The Man in the Empty Blue Suit
by Robert Sherrill
The Nation magazine, January 24, 2000
"He can't speak, he can't govern, he doesn't have any
ideas, he's done almost nothing-what can he do except disappoint
people? Just wait till you get to know him.... If you think his
daddy had trouble with 'the vision thing, wait'll you meet this
one. He doesn't seem to read about or care about how government
actually works."
That's Molly Ivins's appraisal of George W. Bush. The point
is, Bush isn't supposed to govern. The powers that put him where
he is, the entrenched business interests, are supposed to govern.
And they do Bush is merely the front man, the agent, for the mighty
industrial tycoons of Houston and the insurance and banking tycoons
of Dallas-Fort Worth and the oil and gas tycoons of every corner
of the state. During the five years he has been Texas governor,
he has given total allegiance to the whims and demands of the
moneyed interests that put him in office and shaped all parts
of state government.
Bush has been the champion and main facilitator of the so-called
tort reform movement in Texas-or tort deform movement, in Ralph
Nader's formulation. Here's what Nader and his co-author, Wesley
Smith, have to say about this wrecking crew in their book No Contest:
Corporate Lawyers and the Perversion of Justice in America: "The
tort deform movement is a brazen effort by corporations and politicians
beholden to corporate interests to pull off...a nationwide perpetual
bailout for polluters, swindlers, reckless health care providers,
and makers of tobacco, defective vehicles, dangerous drugs, and
many other hazardous consumer products. The effort to wreck the
civil justice system has grown over recent years into a veritable
industry [supported by] America's richest industrial and insurance
companies and their power-lawyer lieutenants."
If Bush gets into the White House and Republicans continue
to control Congress, they'll achieve what they want, which is
the demolition of the civil justice system. As governor, Bush,
with the avid assistance of his allies in the legislature and
on the state's Supreme Court-all of whom have been heavily bankrolled
by the same tightly knit corporate cabal-has already done a pretty
effective job of wrecking the system in Texas. The civil courts
are being made almost useless for ordinary people who sue corporations
and professional knaves (doctors, lawyers, accountants, etc.)
who cause physical hurt or financial harm.
For his 1994 and 1998 campaigns, Bush collected $41 million,
the biggest haul ever made by any gubernatorial candidate in history.
Nearly half of it, according to a Los Angeles Times/CNN analysis,
came from the following special-interest groups: banks and insurance
companies, energy and mining, realtors and developers, manufacturers,
lobbyists and big-time defense lawyers, wholesale and retail companies,
and the medical industry-in other words, to a very impressive
degree from those who want to kill pollution controls and worker
lawsuits.
Craig McDonald, who has worked with Nader for nearly two decades
and now runs Texans for Public Justice, the state's most militant
watchdog group in tracing the connection between money and power,
says $4.5 million of the contributions came from outfits established
specifically to give the business community and the health-care
industry immunity for their dire actions.
Chief among these outfits is Texans for Lawsuit Reform (TLR),
which has perhaps the biggest political action committee in the
state. The group knows how to play rough. In 1995 the Dallas Morning
News exposed TLR as a partner with Philip Morris in trying to
dig up dirt that would discredit environmental and consumer groups
like the Audubon Society, Public Citizen and Consumers Union.
TLR claims more than 4,600 members statewide, but you can
forget that democratic pose. The muscle and money come mostly
from just sixteen of the state's wealthiest people, who contributed
half the million dollars TLR spread around in last year's election
cycle. The "Sweet 16," as McDonald calls them with suitable
irony, are all connected to businesses or professions that have
good reason to want weaker liability standards.
Since energy and construction industries lead the state in
workplace deaths and injuries, it isn't surprising that TLR's
core members include tycoons like the Weekley brothers, who are
among the nation's top builders of homes and shopping malls. Other
TLR leaders include William McMinn, a top exec at Sterling Chemicals,
whose Texas City plant belched 228 million pounds of toxins into
the atmosphere between 1988 and 1996; Kenneth Lay, the boss of
Enron Corporation, North America's largest natural gas markets
as well as the continent's largest supplier of non-regulated electricity;
and Robert McNair, head of Cogen Technologies, the country's largest
privately held power producer. The conscience of this rich fraternity
can perhaps be measured most accurately by its desire to win legislation
shielding it from financial responsibility when the most vulnerable
employees-contract workers-are killed or injured at their work
sites.
One of the most interesting, and most diversely motivated,
is Dr. James Leininger of San Antonio, a religious zealot who
has given millions to support the school voucher crusade. He supports
~ the tort reform movement because his company, Kinetic Concepts,
I has faced lawsuits claiming its oscillating hospital beds crushed
and strangled patients.
It was enormously rich interests like these who made Bush
governor of Texas and now hope to use him at a higher level.
Bush's top promise while campaigning for his first term was
that he would put a heavy lid on punitive damages and hog-tie
plaintiffs' attorneys. And he did. It was his first order of business
after being sworn in. He designed his tort reform package as an
"emergency," so it zipped through the legislature. The
new laws were tightfisted; punitive awards were capped at $200,000,
or two times economic damages. The new laws set strict limits
on who could file lawsuits and where they could be filed. Also,
by increasing the bond plaintiffs would have to post from $2,000
to $5,000, his legislation made it harder for low-income people
to file medical malpractice suits.
Perhaps the most stunning "reform" was the blanket
protection given some professions. Craig McDonald explains: "Texas
had a very good Deceptive Trade Practices Act, under which a consumer
could bring a lawsuit for triple damages against almost any business
that lied about a warranty, deceptively sold you some goods or
services, or didn't represent you well enough. It was a very good
statute and a model for the country. The professionals and tort
reformers wanted to gut that statute, and Bush did it for them
in his first term. The framework is still there but the penalties
are gone. Professionals got absolute immunity for their misdeeds.
Doctors, lawyers, anyone who is a member of the professional class-now
you can't bring suit against them under the Deceptive Trade Practices
Act, because they are exempt. We're not kidding about this. Now
you can sue your auto mechanic, but you can't sue your doctor."
Bush's service to the tort reform gang was gratefully acknowledged.
Ralph Wayne, president of the Texas Civil Justice League, a big
anti-consumer lobby that gave generously to Bush's campaigns,
said the pro-industry changes in tort law "would never have
happened without George Bush. He kept his word far and beyond."
Meanwhile, the Texas Supreme Court was doing its share to
crush civil justice.
Texas elects its judges. That means campaign money shapes
justice. For most of its history, the Texas Supreme Court has
been bought off generously by various industrialists, medical
interests, business moguls and their defense lawyers. This has
been the accepted Texas way of dispensing justice. In short, one
might be kind and call them geishas, but in fact the justices
are whores.
For virtually its entire history, the court has been occupied
by conservatives. But there was one brief, miraculous period when
progressives seized control of the bench, with campaign money
coming abundantly from plaintiffs' attorneys. This bright era
began to develop in the late seventies. For the first time in
the memory of man, ordinary Texas citizens who sued for damages
were winning most of their cases. By the mid-eighties, they were
winning an astounding 70 percent of the time. Were these new,
progressive justices whoring, like the conservatives of yore?
Perhaps. But if so, for once they were our whores.
Naturally, the establishment couldn't allow that to continue,
so it fought back with ingenious propaganda and mountains of money.
First, in 1987, it enticed the crew of CBS's 60 Minutes to put
together a program titled "Justice for Sale," which
implied that the corruption of the progressive court was something
new. For everyone who knew anything about the history of the Texas
Supreme Court, the CBS "exposure" sounded as bizarrely
comical as the prefect of police's claim in Casablanca of being
"shocked, shocked" that gambling was going on in Rick's
saloon. (The 60 Minutes reporters said nothing about the prior
corruption of the conservative court.)
Next, the Republican tycoons poured millions of dollars in
what was ballyhooed as a "Clean Slate" of judicial candidates.
Their pious campaign worked. By the time Bush was elected governor,
conservatives once again had a majority on the court, and today
it is solidly Republican.
The "Clean Slate" Republican justices are wallowing
in huge piles of campaign money, most of it coming from corporations
and medical groups and their lawyers with cases before the court
Craig McDonald's watchdogs at Texans for Public Justice completed
a study this year showing that the eight sitting members o the
court elected since 1994 raised $7.2 million, or 69 percent of
their total war chests, from corporate PACs, corporate-funded
"tort reform" groups and defense lawyers, and that "in
60 percent of the opinions issued by the Texas Supreme Court in
a recent four-year period, one or more of the justices took campaign
contributions from at least one lawyer or litigant involved in
the case."
Plaintiffs' attorneys, once the deep pockets for Democratic
challengers, saw they couldn't win against that kind of money
and simply gave up. "They have won," Hartley Hampton,
president of the Texas Trial Lawyers Association, told the New
York Times last summer. "We're just trying to keep them from
bayoneting the dead."
How obvious was the whoring? Texans in general probably weren't
paying much attention, but members of the legal industry knew
they were operating in a high-priced bordello. A recent survey
by the State Bar of Texas found that four out of five lawyers
were convinced that campaign money shaped judicial decisions,
and-will candor never cease?-half of Texas's judges admitted campaign
money influenced their decisions.
At the Supreme Court level, that certainly seemed to be true.
The trade-off can be quite blatant. In one recent year, the Texas
Society of CPAs was at the top of contributors to the Supreme
Court. Three of the biggest accounting firms had three cases before
the court that year, and won two of them. "If federal judges
take money from HMOs, insurance companies, nursing homes, polluters,
lawyers or other parties with cases before their court, they run
the risk of bribery charges ' says McDonald. "Here in Texas
such practices are business as usual."
After the 1995-96 Supreme Court session, in which defendants
won more than 80 percent of the time, Walt Borges, director of
the pro-consumer Court Watch, said, "Consumers who are injured
by poorly designed products, patients maimed by negligent doctors
and hospitals, and anyone who must sue the government know that
the acceptance of their case by the Texas Supreme Court usually
is the kiss of death for their efforts to recover damages."
Things didn't improve. The medical and insurance industries
are among the most generous in stuffing the justices' pockets.
Perhaps that's why insurance companies won ten of eleven cases
in the court's next session; physicians, hospitals and pharmaceutical
companies were defendants in seven cases-they won all seven. In
the 1997 session, insurance companies won ten decisions and lost
three. Doctors and hospitals won eight, lost none. Also faring
well that year were manufacturers of defective products, who won
eight and lost three. In worker and whistle-blower cases, the
bosses won eight and lost none.
In the years when progressives controlled the court, individual
consumers and injured plaintiffs won far more than half the time.
Since the ideological turnaround, their fortunes have been
dramatically reversed. As already mentioned, some years they
have lost 70-80 percent of the* appeals. McDonald points out that
since 1995, "injured workers have prevailed in just one workers'
compensation case before that court."
It can get pretty raw. A baby was delivered at Houston's St.
Luke's Hospital with a permanently disabled arm. The parents sued
the hospital because the doctor who delivered the baby had
been given staff privileges despite having been repeatedly
sued for malpractice and despite lacking proper malpractice insurance.
The court ruled against the parents, saying the hospital wasn't
to blame for the doctor's misconduct.
Did the ruling have anything to do with the fact that lawyers
for St. Luke's had contributed $28,450 to the five justices who
voted for the majority, and that the Texas Hospital Association
had given $4,500 to the justice who wrote the majority opinion?
Admittedly, these amounts were trivial fractions of the total
given to the court by members of the medical community, which
in a typical year passes out more than half a million dollars.
And what did Texas hear from George Bush while scandalous
conduct of this sort went on, year after year? He was silent,
of course, and understandably. He could hardly pretend to be outraged.
After all, through appointments to fill vacancies and by helping
to guide their campaigns, he and his top political advisers had
virtually created the court.
What we have been describing is not merely bought-off-justice.
It is literally the destruction of the civil justice system in
Texas. To expand the destruction on a national scale, Bush as
President would simply have to appoint people to the US Supreme
Court who would, in the name of states' rights, leave such matters
to the whim of state courts-many of which are itching to follow
Texas's example. He could manage this quite easily.
The current US Supreme Court contains five on the right wing,
four in the middle. The last sign of lively liberalism disappeared
from its chambers ten years ago. No member of the present court
opposes the death penalty, and long gone are the days when there
was a Brennan or a Blackmun or a Marshall to write passionate
opinions supporting social justice for underdogs.
Bush would only need to retain that five-vote majority for
his mischief, but the odds are that he could soon boost it to
seven. Chief Justice William Rehnquist is 75 and is said to be
tired of the job and just hanging around waiting for a Republican
President to name his replacement. Justice Sandra Day O'Connor,
69, has had a bout with cancer and is said to be in the retirement
mood. Justice John Paul Stevens is 79, and you can draw your own
conclusions. Justice Ruth Bader Ginsburg, 66, recently had an
operation for colon cancer; the New York Times health columnist
Jane Brody noted that the cancer "was found only after she
experienced significant symptoms, which were initially misdiagnosed
as diverticulitis and which suggest she may have a more advanced
stage of the disease."
The disappearance of Stevens and Ginsburg, both moderates,
would open the way for Bush to create a court that would be overwhelmingly
reactionary far into the future. Justice Antonin Scalia is 63;
Justice Anthony Kennedy, a Reagan appointee who acts it, is also
63; Justice Clarence Thomas is only 51. Bush has said he would
appoint Justices of Scalia's philosophy, which is, like Thomas's,
medieval.
Odds like that are what provoke Nader and Wesley Smith to
talk dourly about the possibility of "a nationwide perpetual
bailout for polluters, swindlers, reckless health care providers,
and makers of tobacco, defective vehicles, dangerous drugs, and
many other hazardous consumer products."
Robert Sherrill, The Nation s corporations correspondent,
spent some of his best years in Texas.
Politics watch