RUSH TO (BAD) JUDGMENT

Rush Limbaugh has created Operation Chaos and is gleefully pronouncing its success. Its avowed purpose is to create disruption in the Democratic primaries by urging Republicans to cross-over and vote for Hillary Clinton, and thus extend the length and cost of the contest and erode Barack Obama's candidacy. The media and the pundits have focused on whether or not the tactic has been successful as its creator proclaims, but strangely, no one seems to be offended by this obvious attempt to subvert not only the Democratic elections but the democratic process as well.

What he has proposed is probably not illegal and undoubtedly constitutes protected speech, but isn't there something inherently wrong with using the airwaves to encourage millions of potential voters to engage in "dirty tricks", because that is all this really is. Republican voters are being asked to cast votes, not for the person of their choice, but merely to subvert the nominating process for the opposing party. Discussions of whether or not he has been successful are besides the point. For someone who purports to represent the conservative viewpoint and principles in this country, it is difficult to understand why he would urge and then boast about such under-handed tactics.

PRE-EMPTION EQUALS IMMUNITY

In its simplest terms, pre-emption means that where the federal government has acted, the states may not. The concept has a very practical basis. For instance, we could not have 50 states imposing varying regulations upon airlines. Where the federal government has declared a product safe or its warnings adequate, the states may not act to the contrary. If Congress intends to pre-empt the area, the states may not enter it. Contrary or varying state legislation is thus prohibited.


The more problematic question arises in respect to jury trials which involve the common law of a state rather than its legislation. A number of current cases are being defended on the basis that FDA approval is an absolute defense, and that permitting juries to find approved products unsafe or approved warnings inadequate violates the principle of pre-emption---the theory being that a jury verdict is a form of state law that runs counter to federal law.


The subject has more than a passing interest to me, because I was confronted with the identical issue in the Cippolone case. The tobacco companies argued that the warning labels, mandated by Congress, prohibited a plaintiff from asserting that the warnings were inadequate; that permitting a jury to conclude that different warnings were required, in effect, would be tantamount to state action requiring a revision in the warnings in order to avoid future liability.

I struggled with the issue, but ultimately concluded that plaintiff's claims would not be pre-empted, if it was demonstrated that the defendant tobacco companies knew that the warnings were inadequate---that they knew that cigarette smoking was far more dangerous than it "may be hazardous to your health." I was also influenced by proffered evidence that the companies were engaged in a concerted campaign to neutralize the warnings through their advertising and public relations. I viewed government standards as a minimum requirement. If a builder knows that a construction standard is unsafe, he should not escape liability by asserting he followed the building code. If the FDA approves a product, the manufacturer, nonetheless, should be liable for injuries sustained, if it knows that the product is unsafe or the approved warnings inadequate.


Both the United States Court of Appeals for the Third Circuit and the Supreme Court reviewed my opinion. I will not attempt to summarize what they concluded. Justice Scalia indicated that it gave the courts complicated guidance for future cases, so I will let wiser minds unravel it. When Congress immunized gun manufacturers from liability, I then asked why it would single out an industry to protect that made a product that killed people rather than the drug industry which makes products to save lives. The latter would certainly make more sense. But now that it is on the table, I am not now certain that even the most beneficial industries should receive immunity under the pre-emption doctrine.

Considering that government agencies may be overworked, uninformed or even negligent, their approval should create a presumption of safety, but someone injured by the product should be permitted to rebut that presumption by establishing that the manufacturer knew the product was unsafe or its warnings inadequate. Government approval should be a factor, but not necessarily the dispositive one. A person injured by a dangerous, defective or unsafe product should not be barred from recovery merely because the product has received the government's stamp of approval. The manufacturer may have sought that approval, but it is the consumer who has relied upon it. The quest for uniformity should not supersede an individual's right to be compensated.

END PROSECUTOR PRESS CONFERENCES

It can come as no great surprise that persons engaged in adulterous relationships, deny their existence. If those denials are made under oath, they constitute perjury. Whether or not such perjury warrants prosecution is a matter of discretion for prosecutors. However, once that discretion is exercised in favor of filing charges, prosecutors, in announcing the indictment, should not render their closing argument in a press conference.

Wayne County Prosecutor in announcing the indictment against Detroit Mayor Kwame Kilpatrick said: "Our investigation has clearly shown that public dollars were used, people's lives were ruined, the justice system severely mocked and the public trust trampled on." My reaction: Save it for the courtroom!

In Denver last year, City Attorney Larry Manzanares committed suicide after being charged with stealing a state-owned computer, which the district attorney announced at a press conference contained pornographic material.

Unless prosecutors wish to ally fears by announcing the arrest of persons such as serial murderers or rapists, no legitimate purpose is served by press conferences outlining the evidence against the accused. In the Denver case, the district attorney defended himself by saying that he had treated Mr. Manzanares the same as everyone else. Therein lies the problem.

The Duke case should have taught all prosecutors the potential unfairness and dangers of such conduct. Present your evidence and summations in court, not in the media.

MANDATORY RECUSAL FOR JUDGES

Adam Liptak, once again, has pointed up one of the failings of our judicial system (N.Y. Times 1/29/08)----namely that judges preside over cases in which lawyers and litigants contributed to the judges' election campaigns. The article cites a study by Professor Vernon Valentine Palmer which indicates that those who contributed had a higher success rate from those judges to whom they had made contributions. Whatever the significance of the study, no evidence of favoritism should be necessary. As Mr. Liptak and Prof. Palmer both suggest, a judge should recuse himself from presiding over any case in which a lawyer or litigant has contributed funds to the judge's election. The appearance of impropriety is there absent any proof of favoritism; the existence of such proof makes the suggestion even that more compelling.

Although Mr. Liptak indicates that "you do not have to do away with elections", it is certainly a goal worth exploring. The average voter does not have the slightest idea whether or not the person running will make a good judge or even what constitutes the necessary qualities or qualifications. Judges running for re-election are frequently judged on the popularity of their decisions or the lack thereof----hardly a criterion for continued service. The most unpopular judge can be the best. Added to all this is some of the unseemly campaigns and the issue raised by the article about the influence of contributions.

Can you imagine a lawyer or a litigant in the middle of a trial walking up to the bench and handing the presiding judge a check! It is difficult to distinguish that scenario from a contribution made at an earlier date. So long as judicial elections exist, the integrity of the system requires that Prof. Palmer's admonition be followed: Judges should recuse themselves in cases in which either a lawyer or litigant has contributed to their election.

WILL THE DEMOCRATS FIND A WAY TO LOSE?

The Democrats, after receiving a clear mandate from the people, (among their priorities) chose to alienate two of our few remaining and most important allies, by condemning the Turks for their treatment of the Armenians about 100 years ago and the Japanese for their treatment of women about 50 years ago. Although the condemnations may be fully justified, the timing is mystifying. Now, following some of the most inspiring moments in our political history arising from the Iowa caucuses, Congress has decided to take up the burning issue of whether Roger Clemens or Brian McNamee is telling the truth about Clemens' steroid use.



While the candidates seeking the country's highest office are debating terrorism, health care, poverty, the environment and education, those in office are seeking to determine whether or not a baseball pitcher's earned run average should receive an asterisk! And while on the subject, although I have the greatest respect for Sen. Mitchell, should there not be greater outrage that one person has investigated, convicted, punished and destroyed the reputations of an entire group of persons without charges, a hearing or a trial? The only thing missing seems to be waterboarding.

But, in any event, certainly his report has furnished all of the information that anyone, including Congress, could possibly need or want on the subject. I suspect that if the scheduled baseball hearings were sans video, a number of committee members might find the need to attend to more pressing matters.

THE GOTCHA GENERATION

I confess that I have never seen the TV program To Catch a Predator, but I have seen the
promotions for it. I cannot understand why anyone would want to see these pathetic people humiliated and embarrassed week after week. I suppose the show can be justified on the basis that it provides a warning and serves some deterrent purpose, but it is just as likely to make the predators more cautious, assuming any of them actually watch the program. Finding them and arresting them serves the public good, but televising the moment mystifies me. Joy in the humiliation of others seems like a fairly lame format to justify a TV show (although I suppose American Idol does it for a while).

Which brings me to the case of Senator Larry Craig. First let me concede the irrefutable: yes, he pleaded guilty to a crime, albeit disorderly conduct. Yes, he is a hypocrite, as are all of his friends and colleagues who failed to come to his aid. It is quite ironic that it may be his repressive, anti-gay policies and those of his colleagues which may have created the need to seek gay sex in public bathrooms rather than out in the open. Yes, the police officer was doing his job, and it was not entrapment. Yes, prominent persons should not receive preferential treatment. But, should tapping one's foot and waving one's hand in an effort to solicit consenting sex warrant the death penalty?

There is very little about the Senator's voting record with which I agree. His hypocrisy offends me much more than his conduct. But I am certain that elected officials have been caught for other disorderly conduct offenses and sent home with a warning by the police officer. The solicitation of sex with a prostitute does not seem to bring ethics charges or demands for resignation from public office. His conduct certainly had nothing to do with the performance of his official duties. Let's face it: it's the "gay thing".

Would not a stern warning have sufficed rather than the destruction of an entire lifetime of public service, humiliation for him and his family and his inevitable resignation? Yes, the Senator was stupid and he brought this upon himself, but should we not have some sympathy and compassion for a person in such a high position who feels compelled to seek sex in an airport's men's room? Does the punishment fit the crime; or is this just another TV show celebrating humiliation. Gotcha!

CUT AND RUN OR STAY AND DIE?

Neither is a fair characterization of the alternatives. But the Bush administration mocks the Democrats for either their failure to have any plan regarding Iraq or their proposals for troop withdrawals. The administration (always better at devising advertising slogans rather than actually governing) characterizes the Democratic plan as "Cut and Run", and now points to the consequences of leaving Vietnam, citing the killings that followed our withdrawal.

No one can quarrel with the noble goal that we should attempt to combat the senseless killings of mass numbers of civilians wherever it should occur. But in deciding when and where to intervene, as part of the equation we must calculate how much we are willing to sacrifice. What would have been the cost in lives and wounded if we had remained in Vietnam? No one asks this President: How many American deaths, disabilities and dollars are you willing to expend in this elusive goal of bringing peace and democracy to Iraq?

The administration's position conjures up this analogy for me: Arsonists (the Administration) start fire to a building, and residents and firefighters are killed. When it appears that the building is about to collapse causing further deaths to both groups, the Arsonists (the Administration) who caused the fire in the first place, take their megaphones to the streets and shout at the spectators (the Democrats): "What are you going to do about this?"

Because of the quagmire that this President has created, there may be no adequate solution, but when the Democrats respond with a variety of proposals, only this Administration could say with a straight face-----that proposals to bring the troops home to safety put them in harm's way, while keeping them in Iraq indefinitely---does not!

YOUR MONEY OR YOUR RIGHTS?

Adam Liptak reports in the N.Y. Times (7/16/07) that welfare recipients and applicants in San Diego are subject to unannounced visits and searches to assure that they are not defrauding the government. In other words, those "who want public benefits must give up their privacy", and apparently that means their rights under the Fourth Amendment regarding searches and seizures. Wow, what a great idea!

If that is the law and I were a law enforcement officer, I would be so ecstatic I wouldn't know where to begin. First, I think I would be tempted to bust into the offices of the defense contractors to see what evidence I could find of over-billing. But wait, maybe barge into those oil companies with their large subsidies to see whether or not there is any evidence of price fixing. But hold on, what about the cigarette companies and their tobacco subsidies and the possibility of gazing at those scientific reports they have and comparing them with what they have been saying for years to the public about their products.

The welfare investigators who happen to come across evidence of other crimes pass that information on to the appropriate law enforcement agency. So if any of the above corporate searches don't hit their original targets, maybe we can still find some tax evasion or bribes just by rummaging through their books in the same way the welfare investigators rummage through drawers looking for men's underwear.

However, the corporations receiving tax benefits or subsidies from the government should have the same opt-out options as the welfare recipients. Mr. Liptak points out that "the majority in a divided three-judge panel indicated "that people are free to opt out - by giving up their welfare benefits." In other words, welfare recipients (as in one of those game shows) can keep the money and give up their Fourth Amendment rights, or keep the rights and starve --both themselves and their families. Sounds fair to me.

So, corporations should have the same privilege. They can keep their subsidies, their tax breaks, their government contracts as long as they give up their Fourth Amendment rights, or they can retain those rights and give up the benefits. Right!

The purpose of these unannounced searches is laudable---to root out welfare fraud. But welfare fraud is a crime, and merely because it is "welfare" should not make the Bill of Rights inapplicable. When the poverty line was established it was not meant to provide that those who fall below it surrender their constitutional rights.

IS PRESIDENT BUSH ADDICTED TO THE IRAQ WAR?

When sensible and reasonable people go to Las Vegas, they usually decide in advance how much they are willing to risk at gambling and stop when that is gone. However, there are those so addicted to gambling that they continue to bet no matter how much they have lost in the hope of gaining it all back and eventually winning. They will borrow if necessary, and risk what they own and even what they do not.

Everyone concedes that there are considerable risks both in staying in Iraq and in leaving, or what is now described as re-deployment. In all of the press conferences with the President, despite some very direct questioning, no one has asked the question: "How much are you willing to risk in American lives and limbs in order to win in Iraq? Is there a number in dead and wounded that would cause you to abandon your goals in Iraq? "

Do we have a President who has brought to the table the number of American lives and wounded he is willing to risk, or an addict who cannot stop irrespective of how much our soldiers have lost or may lose?
Where are you David Gregory?

THE RESTROOM ATTENDANTS' LOYALTY OATH

In view of the current revelations regarding the administration's suppression and control of the Surgeon General, it is apparent that no branch of the government has escaped politicization. I envision the government's restroom attendants lined up every morning at attention, mops on their shoulders, pails at their sides and hands on their hearts reciting the "Bushie" loyalty pledge.

In respect to both the U.S. Attorneys and the Surgeon General, the President's press secretary has said that the President should be able to carry out his own policies. No one can quarrel with that statement, except when those policies further partisan interests rather than the public interest. The administration can properly establish priorities for United States Attorneys in focusing on particular types of criminal activities, but it cannot and should not seek to use the criminal justice system to accomplish political gains or to protect political allies.

It can encourage and even direct the Surgeon General to focus on particular scientific and medical areas, but it cannot and should not attempt to conceal reports and information which would serve the public interest. The White House has chosen to deny the accusations of Dr. Carmona that he was directed not to speak about stem cell research, sex education and prison health care and that a report on the dangers of second hand smoke was "watered down" and delayed. (NYTimes 7/11/07) But denials by this administration of any wrongdoing or falsity are so automatic that it is fair to treat them simply as admissions. One only need ask what possible motive could Dr. Carmona have for fabricating all of these stories?

But nothing better symbolizes the priorities of the current administration than its efforts to discourage support for the Special Olympics solely because of its historic ties to the dreaded Kennedy clan. Dr. Carmona was asked by a senior official: "Why would you want to help those people?" By those people, he, of course, meant the Kennedys, but in turn, the administration was willing to forgo support of an event and organization that gives encouragement and aid to thousands of special children. But for an administration that would rather see people die than allow stem cell research, it should come as no surprise in a choice between hurting a cause sponsored by the Kennedys or helping that worthy cause because of the good that it does, that they would pick the former over the latter. Politics has infected every corner of this administration, and apparently even the Surgeon General, the country's chief doctor, has suffered from its effects.