News Intelligence Analysis
From OrwellianTimes
What Kind of Justices Will Bush Appoint to the Supreme Court?
During the last debate, Bush was asked about the type of justices he would appoint to the US Supreme Court.
I thought his response was utterly nutty:
MICHAELSON: Mr. President, if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who would you choose and why?
BUSH: I'm not telling.
(BUSH LAUGHS)
I really don't have -- haven't picked anybody yet. Plus, I want them all voting for me.
(BUSH LAUGHS)
I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.
Let me give you a couple of examples, I guess, of the kind of person I wouldn't pick.
I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.
Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.
That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.
And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.
And I suspect one of us will have a pick at the end of next year -- the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.
Thank you.
First, you note how Bush admits here that he might lose: "I suspect one of us will have a pick at the end of next year -- the next four years." In the first debate, Bush basically refused to answer a question on the basis that he will certainly win.
Second, Bush makes a deliberately misleading reference to the Pledge of Allegiance case:
I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.
I really doubt Bush has read that case. But I have. The case is correctly decided. It's not even a close call. The words "under God" in the Pledge are a religious reference -- and an illegal one. Contrary to Bush's assertion, the Ninth Circuit Court of Appeals did not rule that "the Pledge of Allegiance couldn't be said in a school because it had the words 'under God' in it." The court said those two words were improper, not the entire Pledge. The court did not say that any kid who wants to add the words can't or shouldn't. The court simply said that it was unconstitutional for schools to teach and tell kids to recite those two obviously religious words.
Bush should know that strict construction of the Constitution has nothing to do with the decision in this case. Rather, the Ninth Circuit applied previous cases (precedents) to determine the constitutional course of action. That's what courts do -- they use previous cases to interpret the words of the Constitution. As such, his references to strict construction here are just weird. Or, so I thought at the time.
Third, Dred Scott? What on Earth is he talking about? The Constitution "doesn't speak to the equality of America"? Huh?
The Constitution does speak to equality in America. The 13th Amendment outlaws slavery. The 14th Amendment requires that everyone be provided equal protection under the law. The 15th Amendment reqires equal voting rights for everyone, irrespective of "race, color, or previous condition of servitude." These are the Amendments which overruled Dred Scott.
Why was he talking about strict construction and Dred Scott? I just thought he was giving another stupid answer.
Via Washington Monthly[*], we learn what the connection is between Dred Scott, strict constitutional construction and the religious right. You see, Dred Scott is religious right code for abortion . . . Roe v. Wade!
Bush couldn't say that in plain language, because it would freak out every moderate swing voter in the country, but he can say it in code, to make sure that his base will turn out for him. Anti-choice advocates have been comparing Roe v. Wade with Dred Scott v. Sandford for some time now. There is a constant drumbeat on the religious right to compare the contemporary culture war over abortion with the 19th century fight over slavery, with the anti-choicers cast in the role of the abolitionists.[*]
So the Dred Scott reference is a message to his anti-abortion supporters. As Paperwight says, if you doubt it -- here.
And here's the really scary part:
And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.
Bush pledges to apply an anti-abortion litmus test so that he can appoint judges who will overrule Roe v. Wade.
This is big stuff. Tell everyone.
4:58:57 PM |
Bush-Cheney and the Great Tort Reform Lie
In the debates so far, Bush and Cheney are pushing their "tort reform" platform hard. Problem is, that they are not looking to reform the tort system for our benefit -- they are looking to eliminate our rights to enrich corporations.
The Bush-Cheney argument is constructed on a chain of lies: Frivolous lawsuits are wildly driving up the cost of medical care in the country. Doctors are being driven out of business because they can't pay the insurance premiums. Premiums are being driven up beyond reach because of frivolous lawsuits. Capping damage awards will stop the uncontrolled, upward spiral cost of premiums generated by frivolous lawsuits. Most importantly, these insurance premiums are driving escalating medical costs.
Lies. Lies. Lies. Lies.
Medical malpractice payouts are less than one half of one percent of total U.S. health costs. In 2002, the payouts were less than were a little more than one third of one percent of total U.S. health costs -- 0.38%.
For almost the last two decades, malpractice premiums have been dropping as a percentage of total U.S. health costs. Back in the late 1980's, premium costs were just under 1%. Around 2000, they had dropped to approximately one half of one percent. In 2002, total premiums were little more than half -- 0.58%.[*]
So malpractice insurance companies are pocketing about 0.2% of total U.S. health costs for themselves.
Frivolous lawsuits are not driving up the cost of medical care or insurance premiums. Note that you never hear Bush-Cheney define the legal term "frivolous." Rather, they misuse the term and claim that frivolous lawsuits generate huge income for plaintiffs and their lawyers. Lies.
"Frivolous" is a legal term of art. The common meaning of the word -- "not serious" -- is not the legal meaning. "Frivolous" in the legal context means without any legal merit whatsoever. A "frivolous" lawsuit is one which no lawyer, reasonably considering the facts and the law, would contend has merit. In other words, a frivolous lawsuit is one which no lawyer reasonably would think has a chance to win.
Think about it: frivolous cases don't win huge jury awards -- they have no chance of winning! They lose. A case that wins by definition has merit and cannot be frivolous. Get it? Of course, not all cases that lose were meritless -- one side always loses at trial. Frivolous cases are a small percentage of all the cases that lose.
Consider the reality of practicing plaintiffs' medical malpractice law. You make your living by winning cases. You take these cases on a contingency basis. That means that you don't get paid a penny in attorneys' fees unless you win. On top of that, you pay all the costs of bringing the case. You won't see a penny of that back unless you win. And prosecuting medical malpractice cases is very expensive -- often in the tens of thousands of dollars -- far more expensive than defending them. You are going to be very, very careful to bring only those cases you think will win. If you don't, you will go out of business very, very quickly.
Perhaps Bush-Cheney are arguing that juries are awarding huge sums on cases which have no merit whatsoever. To do so would be to directly undermine the jury system -- which is one of the pillars upon which our society is based. To argue that juries cannot be trusted is about as un-American as you can get.
In reality, anyone who argues that frivolous cases make up more than a small percentage of medical malpratice cases is either completely ignorant of the truth or is a liar.
Since frivolous lawsuits generate no awards for plaintiffs and their attorneys, capping damage awards will do absolutely nothing to control frivilous lawsuits. But Bush-Cheney offer no plan to curb frivolous lawsuits other than caps. So the real purpose of the Bush-Cheney plan must be to affect cases with merit rather than frivolous cases.
What Bush-Cheney propose is to limit jury awards for pain and suffering and punitives damages. Again, they assert that these awards are sending the cost of medical care through the roof.
More lies.
The law recognizes three kinds of damages in these types of cases: General damages, special damages and punitive damages.
General damages are those damages which are not easily reduced to a dollar amount -- think pain and suffering, lost enjoyment of life.
Special damages are those damages which are easily reduced to a dollar amount -- think medical bills, lost wages.
General and special damages are awarded to compensate the injured party for his/her injuries. The law does not allow a jury to award more money than to fully compensate the victim. Judges have the power -- which they exercise -- to reduce damages in cases where they think a jury awarded too much.
Punitive damages are those damages awarded to punish the defendant for the most despicable conduct -- think of the hospital which regularly allows someone to perform surgeries while knowing that person is not a doctor. These damages are intended to cause the defendant to never act in that way again.
A cap which limits general damage awards to $250,000 does one thing only: It limits compensation to the people who have suffered the most general damages. That is, these caps limit compensation only to those people who go through the most pain and suffering caused by malpractice.
Now to the contention that awards for compensation are running up the costs of health care.
Consider the legal rule in a run-of-the-mill malpractice case. Such a medical malpractice case is a negligence case. To win, the plaintiff must prove that each of these elements of negligence exists:
The doctor owed a duty of care to the plaintiff.
The doctor breached the duty of care.
The breach of the duty of care caused . . .
Harm to the plaintiff.
Let's ignore all of the elements but number 3 -- causation. For
the plaintiff to win, he/she must prove that the doctor caused
him/her harm. The jury award will be for an amount of money the
jury decides the doctor caused the plaintiff. In other words,
the jury award does not directly increase the costs of medical
care one single cent -- the jury simply decides the dollar value
of the harm the doctor caused the victimized patient.
The amount of jury awards is a measure of the amount of money doctors have cost our health care system through their negligence. Capping damages awards will not save the health care system anything, unless you do not consider patients to be part of the health care system. With caps, insurance companies certainly end up paying out less money for judgments. Those insurance company windfalls are paid for directly by the completely innocent victims of malpractice. Why do Bush-Cheney want to shift the burden of these catastrophic errors from the corporations that promise to pay the cost to the utterly innocent victims? I'm sorry, but that is just plain evil.
And talking of evil: The cap proposal has no requirement that insurance companies have to pass on their savings to doctors. Those states which have enacted these unfair burden-shifting statutes have enjoyed no reduction in insurance premiums.[*] Great plan: The most injured, innocent victims get to shoulder the cost of medical malpractice while doctors continue to pay high premiums. While the Bush-Cheney plan will accomplish absolutely nothing to reduce health care costs or doctors' malpractice premiums, it will seriously harm innocent victims and enrich corporations.
But if lawsuits aren't driving insurance premiums dramatically higher, what is? Insurance company mismanagement and greed. Insurance companies make much of their money off of investments. They use premium dollars to make those investments. Years with high interest rates tend to equal high investment returns and low premiums. Years with low interest rates tend to equal low investment returns and high premiums. Given today's very low interest rates, and resulting low investment returns, insurance company profits are going to be squeezed by low premiums. Hence, a manufactured liability insurance crisis[*]:
But what ultimately proved to be the true cause of the "liability
insurance crisis" of the mid-1980s was not the legal system
at all. Study after study that examined the property/casualty
insurance industry found that the "insurance crisis"
was actually a self-inflicted phenomenon caused by the mismanaged
underwriting practices of the industry itself.
The insurance industry's profits and underwriting practices are
cyclical, often characterized by sharp ups and downs. In fact,
these underwriting practices and the insurance cycle caused a
similar, less severe "insurance crisis" in the mid-1970s.
During years of high interest rates and/or excellent insurer
profits, insurance companies engage in fierce competition for
premiums dollars to invest for maximum return. Insurers lower
prices and insure very poor risks just to get the premium dollars.
In the mid-1980s, the cycle's effects were exacerbated by a particularly
exaggerated underwriting response to the high interest rates
of the early 1980s, characterized by such risky underwriting
as insuring the MGM Grand Hotel months after it burned down in
a fire.
By 1985 when interest rates had dropped and investment income had decreased accordingly, the industry responded by sharply increasing premiums and reducing availability of coverage, creating a "liability insurance crisis."
As Business Week magazine explained a January, 1987 editorial:
Even while the industry was blaming its troubles on the tort system, many experts pointed out that its problems were largely self-made. In previous years the industry had slashed prices competitively to the point that it incurred enormous losses. That, rather than excessive jury awards, explained most of the industry's financial difficulties.
The Ad Hoc Insurance Committee of the National Association
of Attorneys General concluded after studying the "crisis"
in 1986:
The facts do not bear out the allegations of an "explosion"
in litigation or in claimsize, nor do they bear out the allegations
of a financial disaster suffered by property/casualty insurers
today. They finally do not support any correlation between the
current crisis in availability and affordability of insurance
and such alitigation "explosion." Instead, the available
data indicate that the causes of, and therefore solutions to,
the current crisis lie with the insurance industry itself.
State commissions in New Mexico, Michigan and Pennsylvania reached similar conclusions. "Even the insurance industry admitted this internally. In 1986, Maurice R. Greenberg, President and Chief Executive Officer of American International Group, Inc., one of the country's leading property/casualty companies, told an insurance audience in Boston that the industry's problems were due to price cuts taken "to the point of absurdity" in the early 1980s. Had it not been for these cuts, Greenberg said, there would not be "all this hullabaloo" about the tort system."
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