Latimer on Law

Tort Reform and Other Shibboleths of the Wingnut GOP

                                            Tort Reform and Other Shibboleths of the Wingnut GOP

                                                 The contingent fee is the poor man's key to the courthouse.

             But there is one way in this country in which all men are created equal-there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. . . . Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal."

              - Harper Lee, To Kill a Mockingbird    

             It is unwise to pay too much but it is worse to pay too little. When you pay too much you lose a little money. When you pay too little you sometimes lose everything because the thing you bought was incapable of doing the thing it was bought to do. The common sense law of business balance prohibits paying a little and getting a lot. It can't be done.

             - John Ruskin

            In any health care lawsuit, the amount of noneconomic damages, if available may be as much as $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury.

            -Amendment in the Nature of a Substitute to H.R. 3962, Div. C, Sect. 302(b)

               The GOP's all-out obstructionist war on President Obama's efforts to restore prosperity and equality to American society is focused right now on the issue of health care.  It's just one of many fronts, but as GOP Senator Jim DeMint of South Carolina has stated they want health care to be Obama's "Waterloo," public health and welfare be damned.

              Predictably, the Republican scaremongering has focused on the big government bogeyman - not when that big bad federal government steps up to bail out private corporations after they run the economy into the ground, mind you, nor when it starts an overseas war of corporate opportunity to steal another country's natural resources as in Iraq.  No, the big federal government is bad only when it proposes to provide a basic service like health care both fairly and economically for all Americans.

             That's when we hear all the tried and true right wing shibboleths, calling Obama's public option health care plan "socialism."  Never mind that the Constitution expressly states at Article II, Section 8, that the federal government can raise taxes for the specific purpose of promoting the general welfare -where nothing could be more in keeping with that objective than providing adequate health coverage for everyone. 

            Never mind, too, that neither the word "socialism" nor "capitalism" is found anywhere in the Constitution, as they are merely economic models, either or both of which can comfortably work within the constitutional framework of our democratic government.  No, that just can't work for the Republican right wing, the success of publicly funded health care in other democracies aside, because it contradicts their small-government, anti-tax ideology.  Ronald Reagan's Freudian slip that "facts are stupid things" sums it up nicely for them, because the facts always get in the way of  their right wing ideological purity.

              So the GOP true believers still cling to that laissez faire nonsense based on Adam Smith's magic "invisible hand" that guides the unregulated market to attain the best of all possible worlds.  You know, that's where greedy profit oriented entrepreneurs working solely in their own self-interest will somehow, presto, achieve the best possible outcome for everyone.  But Adam Smith wasn't around in 1929 or 2008, was he?  After the crash of 2008, even the staunchest latter-day intellectual exponent of that nonsense, Alan Greenspan, had to admit after the debacle of the Bush administration became manifest, that he and the John Galts of the world were wrong all along. 

           Meanwhile, the GOP has finally released a draft of its own Insurance Industry Relief Bill of 2009 this week -otherwise known in GOP double speak as a "health care reform" bill, and its preface contains all the usual right wing shibboleths straight from the Ouingnut Ouija board, including taxes, privatization vs. big government and, of course, "tort reform."  That one's a beaut, too, blaming all excessive health care costs on doctors scared of being sued as opposed to, say, insurance industry greed. No, Dorothy, don't pay any mind to that man behind the curtain because we're still in Oz as far as the GOP is concerned.

            So let's think this through. When you have that pain in your chest or lump on your breast you want to go to the doctor who tests you only because he's scared of being sued as opposed to the doctor who takes advantage of the latest diagnostic technologies in order to get it right and provide you with appropriate treatment, consistent with the oath he took.  You want the doctor who, because of lower insurance premiums, will say to hell with all that testing junk and just make his diagnoses by throwing darts and seeing where they hit so he can make his tee time. Isn't that right, Binky?  Well the wingnut GOP solons in Washington apparently think you're that stupid -in fact, they're depending on it.

          So-called "tort reform" is one of the most enduring of the right-wing GOP shibboleths.  President Obama wants real health care reform, to make affordable health care available to everyone while getting doctors paid fair compensation by reducing or, even better, eliminating insurance industry profiteering from the equation. Obama's approach recognizes that the real difficulty with providing affordable health care today is based on insurance industry excesses having little or nothing to do with actually getting your doctor paid.  Just consider how much of your premium dollar, or your employer's, actually gets to pay the doctor.

           There are the outsized insurance executive salaries, bonuses and perks, the risky speculative investments, the competition based on expensive media advertising rather than actual competitive pricing, the self-aggrandizing real estate development with phallic office towers jutting up over every major city skyline, the high priced corporate lawyers fighting with unlimited budgets against local plaintiff's lawyers who dare question a claim denial in court and the cadre of lawyers and actuaries hired to devise "perfectly legal" ways to deny the coverage we pay for.  That's all in addition to the millions being paid to the swarms of K-Street lobbyists talking to your congressman as you read this.

          Only then, after being repeatedly stepped on by such non-essential costs does the first penny of your premium dollar go to paying your doctor.  The GOP is blind to those factors as the real source of the problem because they don't fall into lockstep with right wing "free market" ideology.  For them the problem must be the tort lawyers, and here we see a right wing double-dipper as well.

           The GOP's right wing corporatists get to stick their chips into our dip twice with this one, so forget about reforming the health care system in ways that will actually benefit both doctors and patients by reducing insurance industry profits.  Here, the GOP proposal for "tort reform" seeks mainly to protect health insurer profit margins by presumably getting doctors to order fewer costly tests like MRI, CAT Scans et cetera, characterized as "defensive medicine," while at the same time certainly protecting liability insurer profitability immensely.

           They seek to protect liability insurer profitability by putting arbitrary and wholly inadequate limits on tort recoveries by patients injured or killed by a doctor's negligence, as with the Amendment in the Nature of a Substitute to H.R. 3962, Sect. 302(b), offered this week by Mr. Boehner of Ohio on behalf of the Republican Party:

 In any health care lawsuit, the amount of noneconomic damages, if available may be as much as $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury.

This would limit the total amount any personal injury claimant can receive from any and all sources for "non-economic loss."

           "Non economic" loss means anything other than direct medical costs and lost earning capacity.  This term includes intractable pain, loss of a limb, severe scarring  and other disfigurement, loss of sight or hearing, loss of sexual function, severe depression, anxiety et cetera, all of which would be limited to $250,000 -or about five percent of the cost of an insurance CEO's private jet -assuming he's a stiff who buys a low end bird for around six million.

            While they're at it, the GOP corporatists have also slipped in liability limits for drug manufacturers and corporations making medical devices that malfunction, or are inadequately designed, causing death or serious injury:  

The term "health care lawsuit means any health care liability claim concerning the provision of health care goods or services or any medical product. . . .

See Amendment in the Nature of a Substitute to H.R. 3962, Div. C, Sect. 307, Definitions (7).  Here, by the reference to "health care goods . . . or any medical product," we see "tort reform" working not only for doctors who screw up under principles of medical malpractice but also for manufacturing corporations of medical devices under principles of product liability law.

            This way, the GOP seeks to protect both health insurer profiteering and liability insurer profiteering in one neat package, without really doing anything to expand coverage to all Americans or control the costs of health care.  Never mind the fact that in states that have enacted so-called tort reform, Texas for example with a liability cap on damages for pain and suffering since 2003, it has had zero effect on curbing the escalation of health care costs.   Consider the following facts:

(1)        The limit of $250,000 on pain and suffering for med mal cases in Texas has in fact reduced malpractice insurance premiums by about 30 per cent, but the consumer's cost for medical services and for health insurers has risen, clearly indicating that the real benefit goes to the insurers -people like the "too big to fail" AIG, rather than either the doctors or the patients:

 http://www.dallasnews.com/sharedcontent/dws/bus/columnists/jlanders/stories/DN-Landers_21bus.State.Edition1.9be351.html

Thus, the GOP's latest proposal is just another cynical attempt to continue the parasitic scam that private health insurers have been working to bleed consumers, increasing their bottom line, while denying adequate coverage to more than 20 percent of Americans, mostly working people who aren't covered under ERISA and who don't earn enough to purchase coverage on their own.

(2)        The proposed GOP legislation also would cap the amount of punitive damages available in any case at $250,000 in states which allow for punitive damages at common law. Massachusetts, however, has never allowed punitive damages except in very limited specific contexts governed by statute, still our health care costs have risen by eight percent since the enactment of Romney's mandatory health insurance plan in 2006;

http://www.boston.com/news/local/massachusetts/articles/2009/05/28/more_mass_residents_report_trouble_paying_medical_bills/?page=2

Meanwhile, the cost of basic coverage for middle income earners in Massachusetts making $30,000 or so per year can exceed $9,000, almost one third of total income.

http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/03/02/mass_healthcare_reform_is_failing_us/

(3)        The proposed GOP legislation, at Sect. 303, would also place limits on the amount attorneys can claim as a contingent fee, similar to the one already in place under the Massachusetts Medical Malpractice Act of 1986.  This section, cynically, is entitled "maximizing patient recovery," which is to be accomplished by creating disincentives for attorneys to take meritorious cases where, due to insurance industry defense practices, even meritorious med mal cases have become prohibitively expensive.

            Let me give you a clear example of how this works based on my own experience.  I do not handle med mal cases as a rule, but several years ago I took the case of a woman who had been taking a treadmill test for a coronary problem when the doctor told her to take a rest but stay on the treadmill while he made some notes.  While she was standing there, the doctor clumsily hit the start button catching the patient unaware and causing her to fall ass over teakettle, and she suffered a broken arm.

            That should be an open and shut case of the doctor's negligence, right?  He was careless, if not in asking that his patient remain on the treadmill at least for hitting the start button without warning to her, and that carelessness was clearly the cause of her injury, all that is needed to make out a case of negligence generally.  But, oh no, this was medical malpractice, subject to the statute don't you know.  So, what should have been a routine negligence case with modest damages as we demanded, and minimal case expenses, became a full blown med mal case under the statute.

            We therefore had to present the case to a three-doctor medical malpractice tribunal as the statute requires, which typically serves to "screen" med mal cases by requiring that the plaintiff post a prohibitively expensive bond before proceeding through litigation.  The insurer who had such difficulty in seeing its way to simply make a reasonable offer to settle a case of obvious negligence had no trouble paying it's high priced law firm to oppose the case before the tribunal, adding significantly to litigation costs which, of course, were just passed on to the doctor in the form of a higher premium.

            Usually, when a case goes before the tribunal the plaintiff needs to retain an expert witness to testify as to the doctor's medical negligence, at a greatly prohibitive cost, which also benefits the liability insurers as a deterrent to medical malpractice suits.  I chose not to hire an expert, however, and the negligence issue was so clear that, after hearing and briefing the issue, the tribunal did not require that we post a bond.  After several more months of pre-trial discovery, the case finally settled for an amount we would have accepted in the first place if the insurer had just made a reasonable counter offer instead of seeking to derail this basically garden variety negligence case, and driving up litigation costs, by invoking the cumbersome and costly med mal tribunal procedure.    

          The GOP bill now pending in the House goes even further than the Massachusetts statute in restricting the rights of individuals injured by medical negligence, and like the Massachusetts statute and the Texas statute, there is no basis to believe it would even have the slightest effect in reducing health costs generally.  Yes, it may reduce your doctor's insurance premium somewhat, but in reality it is nothing more than the Insurance Industry Relief Bill of 2009.

          Such insurance industry relief would be paid for by you and me, of course, in the form of losing our common law right to just compensation for negligently inflicted injuries, while creating a statutory scheme which, if correctly premised by its proponents, will allow doctors who are so inclined greater leeway to cut corners when diagnosing serious and potentially life threatening conditions. 

            That's bad health policy and, as the Ruskin quote above suggests, bad economic policy as well.  If that's what is needed to maintain the present "free market" health insurance business, then it's just another clear argument in favor of a government run, single payer health care system that covers everyone and costs less in the long run by eliminating all those extraneous expenditures private insurers take out of your premium dollar. We need a different approach that allows the bulk of your tax dollar to pay your doctor's bill instead of grossly obscene insurance industry CEO salaries and bonuses, along with other irrelevant corporate costs, as your premium dollar does today.

58 comments »

KUMBAYA!

KUMBAYA!

This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence -- economic, political, even spiritual -- is felt in every city, every State house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.

            In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

                       - President Dwight David Eisenhower, Farewell Address, Jan. 1961

                                                    Someone,s laughing, lord, kumbaya
                                                    Someone,s laughing, lord, kumbaya
                                                    Someone,s laughing, lord, kumbaya
                                                    Oh lord, kumbaya

                                           - "Kumbaya," American folk spiritual, ca. 1930s

             In the last prior post I recited several pearls of wisdom about the proper use of power in world politics taken from the several public speeches by President Dwight D. Eisenhower.  I "plagiarized" them actually, because I quoted them without attribution.  I omitted attribution purposely, however, not to claim the ideas as original to me which I did not do, but simply to make a larger point about how far to the extreme right today's GOP has strayed from the constitutional ideals Ike bravely defended in W.W. II, and then courageously upheld while serving in the White House.

             As expected, certain people who chime in on this site from the far, far wingnut extreme of the political spectrum, took the bait hook, line and sinker.  Thus we heard from one of them:

 If you want to live in a warm and fuzzy Kumbayah type of world then we have common ground. If you are naïve enough to believe we can "compose differences, not with arms, but with intellect and decent purpose" then we are "open to debate."  

Well, like I said, that statement about composing difference not with arms but with intellect and decent purpose  was Ike's, not mine.  So what we are seeing with the post-Reagan, right wing GOP is a rejection of Eisenhower's "naïve" beliefs about the use of American power and influence.

           Moreover, all of the Eisenhower quotes I recited in the prior post are clearly much closer to the principles on which President Obama has based his foreign policy than the fear mongering shibboleths that defined the Bush administration.  For example:

The problem in defense is how far you can go without destroying from within what you are trying to defend from without;

 Every gun that is made, every warship launched, every rocket fired, signifies in the final sense a theft from those who hunger and are not fed, those who are cold and are not clothed;

In most communities it is illegal to cry "fire" in a crowded assembly. Should it not be considered serious international misconduct to manufacture a general war scare in an effort to achieve local political aims;

 This world of ours... must avoid becoming a community of dreadful fear and hate, and be, instead, a proud confederation of mutual trust and respect;

Though force can protect in emergency, only justice, fairness, consideration and cooperation can finally lead men to the dawn of eternal peace;

We will bankrupt ourselves in the vain search for absolute security;

When people speak to you about a preventive war, you tell them to go and fight it; and, yes,

Together we must learn how to compose differences, not with arms, but with intellect and decent purpose.

The fact is that those are the same principles which underlay Obama's Cairo Speech, e.g. America is not at war with Islam, and America is not engaged in Afghanistan to impose any kind of regime change but simply to neutralize al Qaeda and it's enablers as a real, hostile threat to our own security.

            These are principles which most of the free world outside the airless, toxic confines of the American right wing "think tanks" both appreciate for their own conduct of affairs, viz. the European Union, and welcomed hearing from an American president so much that they awarded him the Nobel Peace Prize just for advocating them. 

            No. Obama hasn't done all that much in his brief ten months as Commander in Chief to reverse the eight year debacle of Bush's tenure as the "Decider," but the Nobel is a clear message that the rest of the free world anxiously expects, and demands that Obama follow up on his principled words with equally principled actions. 

            Ike surely would tell those still carping from the extreme right that such principled actions are far less "naïve" than their simple-minded belief that American troops could invade a politically, ethnically and religiously fractured nation like Iraq and create a "democracy" that would welcome the invasion force with open arms and then roll over for the American petroleum industry like a puppy dog.  That wasn't merely naïve, it was stupid as events have proven.

            Saddam, was a brutal dictator who stifled all political dissent.  But he posed no real threat to American security, was both socially and religiously tolerant and stood as a viable obstacle to the expansion of Iranian influence in the mid-East. Thanks to Bush's "pre-emptive non-agression," however, Saddam's been replaced by a religiously and socially intolerant theocracy which, in principle, conforms more closely to Iran's religious, political and regional agenda than with American interests.  Those Bush clowns didn't even get the sweetheart oil deal for Exxon-Mobil that was the real purpose of invading Iraq in the first place.

            But, hey, what did a guy like Eisenhower know about world affairs, spouting off all those "naïve" ideas about resolving differences, "not with arms, but with intellect and decent purpose."  He only led the Allied troops to victory over the forces of world fascism during W.W. II, while Ronnie Reagan was slogging in the trenches, along with that other right-wing "hero" John Wayne, on the back lots of Warner Bros. in Hollywood. 

            How can Ike's "naive" belief  in the limited efficacy of war in international relations even begin to compare with Bush's wisdom in the ways of war, based on defending the friendly skies over Texas as an ANG pilot while thousands of other young men were being killed in the jungles of Viet Nam.  How can Ike's "naïve" beliefs about war and peace stand up against the hard-nosed sagacity of Richard Cheney who, while eligible to fight in the war of his generation -a war he fully "supported,"  just didn't support it enough to actually fight in it because he had "other priorities" like making a fortune in the petroleum services biz.

            Like I've been saying all along, today's right wing GOP is both intellectually and morally bankrupt, and it's a far cry from Eisenhower's Republican Party.  Ike, like General Powell today, wouldn't have a place in today's GOP as defined by the likes of Cheney, Limbaugh and Palin and, unlike Powell, he really wouldn't want to either.  This point is amply supported, too, by the wingnut response to the last post I quoted, taking issue with Eisenhower's statements as being "naïve," and in keeping with the warm and fuzzy "Kumbayah type of world." 

            That's what I mean by the moral and intellectual bankruptcy of today's "conservative" Republican Party.   It seems that today's GOP elephant doesn't even have a long memory and is clueless as to the principles that  guided the last honest, conservative Republican president, and the last truly great man to occupy the White House as well, the one who said:

I think that people want peace so much that one of these days government had better get out of their way and let them have it.

Today's GOP is driven by the economic elite in the arms industry and petroleum industry, i.e. the "military industrial complex" that Ike warned about in his 1961 farewell address, a confluence of wealth and militarism that promotes war in order to enrich itself, in an unholy alliance with the religious right which makes up the GOP's political clout.

            The religious right is even scarier than the military industrialists, however.  A significant number of them vote Republican because they want war in the mid-East, in "Babylon," to bring about the biblical prophesy of Armageddon after which the Israelites will be killed and all those good SBC "Christians" will be raptured into Heaven.   

            It is here, if anywhere, that Ike was naively optimistic, not about external threats like Russia or Iran, but about the looming internal threat to both our precious democratic, constitutional freedom and world peace, as when he said that the people want peace, and "there is no glory in battle worth the blood it costs."  Here, the GOP today panders to the religious right, and so many of them do not want peace, but instead seek glory through battle, not by expropriating other peoples' oil reserves in this world like the industrialists, but by killing them in order to secure a place in their lily white skinned, anthropocentric "Heaven" and, to them, that's worth all the blood it takes.

            The really funny thing, though, is that I posted the very same Eisenhower quotes back in March under the title "Pearls of Wisdom."  As with this last post, I quoted them without attribution, on purpose,  and I got the same kind of response, with one wingnut who called himself Snakedog vehemently attacking me as a "liberal" based on my belief in Ike's principles. As with the present post, I called him out as arguing with Ike, not me, and he hasn't posted anything here since then. 

            Well, like the song says, "Someone's laughing, Lord," and that someone is me about the response I expected and got to the last post about casting pearls before swine.    But I'm sure Ike would be crying if he saw what's happened to American society today thanks to the Republican Party's pandering to the religious right, and he certainly wouldn't vote Republican.

            Kumbaya!

231 comments »

Truth, Justice and The American Way, Or Pearls Before Swine

                                Truth, Justice and The American Way, Or Pearls Before Swine

             My country right or wrong: when right, to be kept right; and when wrong, to be set right.

                     -Senator Carl Schurz, R., Missouri

            The never ending battle for truth, justice and the American way.

                      -Superman Comic Book, cover slogan

Here are a few observations which, as a center-liberal Constitutionalist, I believe contain great wisdom and insight as to the proper role of government, the  duties of an informed citizenry and our true path toward peace, justice, the common defense and our general welfare.

 -The purpose is clear. It is safety with solvency. The country is entitled to both.

 -The problem in defense is how far you can go without destroying from within what you are trying to defend from without.

 -Every gun that is made, every warship launched, every rocket fired, signifies in the final sense a theft from those who hunger and are not fed, those who are cold and are not clothed.

 -I think that people want peace so much that one of these days government had better get out of their way and let them have it.

-In most communities it is illegal to cry "fire" in a crowded assembly. Should it not be considered serious international misconduct to manufacture a general war scare in an effort to achieve local political aims?

-Peace and justice are two sides of the same coin.

-There is no glory in battle worth the blood it costs.

 -This world of ours... must avoid becoming a community of dreadful fear and hate, and be, instead, a proud confederation of mutual trust and respect.

-Though force can protect in emergency, only justice, fairness, consideration and cooperation can finally lead men to the dawn of eternal peace.

-Together we must learn how to compose differences, not with arms, but with intellect and decent purpose.

-We will bankrupt ourselves in the vain search for absolute security.

-When people speak to you about a preventive war, you tell them to go and fight it.

-Here in America we are descended in blood and in spirit from revolutionists and rebels - men and women who dare to dissent from accepted doctrine. As their heirs, may we never confuse honest dissent with disloyal subversion.

-The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.

 All of my topical  posts in this series touch on one or more of these basic ideas, and I believe they all contain an essential wisdom that is necessary for America to attain peace and justice, first for ourselves and then, by our example rather than force and the hollow rhetoric of those who advocate force, for the rest of the world. 

            The most significant question we face in America today is whether the 18^th Century ideals, derived from the European Enlightenment and written into the Constitution of the United States of America, can survive as we proceed into the 21st Century, or whether those ideals will continue to devolve, under the divisive right wing demagoguery that permeates our public media, into nothing more than a comic book slogan.  Do you agree, or am I just casting pearls before swine?

181 comments »

Ouingnut Ouija

Wingnut Ouija  

Facts are stubborn things; and whatever may be our wishes, our inclinations,  or the dictates of  our passion, they cannot alter the state of facts and evidence.
            - John Adams, Trial Lawyer, defending British Soldiers after "Boston Massacre"             

Facts are stupid things.
            - Ronald Reagan, B-movie actor, Freudian slip mangling Adams quote.

 Bush wanted to remove Saddam, through military action, justified by the conjunction of  terrorism and WMD. But the intelligence and facts were being fixed around the policy.
            - Matthew Rycroft, MI6 Downing Street Memo, July 23, 2002

Several years ago my former law partner and I travelled to Wassau, Wisconsin, to take depositions on a product liability case where our client had lost an arm to a defectively designed industrial machine manufactured there.  We took a local flight from Detroit to Green Bay, a nice enough small city -like Worcester with an NFL franchise, and we rented a car for the drive through the boonies to Wassau.  

          We took depositions from everyone involved in the design and manufacture of the machine, including the president of the company who can best be described as a master of dumb looks and evasive answers -or more accurately non-answers.  And, being pathetically unimaginative as well, his evasions began to follow a predictable pattern. 

         When a difficult question was asked, i.e. one where he couldn't think up a suitable way to wander off topic and would have to acknowledge fault and inadequate design of the machine if he answered, this bold captain of industry would begin with a blank-stare pause, anywhere from fifteen seconds to several minutes, after which he would say things like, "I'll have to check with my people," or "I have to review the paperwork," or our very favorite "I gotta go lose some water," after which he would get up and go to the men's room for several minutes, apparently thinking we might ask a different question when he returned.

         Of course, we didn't ask a new question. Being the patient and determined fellows that we are, my partner and I didn't get angry or nasty with the witness or with counsel, either.  We just kept asking the same question until we got a responsive, substantive answer,  and we made it obvious that we were going to stay there and keep asking questions as long as it took for this cretin to give us a straight answer to each question.  This one deposition continued over two full days.

            To while away the time however, after a half-day of that obstructionist nonsense, I devised a little chart on a yellow legal pad listing every one of his evasive responses that we'd heard.  I then began using the chart like a Ouija board.  My partner would ask a question and while the deponent was giving us the blank stare, I would move my finger over the chart a few times and stop it on one of the evasions to see if I could predict which one he would use. 

            We had files stacked on the table, so nobody else could see my finger moving over the little yellow Ouija board.  Both defense counsel and the witness were therefore clueless as to why we snickered every time I guessed right, and our apparent jollity clearly conveyed to them that we weren't about to give up until we got everything we needed from the witness -which we eventually did. 

            Doing this blog post over the past several months, I am struck by the similarity between the predictable evasions of that dim bulb CEO in Wassau, and the equally predictable, unimaginative off-topic "talking points" we get from the purportedly "conservative" folks who reply to these postings, typically consisting of right-wing shibboleths like "tenth amendment," or "Barney Frank," or "Acorn,"  et cetera,  always only marginally pertinent to the subject under discussion if at all, and never uttered within the context of any cogent, critical analysis of the substantive topic at hand.

            I might, for example, be discussing the failure of "free market" idelology, culminating with the failure of the Bush administration's policy of deregulation in 2008.  I might use the example of Kenny Boy Lay's close personal ties with Bush to show how corporate influence corrupts our politics and damages our economy.  I will then, inevitably, hear from someone braying about Acorn, as if corrupt activity by people working for a non-profit corporation involving a few million dollars, a non-profit that has contributed to Democratic political campaigns including a President's, was even marginally comparable to for-profit corporate corruption involving billions, like Enron's, that bankrupts an entire state due to the criminal acts of a President's close friend. 

            It's a question of both perspective and relevance, two things that are totally alien to today's right-wing GOP base, and the media demagogues they fawn on and then parrot on this site.  These are people who speak and act solely on ideological preconceptions across the board, as opposed to critical analysis of specific factual situations, to determine public policy. 

           A clear example of this approach was the Bush administration's manipulation and its cynical misrepresentation of the intelligence about Saddam Hussein's alleged WMDs, outright lying or at best saying things were so that they did not in fact know to be so, in order to justify invading Iraq.  As stated by Matthew Rycroft in the MI6 "Downing Street" memo of July 2002, the Bush administration was "fixing the intelligence around the policy" instead of determining policy based on accurate and reliable intelligence, and that has cost 4,000 young American lives to date, plus a nearly trillion dollars increase in our national debt.  

           Another example is Reagan's Freudian slip, flubbing his lines while trying to quote John Adams and saying that "facts are stupid things."  That's what he really believed, though, not what Adams said about facts, because the facts and logical analysis always contradict the extremist, right-wing ideology which informs the basis of today's post-Reagan Republican agenda, consisting of a marriage between capitalist and conservative religious ideologies.  How else could an administration seriously try to classify ketchup as a vegetable in order to stiff America's children out of a nutritional school lunch just to shave a few dollars off federal support for local public schools?

          I have therefore designed a "Ouingnut Ouija" board, listing some of the most often heard "talking points" that self-described conservative  savants borrow from the likes of Limbaugh, Hannity, Coulter, Beck, Sowell, Thomas, Krauthammer, et al.  Before reading the replies from the usual wingnut suspects to any future post on this site, I'll just set the Ouignut Ouija board on my desk and let my finger land where it will to see if I can predict which of the inevitable right wing obfuscations and irrelevancies the respondent will recite.

           Anyone else is free to use this Ouingnut board for his or her own amusement, even the wingnuts themselves.  If they can't think of a response based on what Rush said last night, they can just get one from the Ouingnut board and nobody will know the difference.  As for the rest of us, it won't reduce or otherwise mitigate the right-wing tripe that gets regurgitated in response to these "liberal" postings, but it might go a long way to alleviate the tedium of reading such evasive nonsense, the hackneyed rant radio "talking points" they mistake for critical analysis, the way it did for my partner and me in Wassau with the Cheesehead CEO.

           The only difference is that we two tort lawyers settled that product-liability case not long afterward for a very large sum of money, as we knew we would, but it's unlikely that the right wing media hacks and their ditto head wannabes who post on sites like this will ever just own up to their moral and intellectual bankruptcy and then stop bleating about things like  "tort reform," "free markets" and "family values." 

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A Columbus Day Reflection on Christianity and Corporatism in America

                         A Columbus Day Reflection on Christianity and Corporatism in America

               Jesus looked at him and loved him. "One thing you lack," he said. "Go, sell everything you have and give to the poor, and you will have treasure in heaven. Then come, follow me."  At this the man's face fell. He went away sad, because he had great wealth. Jesus looked around and said to his disciples, "How hard it is for the rich to enter the kingdom of God!" . . . - Mark 10:21-23

               There were no needy persons among them. For from time to time those who owned lands or houses sold them, brought the money from the sales and put it at the apostles' feet, and it was distributed to anyone as he had need.  - Acts 4:34-35

                Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you. . . . . -Jesus, Sermon on the Mount, Matt. 5:43-44

                                         Blessed are the peacemakers for they shall be called children of God.

                                                                       - Jesus, Beatitudes, Matt. 5:9

                   We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

                                             - Preamble to the Constitution of the United States of America

                  For decades, ever since the so-called "Reagan Revolution" circa 1980, we've heard the hard core right wing bleating constantly about how America is a "Christian nation," which to them means we have to punish gay people for being who they are, teach Creationist nonsense in the public schools as if it were science, force public school students to pray -or at best sit silently through prayer led by a public employee who, during that school time, should be teaching things like math, reading and science. 

              Above all, we must never spend any tax moneys to help the poor and the infirm, but instead must devote vast sums of money to the defense industry to protect the American way of life by developing insanely destructive weapons capable of annihilating the human race and, most recently after the fall of the Soviet empire and "Godless Communism,"  making war against the "evil" Islamic world.  Real Christian American patriots must always have an enemy, an evil bogeyman, in order to prove to themselves, to the world and to God how pious they are.

             The scariest among them are those who believe that Bush's oil wars in the Middle East, in "Babylon,"  are  necessary precursors to the Second Coming of the Messiah.  Some of them have cast Saddam Hussein literally as the anti-Christ, and they eagerly await a full scale conflagration, i.e. Armageddon as predicted in the Book of Revelation.  At that time they, and only they, will be "raptured" up to Heaven, as predicted in the Bible.

             Others on the wingnut religious right define their patriotic American Christianity in terms of reviving the Crusades which, like today's invasions of countries possessing large oil reserves, were more about seizing other peoples' wealth than anything Jesus ever taught, despite all the pious rhetoric about democracy and Christian values.

             In recent times, Columbus has been vilified by some on the left for opening up the Americas for colonial exploitation under the aegis of the Spanish crown.  And he was indeed seeking to find a western route to India for the purpose of opening new avenues for trade in silks, spices and gold.   As every schoolboy knows, that's why Native Americans are still referred to as "Indians" by many whites, and the white man's treatment of the Native American peoples, beginning in Columbus' time, has been driven by anything but Christian values and principles -certainly not those uttered by Jesus in his Sermon on the Mount.

            Columbus was a devout Catholic, however, and his avowed, larger purpose was not simply economic betterment for his patrons, but to also outflank the Islamic peoples that stood between Europe and East Asia, i.e. the followers of  "Mohamet," in order to spread Christianity in the far East.  Today's melding of professed Christian beliefs with rank economic ambition and exploitation of weaker peoples is therefore nothing new.  Nor is the demonization of Islam, the world's other great monotheistic religion that competes both theologically and geo-politically with the Judeo-Christian tradition.   

            In ages past, however, that melding of the state with the church was both direct and explicit in Catholic nations where royal authority was said to be based on a "divine right."  Catholic monarchs like Ferdinand and Isabella, believed themselves to be answerable to God, whose word was made known to them by the Pope in Rome. The Papal imprimatur was the cornerstone for political legitimacy of European monarchs for over a thousand years until the Reformation, and even then it remained so in strictly Catholic nations like Spain.

            It is therefore understandable how, as a man of his time, Columbus might honestly have believed he was doing God's work, first by seeking a western route to India, and then by subjugating the more primitive natives he found in America.  But, today, we are more than two-hundred years into the great social and political experiment we call the United States of America, and given both our revolutionary history and the democratic ideals  embodied in our determinedly secular Constitution, we should know better.

            After the Reformation, the close connection between Christianity and the exercise of colonial power continued in other European nations with Protestant majorities, like Holland and England.  In Holland, there was the Dutch Reformed Church which followed and provided the moral basis for the Dutch mercantile ambitions and exploitation of New World peoples, purchasing the Island of Manhattan for a chest full of shiny baubles, for example, from natives who had no concept of private property.

            In England, Henry VIII replaced the Catholic hierarchy with the hierarchical Church of England, and most of the British colonists who subsequently settled on America's Atlantic seaboard came here for religious reasons, to find freedom to preach and practice Christian doctrines that differed from the Church of England.  The Puritans, forbears of today's Congregationalists, settled in Massachusetts and northern New England. 

            The Baptists, led by Roger Williams, left Massachusetts to escape the rigid theocracy of the Puritan regime and established the area still officially known as Rhode Island and the Providence Plantations.  The Quakers found religious freedom in Pennsylvania, and English Catholics did the same in Maryland. In some colonies, like coastal Virginia, the Church of England followed the colonists as the official church among the landed gentry like Washington.

            Then, in the late Eighteenth Century, a rabble of revolutionaries in the British American colonies, banded together to overthrow the legitimate royal government.  The catalyst was taxation, not the collection of taxes per se, but the fact that the colonists were being taxed without having any representation in Parliament where such issues could be debated. 

              The Boston Tea Party was an act of domestic terrorism, with the armed invasion of ships moored in Boston Harbor and the destruction of valuable cargoes. It was meant to make a political statement, not that taxes were too high, or were being used erroneously, but simply to protest that the colonists were being taxed without having any say in the matter.  They were basically protesting Parliament's highhanded arrogance, an arrogance akin to the GOP's exclusion of Democrats from meaningful Congressional debate under DeLay's leadership during Bush's first six years in office when the Republicans controlled both houses of Congress.

              The American revolutionaries were in many cases nominal Christians, although many of the more prominent ones like Franklin, Jefferson and Washington were Deists who accepted Christ's moral teaching but questioned his divinity,  precursors of today's Unitarian-Universalists.  They were also intellectuals attuned to the most current, and strange, "European ideas" about mankind and society which we refer to as the Enlightenment.  The Americans like Jefferson tended to be "warm Deists" who believed in a benign Creator, while European thinkers were cold Deists who believed in an indifferent Creator, but neither school can be thought of as being doctrinally Christian.

              Because of their belief in Enlightenment principles, such as the individual's right to life, liberty and freedom to choose the path to happiness, the founding fathers who framed the Constitution saw fit to devise a system of checks and balances among three branches of government.  A decade later, under Jefferson's leadership, they added the first ten amendments to the Constitution known as the Bill of Rights.  In the very first sentence of the First Amendment, they provided for both complete religious freedom and the separation of government and religion.  Thus, far from creating a "Christian" nation as the religious right claims today, the framers determinedly established a secular democratic republic based on the primacy of the individual.

            In America today, we don't have a Ferdinand and Isabella seeking to subjugate and exploit other peoples to enrich their coffers, perhaps in a sincere belief that was the way to spread the word of Jesus across the wide world.  Instead, we have corporations, insurance giants like AIG, oil oligopolies like Exxon-Mobil and the vast amorphous financial engine referred to as Wall Street who seek political dominance in America in order to advance their economic interests both in the United States and in worldwide markets through "globalization."   

            We have also witnessed an unprecedented ascendancy of the corporate elite over the past eight years of GOP control of government, an ascendancy that ended in 2008 due in large part to the ideological excesses of the corporate American right opposed to governmental regulation and taxation per se on principle.  But it wasn't that ideology that enabled the GOP to do this, it was the cynical appeal to the religious right on those so-called "values" issues like school prayer, creationism, abortion, gay rights, et cetera, that gave the Republicans the votes needed to win elections at the national level, thus creating an unholy alliance between the corporate elite and Christian fundamentalists, largely from the Southern Baptist Convention, who believe in biblical inerrancy.

           The Southern Baptists separated from the church founded by Roger Williams over the issue of slavery, and they justified slavery based on selective readings from both the Old Testament and the New Testament which referred to it as it was practiced in biblical times.  This schism continued during and after Reconstruction, as the Southern Baptists continued to justify racial segregation through Jim Crow laws. 

            The Southern Baptists have been joined in recent times by other Bible-based Christian sects in the South and Mid-West to create the political phenomenon known as the Bible Belt which today votes heavily Republican because the GOP cynically panders to them on the socially conservative and economically meaningless "values" issues, in order to maintain the corporate elite's political ascendancy as, basically, an oligarchy.

            This was the basis of Nixon's 1968 "Southern Strategy," and it was perfected in 1980 by Ronald Reagan who opened his presidential campaign in Philadelphia, Mississippi, where a white mob got away with murdering three civil rights workers who were helping poor blacks register to vote.  There, Reagan expressly avowed his belief in "states rights," which everyone but the scarecrow in the cornfield understood to mean Jim Crow segregation, but he also blended this in with issues important to the American corporate elite such as taxation, welfare and "federal regulation."

           That odd-couple marriage of the corporate elite and the religious right, based on pandering to the most intolerant and ignorant religious and social impulses,  remains the basis of the GOP's popular support, which over the past eight years allowed corporate interests to control both the economy, through regulatory and tax policy, and foreign policy focused chiefly on controlling and exploiting global markets and economic resources worldwide.  The Bush administration's invasion of Iraq, focused on seizing Saddam's oil reserves while Bush himself espoused his messianic "Christian" beliefs, is a clear example of this, and it's enabled by the religious right's highly selective reading of Scripture.

              During slavery and Jim Crow, the Southern churches selected isolated biblical passages which mentioned slavery to support the South's economic dependence on slavery.  Today, they read passages from Matthew and the Book of Revelation to support a Christian "holy war" in the mid-East that serves American corporate interests in an attempt to seize petroleum resources there.  In their "values" driven support of the GOP's corporate base, and its agenda of greed and unrestrained capitalism, the  American religious right simply ignores Jesus' message, as reported by Mark, that a camel may more easily pass through a needle's eye than a rich man, i.e. a person who values money above all else, may pass into Heaven.

             Thus, today, we are saddled with armed conflicts on two fronts, costing thousands of human lives, devouring our tax dollars and increasing our massive trillion dollar debt, all benefiting only the defense contractors and petroleum industry, while the national economy itself is teetering due to the GOP's deregulation of the financial markets and reckless tax cuts for the rich.  Personal bankruptcies and mortgage foreclosures have reached record highs, individual savings and retirement accounts have been wiped out and unemployment is verging on ten percent. 

              Of course, to the diehard GOP ideological media hacks, it's all Obama's fault, or it's all Barney Frank's fault or Nancy Pelosi's fault because, like the Bible, free market capitalist ideology is infallible.  Pay no attention to the man behind the crash of 2008, and its real causes, because like Reagan once said in a Freudian slip,  "facts are stupid things," meaning that they usually contradict the fundamentals of his conservative ideology.

             So, Columbus gets a pass from me, despite his mangling of Jesus' true message to the world, because he was honestly acting as a Christian and a European of his time, serving a monarchy which he sincerely believed was established by divine ordination and was acting as the agent of God here on Earth.  He didn't know any better, and he had no reason to based on the cultural and political norms of his time.  But today's corporatist Republicans have no such excuse for invading other peoples and trying to steal their resources, like the Iraqi oil reserves, while pandering to the religious right on conservative social values to maintain control of the national government.

            Today's Republican faithful thus  not only mangle Jesus' message as did Columbus, but they do so by violating and eroding our secular Constitutional principles, principles based on those strange  European ideas of the Enlightenment, ideas for which our founding fathers risked their lives and fortunes to pass along to us as their social and political posterity.

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