, it was Scruggs who became the whistleblower’s designated protector. Scruggs introduced Williams to Democratic congressman Henry Waxman, bought him a house and a boat, and paid him $ 3,000 a month.

Scruggs “was in a tricky position,” Daynard says, “and his behavior was both courageous and adept. He saw the right thing to do and went and did it.” The industry has put “a quite nasty interpretation on it,” according to Daynard, accusing Scruggs — at least up until the tobacco settlement — of putting Williams up to the task. “I think the interpretation couldn’t work under the facts,” Daynard says. “No one really doubts that Williams took the papers before he ever met with, or heard of, Dickie Scruggs. It’s hard to make the case that Scruggs conspired with Williams to commit the crime.”

By his own account, Scruggs has spent $ 2.5 million of his own money pursuing tobacco litigation. (His firm, Scruggs, Millette, represents 25 states’ tobacco suits.) It’s hardly a selfless investment: While much of Scruggs’s money has been used to prosecute the case, much of it has gone to buy political influence. Moore, first elected in 1987, routinely gets to fly around in Scruggs’s private jet, not just for tobacco business but also for campaigning. Scruggs was Moore’s largest campaign contributor in 1991, and lawyers who stand to profit from tobacco litigation gave $ 24,166 to his 1995 reelection effort.

Moore is not alone in getting flown around. Lieutenant governor Ronnie Musgrove, a Democrat who (as president of the state senate) has stymied further tort reform, also made liberal use of Scruggs’s plane during the last election. But given Moore’s award to Scruggs not only of the biggest piece of tobacco litigation but also of the lead role in a 1992 Mississippi asbestos suit that resulted in a $ 2.4 million contingency fee, this sort of in-kind contribution smacks especially of a quid pro quo.

If the tobacco deal is ratified by Congress, the amount coming to the very few law firms involved will be staggering. While estimates of $ 10-14 billion in total compensation have been bandied about, the true eventual compensation will probably be much higher. The figure is anybody’s guess, because most fee arrangements are secret — including Mississippi’s. “Early on, we told Moore we’d like to review his contract with the lawyers,” says an aide to Mississippi governor Kirk Fordice. “His response was, ‘Well, there is no contract.'” Moore has announced that Mississippi will not pay its lawyers through notorious contingency fees. But almost all the rest of the states will — at rates as high as 25 percent. With two dozen states in his portfolio, Scruggs could earn literally billions off the tobacco deal.

Minnesota attorney general Hubert H. Humphrey III (who opposes the tobacco deal as too lenient on tobacco) has a contingency-fee agreement with his own state’s lead firm, Minneapolis-based Robins, Kaplan. He thinks such fees are not unreasonable. “These people have put their businesses on the line. Obviously they have taken great risks. Basically, they have a right to 25 percent of what is recovered.” Humphrey admits that sounds high. “That has got to be taken in perspective by the court. There probably will be people who ask, ‘If those resources are available for attorneys, why can’t they be available for the taxpayer?'”

The fees are about more than money, though: They’re about the ability and inclination of the trial bar to reshape American politics over the years to come. Alabama senator Jeff Sessions, who sits on the Judiciary Committee, now holding hearings on the tobacco deal, has said, “If you can get $ 360 billion from one industry without a clearly stated cause of action, don’t think these people won’t go after another industry.”

Sessions is right. In mid-July, Scruggs’s colleague Ron Motley of South Carolina said, “We’re negotiating with AGs on another disease area. We’re also negotiating to take on some business-tort cases. And some consumer- protection cases.” A recent Forbes article mentioned a Washington man who in June sued Safeway, the supermarket chain, over a “milk addiction” that was clogging his arteries. Scruggs thinks one can read too much into that: “I don’t think he meant to challenge new products the same way we challenge tobacco,” he says. In other words: Trust us. Scruggs does add, though, that “there are many consumer-fraud-type cases out there that the attorney general cannot pursue for lack of resources.”

Such resources are easily forthcoming. The anti-tobacco trial-bar milieu is clubby and good-ol’-boyish. There is Motley, the great courtroom impresario of the bunch; Don Barrett, a Lexington, Mississippi-based anti-smoking activist; and Michael Lewis, the one credited with the inspiration to launch a suit along the lines suggested by Dick Morris. Many of these lawyers were brought together at Louisiana tort lawyer Wendell Gauthier’s request for a banquet at a New Orleans restaurant in 1994. Gauthier requested $ 25,000 from each of the lawyers to put into a fund to keep tort lawyers from being muscled off cases by deep-pocketed tobacco companies. (The companies’ classic description of their litigation strategy, according to one purloined memo, was a paraphrase of Gen. Patton: “We don’t win by spending all our money defending cases. We win by making the other guy spend all of his.”) The idea, according to Daynard, was to form “a bloc that couldn’t be knocked off.”

This money, of course, can go into politics as well as litigation. “They’re gonna have so much money in the next race that they’ll be able to buy any office in the state,” says one GOP activist in Mississippi. The state’s trial bar has not traditionally been one of the nation’s most powerful; Scruggs’s colossal asbestos claims were the first time anybody paid much attention to the state’s plaintiff’s attorneys. But since then they have begun to throw their electoral weight around. In 1991 when a vacancy came up on the state supreme court, then-governor Ray Mabus enraged the tort lawyers by awarding the post to a prominent malpractice-defense lawyer. So the trial bar recruited Chuck McRae, a former president of the Mississippi Trial Lawyers Association whom Reader’s Digest named one of the “Ten Worst Judges in America.” McRae, who is — surprise — also from Pascagoula, handily defeated Mabus’s medical-association-backed candidate in the following election.

Ten months ago, a confidential Republican-commissioned poll found Mississippi voters receptive to reforms that would cut into the ability of Scruggs and others to pursue ambitious litigation. Eighty-five percent favored a law that would limit contingency fees to 15 percent, 77 percent favored limiting some malpractice awards, 85 percent would stop the attorney general from hiring private lawyers who’ve contributed to his campaign, and 69 percent favored discontinuing contingency fees for lawyers hired to represent the state.

But such numbers are subject to change. It can be difficult to judge who’s right and who’s wrong when Republicans play politics with tort law and tort lawyers prey on companies to line their pockets.

That’s where Mike Moore comes in. Much of the foregoing makes it sound as if Moore is merely the beard for what is essentially the power politics of Scruggs and the Mississippi trial bar. He is that, but he is more than just the pretty face of product-liability entrepreneurs: He is the conscience they show off to the world.

Moore, now in his third term as attorney general, has never been in private practice. He did his undergraduate work at Ole Miss, where he was a long- haired rock musician, before heading to law school. Elected district attorney in Jackson County as a freshly minted lawyer, he made a name for himself by prosecuting corrupt sitting members of the county board of supervisors. Two years later, he was state attorney general.

Moore is not a run-of-the-mill Democrat. He has worked closely with the Clinton White House on crime, but no more closely than he did with the Bush Justice Department, where those who worked with him remember him fondly. ” Moore was extremely committed to fighting crime,” says one Bush official. Moore remains a death-penalty advocate and favors phasing out parole. Colorado attorney general Gale Norton has called him the most conservative Democratic attorney general in the country. Several of his most important staffers are Republicans. And right-wing Mississippi legislator Ken Stribling, the sponsor of much of Mississippi’s anti-abortion legislation, notes that when such legislation has been challenged by NARAL and the American Civil Liberties Union, Moore has successfully defended every bit of it. “He wouldn’t last long in the national Democratic party,” says Stribling. “He’s anti-crime, anti-drug, and pro-personal responsibility. He’s an honest-to-God moderate.”

Others, though, say that Moore is a down-the-line liberal who is simply dealing with the reality of a pro-life, law-and-order state. Moore supported President Clinton on the Brady bill, even though gun control is opposed by 97 percent of the population in some Mississippi districts. And despite the fact that the number of abortion clinics in Mississippi fell from dozens to a handful between 1987 and 1991, Moore, in a 1989 special election, attempted to forge a Cuomo-esque “personally pro-life but it’s up to the individual conscience” position.

Unsurprisingly, this public moral anguish and willingness to run against the tide has made Moore a hero to the local Gannett paper, the Jackson Clarion-Ledger, and to others besides. In early July, Moore was given the highest award the American Medical Association bestows on non-doctors. “He’s got a great, TV-oriented way of communicating,” says Stribling.

That seems to be another way of describing the blue-nose, Boy Scout bullying that Moore has perfected. He is a master of the empathic soundbite. ” I’m doing it for him,” said Moore, when he launched his lawsuit, hugging his little son. Tobacco, after all, is, according to the rhetoric, a “pediatric epidemic.” That’s why Moore is out to “punish” the tobacco companies, ” destroy” the Tobacco Institute, and “hurt” tobacco executives. With this kind of rhetoric, one can be sincerely surprised that Moore hasn’t put tobacco executives on trial for murder.

Moore is unlikely to be called a Babbitt because in addition to being a moralistic person, he appears to be a genuinely moral one. And a genuinely idealistic one — by his own lights, of course. One associate of his talks about a time a few years ago when Moore was musing aloud to a bunch of lawyer friends about how he’d love it, once he left office, if they could all get together and start a law firm.

“And everyone said, ‘Gee, Mike that’s a great idea. I’d love to do that with you.'”

“And Mike said, ‘Yeah. Just think: Think of all the good we could do for people. There’d be a lot of possibilities for pro bono work, and — ‘”

“And one of Mike’s friends said, ‘Whoa, Mike! Whoa!'”

One Mississippi Republican notes, “Operatives tell me Mike Moore is squeaky clean, but he has also created that perception for himself.” Moore can get carried away with his own moral self-aggrandizement, as he did in 1989 when he ran to fill the congressional seat of Larkin Smith, a Republican congressman who was killed in a plane crash. Moore, who had scarcely known Smith, was featured on the front page of several local papers grieving on his knees at the dead man’s wake, in a way that smacked of Clintonesque tragedy- milking. Moore complained: The photos were not his doing, and he was simply paying his respects the way a practicing Catholic would. Others claim Moore was reluctant to leave the dead man’s side until the cameras had had a chance to catch him there. It was the biggest mistake of the campaign, but it was hardly the only one. Favored going in, Moore had virtually no grass-roots base and got clobbered, finishing third of three candidates, behind Gene Taylor, who still holds Smith’s seat today.

Moore’s opponents consider him a grandstander, not least Gov. Fordice. When Moore first announced the suit in 1994, he did so without consulting the governor. And last year Fordice filed a suit (which never came to court) that challenged Moore’s right to sue tobacco companies for Medicaid payouts in the first place, since the governor is in charge of Medicaid. One Fordice aide describes Moore as “smooth, polished, charming, idealistic, hot tempered. And not the smartest guy I ever met.” Fordice was even more direct, picturesquely opining, “He makes me want to puke.”

Puke or not, Republicans worry that Moore’s politics is a winner. According to one Fordice adviser, “The attitude among voters is, ‘He’s an honest guy, he’s holding the pols’ feet to the fire, and now he’s bringing hundreds and hundreds of millions into the state.’ If I were in the shoes of certain Republicans holding statewide office, I would be watching him real carefully.”

The tobacco deal makes clear that Scruggs and Moore have brought something altogether new to politics. What is it, exactly? Dick Morris has the most grandiose idea of its implications. “It’s one of the forms of ‘triangulation, ‘ between government, individuals, and communities,” Morris says. It’s almost Tocquevillean in his telling, except that the “community” is partly government itself and partly a tiny sliver of the private sector that is making millions, or billions, off of private negotiations. That doesn’t bother Morris a whit. “Private negotiation is appropriate in the era of limited government,” he says. “More leadership and less government. That’s what Clinton has authored.”

Agreements like the tobacco deal might suggest something else: the collapse of representative government. Congress lacks the political will to make cigarettes illegal, and yet lacks the will to just sit there in the face of clamoring activists. So its members acquiesce in the making of what is basically private justice through the courts. Law professors have long regarded the tort system as de facto regulation, yet this is the first instance where the tort system has been used to impose a comprehensive regulatory regime. Moore says he’s even helping draft legislation, which is troubling to Alabama senator Jeff Sessions. “My view is the U.S. Senate doesn’t exist to ratify private agreements between litigants,” Sessions says (although he admits the situation is unusual because a huge industry has agreed to the idea that it’s not paying enough money to deal with the injuries caused by its product).

Sessions is in an excellent position to judge the settlement. He faced harsh attacks and heavy spending from the national trial bar in his 1996 Senate campaign, after a stint as attorney general during which he withstood great pressure from neighboring attorneys general to join the tobacco litigation. His reasoning was that the theory of law behind it is incoherent. (Sessions boasts that he takes no money from the tobacco industry.)

“You’ve got a group of attorneys general wearing the imprimatur of truth and justice,” Sessions says, “sort of being front people for a highly sophisticated and determined group of trial lawyers picking on an unpopular industry.” Sessions has identified better than anyone the essential corruption of the Scruggs-Moore partnership. The above-it-all, “for the children” moralizing of Moore would be reckless without the stop-at-nothing worldliness of Scruggs; the buck-raking Machiavellianism of Dickie Scruggs would be intolerable to the voting public without the catechistic pieties of Michael Moore.

There are elements of Carterism and Clintonism in this partnership. The crusading, brass-knuckles litigator and the holier-than-thou attorney general are archetypes of the New South. But a tobacco agreement that takes the arrangement national, and threatens to turn plaintiff’s lawyers and state- level prosecutors into virtual branches of the federal government, should worry us deeply. Even if it is an old story in Pascagoula.

Christopher Caldwell is senior writer at THE WEEKLY STANDARD.