Monthly Archives: February 2008

Nader gives it another go

Ralph Nader announced today that he’s running for president yet again. As in 2000 and 2004, his theme is that there isn’t a lick of substantive difference between Republicans and Democrats:

Nader, 73, said most people are disenchanted with the Democratic and Republican parties due to a prolonged Iraq war and a shaky economy. The consumer advocate also blamed tax and other corporate-friendly policies under the Bush administration that he said have left many lower- and middle-class people in debt.

“You take that framework of people feeling locked out, shut out, marginalized and disrespected,” he said. “You go from Iraq, to Palestine to Israel, from Enron to Wall Street, from Katrina to the bumbling of the Bush administration, to the complicity of the Democrats in not stopping him on the war, stopping him on the tax cuts.”

Who does a Nader candidacy help? According to one prominent Republican who speaks with Jesus regarding politics on a daily basis:

Republican presidential candidate Mike Huckabee, speaking shortly before Nader’s announcement, said Nader’s past runs have shown that he usually pulls votes from the Democrat. “So naturally, Republicans would welcome his entry into the race,” the former Arkansas governor said on CNN.

In what may be safest prediction of future events in the history of politics, I hereby predict that Nader will be the most frequent guest on Fox News Sunday between now and November.

As for the “no difference” piffle, one need look no further for a refutation than comparing the voting records of this person and this person — both appointed by arguably the poorest excuse for a Democrat ever to reside in the White House — with the records of this guy and this guy — both appointed by Teh Dee-cider. Supreme Court appointments are for life, and thus have effects that extend far beyond the temporal existence of the administrations that make them. For instance, President Reagan is currently cornholing us from beyond the grave in the person of this guy.

Advertisements

The Constitution’s big, hairy nutsack

The argument — and my generosity in using that word is nothing short of breathtaking — that a woman can’t lawfully serve as President of the United States has been floating around teh intartoobz for years, at least since a Hillary Rodham Clinton presidential campaign became a serious possibility. The argument is back in the forefront recently thanks in large part to an editorial in the Concord (New Hampshire) Monitor authored by some quasi-sentient fool by the name of Dick Marple. For reasons I can’t begin to understand, the editorial is all over the dubya dubya dubya.

The argument rests on Article II of the U.S. Constitution.  Section 1 leads off with:

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years . . . .

Further on in Section 1  we find:

The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

Before he enter on the execution of his office, he shall take the following oath or affirmation . . . .

Section 2, which spells out the president’s authority, says in part:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States . . .

And in Section 3:

He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

“Just look at that language,” the argument goes. “There’s cockmeat all over it!” All those hes, hims and his, coupled with the absence of any references to wimmins, necessarily means that wimmins are excluded from the presidency.

Let’s euthanize this arthritic, toothless, dyspeptic, three-legged, 25-year-old cat before it suffers any further, shall we?

We could easily point out the ten or so times the original version of Article II and the Twelfth Amendment refer to the president with the gender neutral term “person,” but that probably wouldn’t satisfy the argument’s proponents all by itself. Let’s begin by noting that Article II, Section 1 expressly lays out all factors that disqualify one from serving as president:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

That’s it, folks. That’s the be-all and end-all of the disqualifiers, and neither absence of a massive tree trunk of a Johnson nor presence of a cooter is among them. In the timeless words of Pliny the Elder, “Expressio unius exclusio alterius est, bitch.”

Okay, but what about all those male-only references? Well, that’s just it; they aren’t male-only references.

American lexicographer and all-around sanctimonious prig Noah Webster is something of a hero among the contemporary “strict constructionist”/”original intent”/”America was founded as a Christian Nation” crowd. According to those folks, Webster’s 1828 American Dictionary of the English Language is the definitive source for finding out what words meant at the time of America’s inception. Webster notes in his dictionary that:

He, when a substitute for man in its general sense, expressing mankind, is of common gender, representing, like its antecedent, the whole human race.

That, coupled with the many constitutional references to the president as person — which per Websteris applied alike to a man, woman or child” — demonstrates that eligibility for the office of president in no way depends upon what you are or are not packin’ in your underwear. 

Are there plenty of good reasons not to want a Hillary Clinton presidency? You betcha. Does the fact that she has a hoo-ha instead of a weiner legally disqualify her from holding the office? No.

A crooked Republican? The hell you say!

Congressman Rick Renzi (R-AZ) has been using his office to do some serious nest-feathering, or so says the U.S. Justice Department. A federal grand jury has returned a 35-count indictment (pdf, 26 pages) against Renzi and two of his compadres alleging: (1) Renzi embezzled $400,000 in customers’ premiums from an insurance agency he owned and diverted the cash to his congressional campaigns; (2) Renzi, taking advantage of his seat on the House Natural Resources Committee, strong-armed a copper mining company into purchasing land from one of Renzi’s buddies in exchange for Renzi’s support legislation that would transfer certain lucrative property rights to the mining company; and (3) a host of other untoward shenanigans.

Renzi’s lawyers are beside themselves with righteous indignation, wondering aloud how the Justice Department could be so callous as deny their client — whose father’s funeral took place yesterday — “a decent amount of time . . . to mourn the passing of his father[.]” Counsel also insists that their client is innocent and that the prosecution is politically motivated.

This has been in the works for some time. Federal agents raided the above-referenced insurance agency (ownership of which Renzi transferred to his wife in 2004) almost a year ago. Back then Renzi resigned his committee appointments and announced that he wouldn’t run for reelection when his current term ends in early 2009.

That’s no longer good enough for the GOP leadership,  who can’t seem to push Renzi under the proverbial bus far enough or fast enough. House Minority Leader John Boehner (R-OH) is pretty much ordering Renzi to leave right the fuck now:

“The charges contained in this indictment are completely unacceptable for a Member of Congress, and I strongly urge Rep. Renzi to seriously consider whether he can continue to effectively represent his constituents under these circumstances,” a statement from Boehner’s office, released Friday afternoon, said. “I expect to meet with Rep. Renzi at the earliest possible opportunity to discuss this situation and the best option for his constituents, our Conference, and the American people.”

A sordid story, to be sure, but at least it doesn’t involve rape, bestiality, pedophilia or diaper fetishism (so far as the indictment reveals). Old fashioned, down home, country style thievery is something of a step up for the contemporary edition of the Family Values Party.

Tort “reform” group vies for Darwin Award

Texans for Lawsuit Reform is one of many outfits that bills itself as a group of concerned citizens dedicated bringing sanity back to an out-of-control civil justice system. In truth, as with all such organizations, TLR is an assemblage of well-heeled fat cats devoted to buggering the average citizen for their own personal gain.

But TLR is also a nonprofit corporation, which means paperwork. That includes filing periodic reports with the Texas Secretary of State. Such reports are no great shakes. It’s usually a several-page boilerplate form in which the corporation has to update/verify certain information such as its business address, name and address of its registered agent for service of process, etc. Nothing to it, really.

TLR dropped the ball, though. They missed a periodic report deadline. The Secretary of State provided the written notice required by Texas law and advised TLR that it had it had 120 days to correct the delinquency. Still nothing. At that point, the Secretary of State did the only thing the law allows, namely dissolve the corporation (pdf, 1 page).

Buffoonish incompetence among Texas captains of industry is nothing new, of course, but it never ceases to amuse.

H/T – The Pop Tort

The McCain-boinks-telco-lobbyist kerfuffle

Codesmithy over at Esoteric Dissertations from a One-Track Mind says everything I wanted to say about the burgeoning John “Walnuts” McCain/Vicki Iseman story, and says it much better than I ever could. The fact that McCain enjoys extramarital trysts isn’t exactly new, and as a general rule I couldn’t care less what McCain or any other politician does with his Johnson.

“Values voters” — whatever the hell that means — may well be put off if subsequent investigation reveals that McCain did in fact lay the sausage to Ms. Iselman. I’m more interested in what the relationship, sexual or otherwise, reveals about John McCain the alleged maverick.

McCain is to maverick status what Ralphie May is to classical ballet, i.e., not a goddamn thing.  Codesmithy reminded me that McCain is the last man standing amongst the Keating Five. You remember Charles Keating, Jr., don’t you? He was the Ohio-born anti-porn crusader who moved west to seek his fortune via robbing thousands upon thousands of investors of billions and billions of dollars through the vehicle of Lincoln Savings & Loan. McCain was one of the five U.S. Senators who pressured federal regulators to stay off Keating’s back in exchange for Keating’s gifts of ill-gotten mammon.

Regardless of whether McCain and Iselman have been engaging in a bit of the old in-out, in-out, the fact remains that the lobbyist regularly appears with McCain at fundraisers, shows up at his offices on a regular basis, and takes McCain flying on her clients’ company planes. Is that the behavior of a “maverick”?

Of even greater concern is McCain’s apparent cluelessness regarding how all this looks. McCain himself had no problem with being publicly joined at the hip with a representative of an industry that’s a darling of the Bush administration. His aides had to point it out.  It brings to mind Henry Ford, the “brilliant entrepreneur” who had to be told that paying his workers a decent wage would create a whole new class of consumers for his product.

“Maverick” my lily-white ass. McCain is the consummate beltway boy.

CPSC’s tenuous existence still tenuous

The Consumerist reports here on the U.S. Senate’s efforts to reach a compromise that would, for the time being, keep the severely neutered federal Consumer Product Safety Commission alive and functioning to a limited extent. SCD’s prior coverage is available here and here.

To recap briefly, CSPC is supposed to be headed by five commissioners, with a minimum of three required for a quorum. The agency currently has but two commissioners and no chair. CPSC can act at all only by special dispensation of Congress, which has twice passed temporary measures reducing the quorum number to two.

The only commissioner nominee Bush has sent to the Senate for confirmation was an unabashed industry whore who had no chance whatsoever of being confirmed. Nancy Nord, the commissioner who serves as acting chair, is a free market nutburger who thinks that manufacturer self-policing is the only way to go when it comes to consumer product safety. She also publicly denounced Congressional proposals to increase the agency’s budget and staffing.

But Congress is plowing ahead undeterred. The House of Representative’ proposal for beefing up CPSC is expansive. The Senate’s version is considerably more sedate, but still has some nice features. Per The Consumerist, the Senate version provides:

  • The CPSC would create a consumer complaint database that lists death, injury and illness reports, a provision absent from the House bill.
  • State attorneys general would be allowed to seek injunctions for violations of federal law, but would not receive broad enforcement powers.
  • Whistleblower protection would be extended to private-sector employees, and whistleblowers would be allowed to sue for damages up to $250,000.
  • Maximum fines would rise from $1.8 million to $20 million—far less than the $100 million approved by the House.

There’ll be much more to come soon. There’s a very real possibility that CPSC will not only survive the Bush administration’s murder attempt but come out stronger and more effective than ever. For now, though, the agency’s very existence remains tenuous.

SCOTUS forcibly rogers the injured yet again

Here this blog previewed Riegel v. Medtronic, Inc., a case in which the U.S. Supreme Court was called upon to address the preemptive effect of the 1976 Medical Devices Amendments (“MDA”) to the federal Food, Drug, and Cosmetic Act. The question was whether a person injured by an allegedly defective medical device can recover damages from the manufacturer under state tort law where the device went through and passed MDA’s premarket approval process.

I predicted a win for preemption advocates, and the Court toed the line nicely. In an 8-1 decision, the Court held yesterday that MDA’s preemption clause — codified at 21 U.S.C. § 360k — bars state common law tort claims challenging the safety or effectiveness of a medical device that received premarket approval from the federal Food and Drug Administration. Riegel v. Medtronic, Inc. (pdf, 37 pages).

MDA’s preemption clause disallows states from establishing a “requirement” that is “different from” or “in addition to” a “requirement applicable under [MDA] to the device,” or “which relates to safety or effectiveness of the device . . . included in a requirement applicable to the device under [MDA].” The FDA’s premarket approval process imposed “requirements” on the Medtronic catheter at issue in this case since FDA regulations prohibit marketing a medical device in a way that deviates significantly from the specifications set forth in the manufacturer’s premarket approval application. The FDA’s approval, the Court said, is based on the agency’s determination that specifications provide reasonable assurances of safety. State common law negligence and strict liability in tort causes of action would impose “requirement[s]” as to the safety of the catheter over and above those imposed by federal law, a result that MDA’s preemption clause doesn’t allow.

The majority opinion, penned by Justice Scalia, oozes disingenuousness from every pore. My personal favorite example appears on Pages 11-12 of the opinion where Scalia contrasts the supposedly painstaking balance of a particular design’s risks and benefits conducted by administrative agencies with the supposedly breezy, devil-may-care approach of a jury, which Scalia tells us “sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court.”

Scalia knows full well that the risk-utility test for strict liability based on an allegedly defective design requires the trier of fact to balance the risks and benefits of that design. He also knows that all relevant bearing on risks and benefits comes in at trial. Since Scalia’s statement can’t be explained away by garden variety shit-all ignorance, I submit that something more sinister is afoot.

As is all too often the case, Justice Ginsburg is the lone voice of reason in these cases. She noted that there was no such thing as premarket approval of medical devices before the Dalkon Shield disaster. In the wake of that mess, states began imposing premarket approval requirements on medical device manufacturers. MDA was a response to those state efforts. Congress didn’t want companies subjected to fifty different sets of requirements, so it created a uniform nationwide premarket approval system. MDA’s preemption clause was aimed at premarket approval systems developed by state legislatures and state administrative agencies, nothing more.

The one glimmer of hope the majority allows comes in its statement that “§360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case ‘parallel,’ rather than add to, federal requirements.” Thus, a person injured by a defective medical device could conceivably recover tort damages if the device violated FDA regs or failed to comport with the FDA-approved premarket approval plan.

The issue there is whether the state in which the cause of action arose would recognize such a claim. In my experience, courts tend to frown on what they derisively call “private causes of action” for violation of administrative regulations, at least where a statute vests enforcement authority in the agency itself.

“What’s the big deal,” you might ask. “Nothing’s entirely safe. The best we can legitimately expect is reasonable safety. Doesn’t the FDA’s premarket approval process provide that?”

Tell that to the users of Pfizer’s drug Chantix who wanted to quit smoking and got an extra added bonus in the form of psychotic breaks. You could also tell it to the 22,000  people who died unnecessarily because of delays in recalling Bayer’s drug Trasylol, but it wouldn’t do much good seeing as how they’re dead and all.

The simple truth of the matter is that the FDA approval process for drugs and medical devices is heavily dependent on manufacturers volunteering accurate information. If manufacturers hide data and/or outright lie about the results of their clinical trials — as they do with appalling regularity — FDA approval isn’t worth the paper it’s printed on.

Riegel may be just the beginning, sad to say. There are two defective drug cases still before the Court in which manufacturers are claiming FDA preemption of state tort law.

More: Eric Turkewitz of the New York Personal Injury Law blog brought a smile to my ugly, beaten-down old face with an entry titled Lawyers Celebrate Losing Business (a/k/a Riegel Decision Heralds Era of Bigger Government.

Couple challenges Colorado gay marriage ban

Back in 2006, Colorado voters (56% of ’em) approved Amendment 43 — now appearing as Article II, Section 31 of the Colorado Constitution — which provides that “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”* The statutes governing marriage likewise say that only one man, one woman unions can be valid marriages. C.R.S. § 14-2-104(1)(b).

The test case arose on September 24, 2007 when Kate Burns and Sheila Schroeder, a lesbian couple from Englewood, arrived at the Denver Clerk and Recorder’s Office to apply for a marriage license. They weren’t allowed to apply, of course, and were arrested for criminal trespass when they refused to leave.

On Monday the couple’s attorney filed a motion in the trespassing case asserting that the gay marriage ban violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution as well as the Establishment Clause of the First Amendment. The Denver District Court has set the motion for hearing on February 28 and a two-day jury trial for April 14-15.

Meanwhile, the Boulder  Daily Camera reports that Burns and Schroeder have filed a separate lawsuit in Denver District Court seeking a declaration that Amendment 43 violates the federal constitution. That’s entirely possible, of course, but it’s at least equally possible that the Daily Camera confused the motion filed in the trespass case with a separate civil complaint.

*Unlike anti-gay constitutional amendments in many other states, Colorado’s doesn’t prohibit “civil unions” or other marriage-like arrangements for gay couples. One of the unintended consequences of such broadly-worded amendments is discussed here.

Dildos 1, Texas 0

Texas has a statute that criminalizes advertising, selling, giving, lending or otherwise distributing an “obscene device,” which the law defines as any device “designed or marketed as useful primarily for the stimulation of human genital organs.”

Interestingly enough, there’s a statutory affirmative defense that authorizes promoting obscene devices for “a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.” Presumably, then, a vendor is in the clear if he markets fuck dolls for exclusive use in judges’ chambers, legislators’ offices and/or police department break rooms, assuming of course that dumping a load from time to time during the work day qualifies as “a bona fide . . . judicial, legislative, or law enforcement purpose.”

The statute doesn’t reach possession or use of “obscene devices.” You can own or use a twenty-inch double donger, but you can’t buy one from a vendor (since vendors can’t sell them) or borrow one from a friend. The maximum period of incarceration for violating the statute is two years.

A couple of retail sex toy sellers filed suit in federal district seeking a declaration that the Texas statute violated the substantive component of the Fourteenth Amendment’s Due Process Clause as well as the retails’ free speech rights under the First Amendment. Yesterday, the U.S. Court of Appeals for the Fifth Circuit sided with the retailers on the due process claim by a 2-1 vote. Reliable Consultants, Inc. v. Earle (pdf, 22 pages).

The plaintiffs’ due process challenge wasn’t based on any alleged Fourteenth Amendment right to advertise and distribute dildos. Instead, the retailers advanced the individual right of potential customers “to engage in private intimate conduct in the home without government intrusion.”

The state claimed that the retailers lacked standing to assert the rights of third parties. Rejecting that claim was a veritable no-brainer for the Fifth Circuit, which simply noted that in Griswold v. Connecticut, 381 U.S. 479 (1965) — the case that shot down a statutory ban on contraceptive use — the Supreme Court allowed pharmacists to assert the rights of their customers.

Applying Lawrence v. Texas, 539 U.S. 558 (2003), in which SCOTUS held unconstitutional a Texas statute criminalizing “sodomy” between consenting adults, the Fifth Circuit found that the dildo statute violated due process. Per Lawrence, the right at issue isn’t a right to jack off with sex toys but rather the broad “right to be free from governmental intrusion regarding ‘the most private human contact, sexual behavior.'” The statute “impermissibl[y]” and “heavily” burdened that by rendering people “unable to legally purchase” sex toys in Texas. Hell, you can’t even lawfully lend them or give them away. The state advanced the usual array of “morality”-based justifications for the law, all of which the court rejected in convincing fashion.

The majority also reinstated the retailers’ First Amendment commercial speech protection claim, but did not address the claim on the merits. The majority surmised that the commercial speech claim would likely be superfluous in view of its Fourteenth Amendment holding.

Earle is at odds with Williams v. Morgan, 478 F.3d 1316 (11th Cir.), cert. denied, 128 S. Ct. 77 (2007), in which the U.S. Court of Appeals for the Eleventh Circuit upheld a substantially similar Alabama statute against a Lawrence-based due process attack.

Fool to Governor: Climate change is “junk science”

Colorado Governor Bill Ritter has proposed a climate action plan to the state legislature calling for, inter alia, more stringent motor vehicle emission standards, more extensive use of renewable energy and increased recycling.

Sounds uncontroversial enough, and by all rights it should be. The trouble, you see, is that adoption of the governor’s plan might cut into the power industry’s profit margins. That can’t happen. It simply isn’t fair to deprive power company CEOs of their God-given right to a third vacation home, a tumescent number-only bank account in the Cayman Islands and yacht for each coast.

Enter State Rep. Kevin Lundberg (R-Berthoud). The Denver Post reports on Rep. Lundberg’s heroic effort to introduce balance to the debate here. Lundberg advises:

“We can’t lose sight of the fact that it’s predicated on junk science,” Rep. Kevin Lundberg, R-Berthoud, said.

Lundberg said it has not been settled scientifically that manmade carbon-dioxide emissions contribute to global warming.

The executive director of the state Department of Public Health and Environment says that “[y]ou could have a convention of all the scientists who dispute climate change in a relatively small phone booth,” but we should just stuff that nonsense in the pay-no-mind drawer and forget about it. Who are you going to believe, some clown who’s devoted his entire life to health and environmental issues or a politician with credentials like these:

I have owned and operated Lundberg Productions, a media and video production service, for the past 25 years. My BA degree is from Rockmont College in history and social science and I am a third generation Coloradan. I served on the Board of Trustees for Colorado Christian University from 1986-2002, helped found Christian Home Educators of Colorado in 1990, and am active with Galilee Church in Loveland.

The magnitude of Rep. Lundberg’s breathtakingly stupid remark is likely explained in part by his audience: “Lundberg’s comment came at a presentation to a handful of Republican lawmakers sponsored by the Independence Institute, a conservative Golden-based think tank.”

The Independence Institute bills itself as Colorado’s Free Market Think Tank. A rival group composed of hebephrenic geometry aficionados, which bills itself as Colorado’s Octagonal Hexagon Tank, will soon be up and running.