Evil Judges And Dumb Politicians

June 25, 2008

Re: Evil Judges And Dumb Politicians.


This space, as the media columnists call it, frequently rails against the stupidity of politicians and the evil done by judges. In recent days two events have added to these views.

To start with the one that will be more quickly dispatched, there is the comment made by Antonin Scalia at the very end of his dissenting opinion, which was the final opinion appearing, in the recent Guantanamo case. This is a case whose “backstory,” as the media types say, is an Executive Branch that fraudulently took us into war, held even innocent people in prisons for months and years, illegally spied on Americans, kidnapped people off the streets of foreign countries to be sent to various foreign nations for torture, tortured people itself in Guantanamo, Abu Ghraib and various secret prisons in places like Poland, did all this at the behest and with the approval of George Bush, and, as Justice Souter repeatedly said in a concurring opinion explaining some of what the dissenters willfully ignored, has kept people locked up without trials for fully six years now.

And, with this backstory, what was the final comment in Scalia’s opinion? It was “The Nation will live to regret what the Court has done today.” Imagine that. One of the guys who made George Bush president, some think the guy who made George Bush president, and who thereby caused, or at minimum enabled, the disasters which have beset us for the last seven years, has the inconceivable gall to say that the nation will regret the effort of the Court to make some dent, however small at present, that will help reverse one part of the evil done by the people he put into office. That Scalia made this inconceivable remark puts one in mind of the comment made by Joseph Welch to Joe McCarthy when the latter savaged Welch’s assistant, Fred Fisher, a comment to the effect that until that moment Welch had never really plumbed the full depth of McCarthy’s evil. That Welchian sort of comment is the only appropriate sort of response to Scalia. A guy responsible for putting Bush into office and causing a seven year disaster says the nation will regret a decision that makes an inroad on the disaster. Such judicial mendacity is just too much.

As a further fillip, Scalia’s opinion, in which he made the inconceivable brass-balls remark, was joined, and the remark therefore was joined, by John Roberts. Roberts obtained his justiceship by (i) unethically sitting on, and casting the deciding vote for the Executive on, a court of appeals case from Guantanamo involving the same kind of question at issue in the recent case, while (ii) meeting with Dick Cheney, David Addington, et. al. to assure them of his intellectual fealty to the ideas they wished to prevail. His conduct in meeting with Cheney, et. al. to further his judicial ambitions, while sitting on a case of crucial importance to them, was deeply unethical. I have said this previously, and in future will continue to say it even though all the mass media in the United States do not give a tinker’s damn that Roberts acted unethically. Perhaps I should add that neither the mass media, nor anyone else whom I’ve read so far, seem to have noticed nor cared about the fact that a guy who gave us George Bush (Scalia) now has the gall to tell us we will rue the day that the Court began to undue some of the evil done by the guy he gave us.

Turning now to the stupidity of politicians (who give us people like Scalia, one notes), I never thought to see the day when one of their own -- a highly regarded one of their own, no less -- would in effect say politicians are stupid. People like Hillary Clinton, after all (not to mention her equally venal husband), are widely thought to be so smart; one is clearly odd man out when one says, as has often been said here, “Not so.”

But that most politicians are not smart is the inescapable import of comments made by Chuck Hagel to the writer Elizabeth Drew when discussing Jim Webb, who was the subject of a lengthy article Drew wrote for the New York Review of Books. Here is what she reported:

Republican Chuck Hagel,
who isn’t spendthrift
with his praise of colleagues,
says, ‘I think Jim Webb is
one of the smartest guys
I’ve ever known. He has an
ability to think through
issues; not many here do.
(Emphasis added.)

* * * * *

Hagel continued:
He questions, he probes,
he thinks through the
consequences -- we
almost never do. We
take an action -- like
going to war – without
thinking. (Emphases added.)

There you have it. A well known, highly regarded politician says most of his colleagues cannot and do not think, which inescapably means they are stupid. It is hard for me to imagine a more explicit remark by a politician about the widely unrecognized mental boobdom, the mental kakistocracy, that has so long led us, that with but few exceptions, and those sometime evil or incompetent for other reasons, has so overwhelmingly been in high office since at least November 22, 1963. As one whose views on this and other subjects have often been regarded as far out, to put it mildly, I cannot tell you the satisfaction given by the fact that the highly regarded Senator Hagel says exactly what I think: that most of his colleagues cannot or do not think. (One wonders what Hagel would say about the stupid, unthinking, and often evil mass media, who give voice to his dumb colleagues and contribute thereby to the disasters they help cause (as with Iraq).)

You know, the older I get, the more the years in which I see the stupid or the evil or the insanely megalomaniacal -- the likes of Jeff Sessions and Jon Kyle and Trent Lott and Joe Lieberman and George Bush -- prevail and/or be given loud voice by the mass media, the more I find myself thinking, elitistly I am sure, that this country needs to be run by people of high intelligence, people who can and do “think through issues,” can and do “think[] through the consequences.” The older I get and the more I see, the more contemptuous I become, perhaps again elitistly, of views like Hillary Clinton’s claims that seventeen million people who voted for her -- though she may really mean the women who voted for her -- are being disrespected. I rarely watch cable news, so I really can’t comment knowledgeably about the claims of sexism leveled against the likes of Fox or CNN. But I do know that lots of us who disliked Hillary Clinton did not dislike her because she is a woman. We disliked her for the same reason we loathe her husband, who, after all, is a man. We disliked her because she, like he, is a liar, a dissembler, feels entitled, and will do anything, however rotten, to win. She, like he, is the very antivalues-epitome of the values we grew up with. Views like Hillary Clinton’s -- that we inevitably must disrespect women because we loathe her (as we do her husband too, and for the same reasons in both cases) -- are simply more consequences of the pervasive can’t- and-don’t-think nature of our politicians.

I cannot resist, at this point, throwing in a paragraph about a book I recently read which contains page after page showing, not necessarily always intentionally, politicians’ inability to think and their associated incompetence. The book is Philip Shenon’s The Commission[:] The Uncensored History Of The 9/11 Investigation. Despite efforts to often portray them sympathetically, one sees throughout the book the dumbness and incompetence of the two Commission heads, the politicians Tom Kean and Lee Hamilton, who thought they could accomplish something by playing nice with the White House, by not subpoenaing information but instead foolishly relying on the Executive to produce it voluntarily, who hired to be, and kept on as, Executive Director of the Commission a friend and coauthor of Condoleezza Rice -- who hired as Executive Director a guy who wrote the document which was the basis for preemptive war in Iraq and who tried to get the Commission to endorse the Iraqi war. One explicitly sees how Condoleezza Rice -- often said in this space to be both dumb and a liar -- flatly lied by claiming nobody could foresee what agencies had repeatedly warned of: the use of airplanes as missiles. One sees that the Republicans on the Commission venally sabotaged part of its work. One sees a long failure to pursue critical information such as that in NSA files. One sees how members of the Commission, especially its heads, mainly being creatures of Washington, did not want to point the finger of blame at specific people in Washington who richly deserved blame. One repeatedly sees a tale of venality, dishonesty, and, directly to the point here, stupidity. If you don’t believe it, read the book for yourself. If you do you will understand why the following is Shenon’s last comment in text, at the very end of the “Acknowledgements” section, when he is speaking of the families of the dead of 9/11, who forced an unwilling government to bring into being a Commission which unhappily turned out to be extensively stupid: “If the full truth is ever told about September 11, 2001,” says Shenon, “it will be their doing. It has not been told yet.” (Emphasis added.) One wishes to say “Of course it has not been told yet. The investigation, hearings and report were too often in the hands of politicians -- in the hands of the stupid.

The pervasively unthinking, the pervasively dumb, nature of our politicians is, one thinks, a major reason Obama had such an advantage in the race for the Democratic nomination. Judging by his background, he seems to be someone who can think. Naturally, right wing nuts will jump on that statement to claim I see Obama as blemish free, as never doing anything questionable, as never backtracking hypocritically, and so on. (I note that one already reads assertions, some questionable, some undeniable, that now that he has won the nomination and must be concerned with and obtain votes from middle roaders in the general election, he already is backtracking on Iran, on Iraq, on Jerusalem, on campaign financing, on other things.) Such false accusations by right wing nuts are, after all, a staple of our politics and may even be the staple of the right wing today. Obama has his faults, and it is not sarcasm to say that one of his advantages may be that he hasn’t been around long enough for more of them to have been uncovered. But, whatever his faults, it does seem from his background -- not least his academic accomplishments at Harvard Law School, as elitist as it may be to say so -- that he has the ability to think. Someone who can think is desperately needed now.

Obama’s ability to think will, of course, be tested in the next few months. It is not merely that he will have to determine positions on many subjects, nor merely that he will have to decide what to do in regard to all the trash that will be flung at him by conservatives -- who excel at that above all else, as shown by people like Rove and Bush -- and that will be mindlessly repeated by the mass media. It is also that he will have to deal with views flung at him by (a host of) Democratic Party types who, being politicians, can think no better, can think things through no better, than Hagel says Senators do. He will in particular be subjected to pressure by the Bill and Hillary Clinton types who have desired to make, and long succeeded in making, the Democratic Party a clone of the Republican Party and who wield such power in the Democratic Party. People in his own party will put a lot of pressure on Obama to adopt (failed) positions they favor and to eschew positions they object to. Obama will find it is tough, he probably has already found it is tough, to continuously resist bad ideas insisted upon by friends and allies. It can be even harder than resisting the bad ideas of enemies because enemies, unlike friends and allies, are not people one cares about pleasing. Surrounded by friends, allies and well wishers who, being politicians, are inevitably likely to press one bad idea after another on him, Obama’s ability to think, to resist the bad, will be tested. It probably would serve him well, if he has not done so already, to find, if he can, a corps of people to turn to for advice who, like he himself, are capable of high level thinking instead of merely the thoughtless, unperceptive reactions which, as Chuck Hagel made clear, are the hallmark of most politicians and which many of his allies will press upon him.*



* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about­_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

Prosecuting For War Crimes: As Lincoln Said, The Battle Of Today Is Not For Today Alone, But For A Vast Future.

June 24, 2008

Re Prosecuting For War Crimes: As Lincoln Said, The Battle Of Today
Is Not For Today Alone, But For A Vast Future.


In the last essay he wrote before his death, Arthur Schlesinger spoke of “national stupidity.” Here is what he said:

Sometimes, when I am particularly depressed, I ascribe our behavior to stupidity -- the stupidity of our leadership, the stupidity of our culture. Thirty years ago we suffered military defeat -- fighting an unwinnable war against a country about which we knew nothing and in which we had no vital interests at stake. Vietnam was bad enough, but to repeat the same experiment thirty years later in Iraq is a strong argument for a case of national stupidity.

This writer has expressed the same thought here many times, perhaps in more Runyanesque language. It has been said, on several occasions, “After Viet Nam, who would’ve thunk it?”

“[N]ational stupidity.” “Who would’ve thunk it?”. Yet it happened a second time. After Viet Nam no one thought it could happen again, and Congress took steps to assure it couldn’t, such as enacting the War Powers Act, reining in the CIA, and banning electronic eavesdropping of Americans by the NSA. But it did happen again and worse -- worse because today we not only have a years-long unwinnable war, but also torture, kidnappings and renderings to foreign countries for torture, many years of detention without trial of people who are innocent, the use of massive private armies to help carry out Executive policies, electronic spying on anyone and everyone the Executive wishes, suppression of the media far beyond anything experienced during Viet Nam, reducing Congress to an impotency exceeding that of Viet Nam, the use of Executive Branch lawyers to write professionally incompetent, secret memoranda giving clearance to awful policies, and the use of retired generals who are making a fortune from the Pentagon to spread its gospel on the mainstream media.

Once again, as occurred after Viet Nam, people are likely to reflexively think it cannot happen again. But what assurance is there that five or ten or twenty or thirty years down the road, when some militarists or reactionaries might again come to power, we will not get Iraq redux, just as Iraq was Viet Nam redux? We have been shocked once. What is to prevent the possibility of being shocked again? There are cultural reasons for a potential Iraq redux that go back to the very beginning of American history. They have been written of extensively in two journal articles that are now on the internet, with shortened versions of them having been picked up by numerous websites. (The articles are by Professor Michael Sherry of Northwestern University and by me.) Briefly put, the reasons for another possible redux include:

· The nation largely does not know, and ignores, history.

· A national penchant for violence.

· Hubris.

· Misbegotten, factually incorrect philosophies.

· Lies, distortions, and delusions.

· To the extent we consider history, viewing it through the prism of wars.

· A desire to maintain American power at a preeminent level.

· Congressional abdication of responsibility and congressional cowardice, coupled with Executive seizure of power.

· The fact that America itself has not suffered the ravages of war internally in any extensive way since the Civil War.

· Hollywood (i.e., The John Wayne syndrome).

· The South’s military culture coupled with its political power.

· Massive standing military forces and the added possibility of a draft.

· Public gullibility.

· The tenets of religious fundamentalism.

· Nearly uncontrolled nationalism.

· The fact that leaders’ families face no risks.

· Lack of accountability.


Because of these reasons we have, over the course of our history, fought, often repeatedly, the Indians, the French, the British, the Barbary States, the Mexicans, each other (in the Civil War), the Spanish, the Germans, the Japanese, the Chinese, the North Koreans, the Russians (at the end of World War I and in the air over Korea), the Viet Namese, the Panamanians, the Serbs, the Iraqis, and many others as well, such as the Haitians and the Grenadians. There are few other peoples who can “boast” such a historical record of wars, except perhaps imperial Rome and imperial Great Britain.

So the idea that in future we will not repeat the mistakes of Iraq would appear, on the basis of cultural factors and history, to be as likely to prove forlorn as the idea that World War I was the war to end all wars or the idea that we would not repeat Viet Nam. The forlornness is only the greater because American politicians, media and citizens continue to see the world as a place that could require military action against countries ranging from middle eastern theocracies and/or autocracies, like Iran, to China. Any politician who took a different position, a more pacific position, would be derided as “soft,” and probably could not win election.

What to do then to try to increase the possibility that America will not get into more misbegotten wars in the future and, if it does get into war, will not torture people, kill prisoners, spy on its own citizens, and commit other atrocious acts. There is only one thing to do: that is to hold American leaders to account for their actions so that in future other leaders will not repeat the actions for fear that they will likewise be held to account.

But domestic politics has proven useless in holding our leaders to account -- Lyndon Johnson retired to his ranch, George Bush was reelected and will retire to his, Nixon received a pardon and went back to San Clemente, McNamara became the long time President of the World Bank, Kissinger became richer and richer (and secretly advised Bush and Cheney on Iraq), nobody expects Rumsfeld to suffer, Wolfowitz was given a sinecure (which he blew) at the World Bank, lawyers who facilitated the misdeeds, such as Jay Bybee and John Yoo, are federal judges or professors at leading law schools.

Because domestic politics are obviously useless for holding the guilty accountable, we must try to do what was done in the 1940s to the leaders of nations who committed evil; we must try to do what was done to the German and Japanese leaders from top Nazis and Tojo right down to lawyers and judges. We must try to have them held accountable in courts of law. And we must insist on appropriate punishments, including, if guilt is found, the hangings visited upon top Germans and Japanese.

America’s Chief Prosecutor at Nuremburg, Justice Robert Jackson, said we were invoking principles that would govern our nation as well as our defeated enemies. We must attempt to make a truth teller of Jackson, instead of allowing our leaders to make a liar of him.

Today, there is no accountability for our leaders, nor do their own families face death on the front lines as occurred during the Civil War (when several Cabinet officials’ sons or brothers faced battle) and World War II (when one of FDR’s sons participated in extraordinarily dangerous missions in the Pacific). Today there are, rather, only very different factors -- factors that make it easy and safe for leaders to fight wars: there are half trillion dollar appropriations, huge standing military forces which the President orders into combat all around the world at the proverbial drop of a hat, a compliant Congress that refuses to do its duty, and an incompetent, if not venal, mainstream media. Not unless leaders fear prison or the gallows for actions that violate law will there be anything to check the next headlong rush to war for allegedly good reasons that later prove false, as with Mexico, Spain, Viet Nam or Iraq, a headlong rush to war regardless of whether it occurs under a McCain (who never met a war he didn’t like), an Obama, or someone whose name has not yet surfaced, and regardless of whether the headlong rush were otherwise to occur one year from now or five years from now or twenty years from now or thirty years from now.

There will, of course, be those who say that even if a precedent for punishment is established, future leaders will ignore the possibility of criminal punishment. Not so. Even the current crop of leaders were very concerned that they might be legally held to account, notwithstanding that American leaders have never before been held to account. It was the fear of being held to account in courts even though this had never happened before that led the Executive to commission exonerating legal memoranda from the John Yoos and their ilk in the Department of Justice and the Pentagon. For George Bush, Richard Cheney, Don Rumsfeld and Henry Kissinger to swing, or even for them to spend years in jail, would be a powerful lesson to future American leaders. It is not amiss to note that leaders of Germany and Japan from the end of World War II until today have never advocated the kinds of policies advocated by generations of their predecessors. There are several reasons for this, but one cannot discount the importance of the leaders’ knowledge that their predecessors swung in the 1940s.

There are also those who will say that American courts will never call this country’s leaders, or their minions like John Yoo, to account. That almost surely is true now and will likely remain true for at least ten or twenty years, even though library stacks and internet servers already are fairly bulging with books, journal articles, internet essays, legal complaints, newspaper articles and other materials showing that horrendous crimes have been committed, and more evidence of and reasons for guilt are in process of being written down. (Our courts are unlikely to act because, unlike in Germany or Iraq, our courts will be branches of the same government which committed the horrible acts, and will include deeply conservative political and judicial supporters of the acts.) But, as we have already seen in the last few years, in Italy, Germany and France, there are courts, and there also are international tribunals, that will prosecute these people, either in person if they dare venture abroad so they can be caught there, or in absentia if necessary. Even trials and convictions in absentia of current leaders would send a powerful message to future ones. And who knows, perhaps someday in the distant future even American courts may be willing to punish the criminal miscreants, or to at least admit that serious crimes have been committed (just as American judges ultimately admitted defacto, decades later, the horribly miscreant nature of the internment of Japanese Americans in World War II).

There will also be those who say, as is so typically American, that we should simply put Iraq behind us, should not seek “revenge” upon those responsible for it, and should just get on with life. But that was said about Viet Nam in its day, helped lead to Iraq, and was largely responsible for the pardon of Nixon which taught American leaders like Bush and Cheney that they can evade punishment for horrible actions. The “forget the past and get on with life” philosophy should not be indulged now any more than we indulged it with the Germans and Japanese. Otherwise we will get more Viet Nams and more Iraqs because leaders will know they can get away with anything, will suffer no consequences to themselves.

In his own time, in the vast cauldron of the Civil War, Lincoln said that the battle of today is not for today alone, but for a vast future. That is equally true of the necessity of bringing to book the men who have led us to disaster twice in one lifetime, in Viet Nam and Iraq. The battle to impose criminal responsibility upon them is not for today alone, but to safeguard a vast future. Otherwise the future will be threatened by Executive lawlessness undertaken because of knowledge that leaders need fear no personal consequences, the future will be threatened by the possibility of more Viet Nams, more Iraqs, more violent denials of basic civil liberties because leaders -- especially leaders of a militaristic or highly conservative cast of mind -- will know they need fear no personal consequences.

It is for all these reasons that I have called a conference to be held in Andover, MA on September 13 and 14, 2008. The conference is entitled Planning For The Prosecution Of High Level American War Criminals. The Conference is not intended to be only a discussion of violations of law that have occurred. Although discussions of ideas and facts showing violations of law will take place, library stacks and the internet are, as said, already bulging with materials showing violations (although in the last analysis decisions on violations will be made by judges if leaders are brought to justice). The Conference, rather, is intended to also be a planning conference, one at which plans will be laid, and necessary organizational structures will be set up, to pursue the guilty as long as necessary and to the ends of the earth in order to bring them before the bar of justice. The underlying law and facts will be discussed in the context of laying plans to pursue the guilty in courtrooms so that in future there may be no more Viet Nams, no more Iraqs.

The topics which will be discussed, and subjects on which plans will be laid, already include the following:


1. Brief introductory remarks stressing that the crimes and misconduct have now occurred twice in forty years -- in Viet Nam and then again in Iraq -- and that the high level perpetrators need to be punished (as occurred at Nuremberg and Tokyo in 1946) in order to insure that people will not do these things again (as the Germans and Japanese have not committed their crimes again).

2. A discussion of his recent book, The Torture Team, by Philippe Sands, including how Executive Branch lawyers failed in their duties (yet remained in power or gained soft landings (as, e.g., federal judges and professors at leading law schools)).

3. What domestic and international crimes were committed, which facts show crimes under which laws, and what punishments are possible.

4. What high level Executive officials (and federal judges and legislators too, if any) are chargeable with crimes.

5. What international tribunals, foreign tribunals and domestic tribunals (if any) can be used, and how to begin and prosecute cases in front of them.

6. What cases have already been brought, with what results and the reasons for the results.

7. What must be done to make the question of prosecutions an issue in the 2008 political campaign and to have the question become a significant subject in the media and on the internet.

8(a). Creating an umbrella coordinating committee with representatives from the various -- and increasing number of -- organizations that are involved in cases.

(b). Creating a Center to keep track of and organize compilations of relevant briefs, articles, books, opinions, facts, etc.

9. The possibility of having a Chief Prosecutor’s office ala Nuremberg.

10. Review and summary of the action items that have been decided upon.


Both experts and the public are invited to the Conference. It will be held at 500 Federal Street in Andover, Massachusetts, from 10 in the morning until 4:30 in the afternoon on Saturday and Sunday, September 13 and 14. Breakfasts, lunches and dinners will be provided, and will be covered by a conference charge of $125. Hotel rooms will be available a mile away, at the Wyndham Hotel, for 99 dollars per night, with buses available to take attendees to and return them from the conference.

Anyone who wants to attend the conference should contact my special assistant, Jeff Demers, at demers@mslaw.edu or at (978) 681-0800.*




* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about­_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

June 2, 2008


Re: Alexander Pekelis And Drug Company Cases In Which Consumers Have Been Killed Or Injured.


On March 12th, a posting here discussed Alexander Pekelis, a great scholar killed in a plane crash at Shannon Airport in 1946, 62 years ago. (Emails subsequently arrived from an Italian professor who is writing a paper on Pekelis and lamented that Pekelis’ work has been ignored, and from Pekelis’ daughter, a judge in the State of Washington.) The posting spoke of Pekelis’ jurisprudence of welfare, which required judges to look at social science materials when determining what legal rule would best serve society. It went on to discuss one recent Supreme Court case in which the welfare of society at large -- the welfare of the common man -- was trashed by the high Court’s screw-the-small-guy-five -- Scalia, Thomas, Roberts, Alito and Kennedy, who were joined, unbelievably enough, by Souter, Breyer and, partly, by Stevens. Only Ginsburg had stood for decency.

The question of the case was whether, under state law, suit for damages could be brought against the manufacturer of a defective catheter by a man who was injured when it ruptured in his heart during open heart surgery. The screw-the-small-guy-five-plus-two-and-a-half-more said suit could not be brought under state law. For state law supposedly was “preempted” as the lawyers say, i.e., was nullified because Congress had given the Food and Drug Administration the power to regulate medical “devices.” The geniuses at the FDA, opined Justice Scalia, will make better decisions than juries on whether a defective device should have been saleable because it would help more people than it may harm, or should not have been saleable because it will cause more harm than benefit.

The posting explained several reasons why Scalia and his pals basically were, as we used to say in Chicago, full of crap. I will not reiterate those reasons, except for one: the FDA had repeatedly been found to make horrendous mistakes and to be incompetent. Let me now add that, in Pekelisian terms, the Supreme Court ignored the findings of science and social science with regard to the FDA’s incompetence and mistakes. Also, it supported big business. It did these things in service of its own speculation, which had no evidentiary basis whatsoever, that societal welfare would be benefited more by denying recovery to the injured under state law despite horrible mistakes and malperformance by the FDA and manufacturers than by permitting such recovery when defective devices injure or kill people.

The catheter case, Riegel v. Medtronic, was decided on February 20th of this year. Pending before the Supreme Court on that day was a similar case, Warner-Lambert v. Kent, where the question was whether recovery under state law was preempted because the drug Rezulin had been approved by the FDA. Rezulin, as is now infamous, could cause serious liver damage. Recovery was being sought under a state law that allowed it only when the FDA had, in effect, been defrauded because the drug manufacturer withheld information that would have caused the FDA not to approve the drug.

Although the Rezulin case involved a drug and the Medtronic case involved a device, one would think that if FDA authority preempts state law in the one case, it would do so in the other as well. The Rezulin drug case was argued orally to the Court on February 25, just five days after the Medtronic device decision. Then, only a week after the oral argument in the drug case, a strange thing happened. The Court in effect got rid of the drug case. It issued an order saying merely that the judgment below “is affirmed by an equally divided Court,” with Justice Roberts not participating in the case. The judgment below, contrary to the Supreme Court’s Medtronic decision, had been that state law was not preempted, so the affirmance meant the injured person in the Rezulin case could sue under state law.

Why did the Court issue a one line affirmance, much less one that at least on its face seems inconsistent with a case decided less than two weeks before. One can only speculate, because there can be a number of different possible reasons. But one reason necessarily jumps out. The Court, less than two weeks after Medtronic, which had been 7½ to 1½ in favor of preemption, was now 4 to 4 on preemption in the absence of Roberts. A one line affirmance of the decision below is common in such circumstances, if memory serves. Moreover, on January 18th the Court had already agreed to hear another drug case, one involving a drug produced by Wyeth called Phenergan. The FDA - approved label for this drug had not warned that use in a particular way could be disastrous; the drug’s injection had caused a musician to lose an arm; and the question is whether a recovery is precluded because state law is preempted by the FDA’s approval of the labeling. The Court had even ordered an expedited briefing schedule in the case (though subsequently the schedule was lengthened, so that now the case will not be heard until this autumn).

What is especially interesting, nonetheless, is that, as said, in the Rezulin case the eight participating judges were divided 4 to 4, although in the prior Medtronic device case the count among the same eight (i.e., ignoring Roberts) was 6½ for preemption. In less than two weeks -- between February 20th and March 3rd, the pro-preemption side, the screw-the-small-guy side, had lost 2½ votes. How did that happen?

Well, there are several possibilities, but the truth is I’m not smart enough to know. Maybe some justices see differences in the federal statute when it comes to drugs as opposed to devices. Also, though I’ve read the transcript of the oral argument on February 25th, a fair amount of it is legal gobbledygook to me. The only thing that really stood out to me is that Justice Breyer, who has drunk the pro FDA Kool Aid, is really worried that juries will do wrong where the geniuses at FDA will do right. But Breyer voted with the manufacturer, in favor of preemption, in Medtronic, with no sign of the slightest comprehension of the FDA’s terrible inadequacy. So his concern for the FDA and distrust of juries represents no change in his position.

Nor does the 4 to 4 division in the Court means the injured person is likely to win the Phenergan case when it is heard this fall. In the fall, Roberts, who voted against the injured person in the catheter case, will be participating in the Phenergan case one presumes, and will likely provide the fifth vote to screw the small guy again, and to help the drug companies again, by finding preemption again so that the injured person again can’t sue. (As written here previously, I regard Roberts as a bad person, a pro big business, pro unlimited executive power person who lied and unethically cheated his way onto the Supreme Court. His dishonesty was expressed, dramatically and accurately, by the nation’s leading conservative court of appeals judge, Richard Posner, who said in his recent book, How Judges Think (p. 81), that “The tension between what he said at his confirmation hearing and what he is doing as a Justice is a blow to Roberts’ reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”)

In addition to Roberts participating in the Phenergan case and likely voting for the drug company in favor of preemption, it is also quite possible -- even probable? -- that one of the (unknown) Justices who switched sides in the Rezulin case will switch back again in the Phenergan case because the latter involves labeling of drugs and because state law in the Phenergan litigation, unlike in the Rezulin case, does not limit recovery to situations in which a manufacturer defrauded the FDA.

In any event, after the Medtronic decision of February 20th and the oral argument in the Rezulin case on February 25th, “a funny thing happened on the way to the forum,” so to speak. The New York Times took out after both the FDA and the Supreme Court’s decision in the Medtronic case. On February 26th, six days after Medtronic, and one day after the oral argument in the Rezulin case, the Times published an article (on P. A16) on what the Court was doing. It cited and quoted Justices (like Breyer) who claimed to worry about whether jury decisions would gum up a situation which should be left to the geniuses at FDA. But the very last paragraph of the article said this:

The government argues that the F.D.A. competently oversees the drug and device markets, and should not be second-guessed by courts. But the Institute of Medicine, the Government Accountability Office and the F.D.A.’s own science board have all issued reports saying poor management and scientific inadequacies make the agency incapable of protecting the country against unsafe drugs, medical devices and food. (Emphasis added.)

To return to a subject discussed above, as unlikely as the cognoscenti may claim an impact to be, one nonetheless cannot help wondering whether this short yet devastating paragraph, appearing just six days after Medtronic, and only one day after the oral argument in the Rezulin case, had an impact on one or more Justices that contributed to the switch manifested six days later, on March 3rd. That was when an “equally divided” Court of 4 to 4 affirmed the lower court’s anti-preemption decision in the Rezulin matter less than two weeks after 7 ½ Justices were for preemption in the catheter case. The New York Times’ paragraph, one notes, was worlds removed from the dry legalisms, from the legal abstractions and non-evidence-based judicial speculation, that had been the staple fare until then. It was the beginning, or at least the start of the beginning -- pace Winston Churchill, who said that Allied victory in North Africa was at least the end of the beginning -- of the presentation of the kind of information that Alexander Pekelis so justly thought necessary in judicial cases, information about what is really happening in the world.

Five weeks after the Times article of February 26th, the Times published a long front page article on April 6th tellingly headlined Drug Makers Near Old Goal: A Legal Shield, with the subheadline Court to Rule if F.D.A. Approval Bars Suits. This article mentions the Medtronic decision and the fact that the Phenergan case would be heard by the Supreme Court in the fall, but was essentially about a case currently pending in a federal trial court in Ohio involving the Ortho Evra birth control patch made by Johnson & Johnson. That patch is claimed to have caused disaster by releasing far more estrogen into the body than birth control pills do, while its FDA approved label wrongly described the amount of estrogen it released.

The Times’ article did a real job on both the Ortho Evra patch and the FDA. Among its points were:

· “More than 3,000 women and their families have sued,” claiming “heart attacks, strokes and, in 40 cases, death.”

· “From 2003 to 2006” the FDA “received reports of at least 50 deaths associated with” the patch.

· Johnson & Johnson’s own internal documents showed that it knew the patch “delivered far more estrogen each day than low dose pills.”

· “The F.D.A. did not warn the public of the potential risks until November 2005 -- six years after the company’s own study showed high estrogen releases.” (Emphasis added.) Subsequent to the FDA’s warning, the sales of the patch dropped dramatically. (By February 2008 they had dropped to 187,000 from 900,000 in March 2004.)

· Plaintiffs’ lawyers and professors say that drug companies, on which the FDA necessarily relies to fully and honestly report test results, know and take advantage of the fact that the FDA is “overwhelmed,” “does not have the funding or the manpower to police” them, and rarely penalizes them even when they violate agency rules.

· Even the FDA’s own Commissioner has “acknowledged that the agency . . . may not be ‘adequate to regulate the food and drugs of the 21st century.’”

· “Last month, at a trial over schizophrenia drug Zyprexa, Dr. John Gueriguian, a scientist who worked at the F.D.A. for two decades, testified that the agency did not always ask for strong warnings even if it believed a drug was risky. Companies typically oppose warnings, and the agency knows it must compromise on its requests or face years of delay, Dr. Gueriguian said.

‘“We at the F.D.A. know what we can obtain and we cannot obtain,’ Dr. Gueriguian said. ‘We have many, many problems, and we have a management system – what we can’t obtain we will not ask.”’

· In 1996 Johnson & Johnson promoted its patch to the FDA in part on the premise that “it would be likely to expose women to less estrogen than pills.” After all, “High doses of estrogen are known to raise the risk for blood clots that can cause heart attacks and strokes.” But the patch was quickly found to apparently deliver a lot of estrogen -- more than pills. Yet the patch was marketed by Johnson & Johnson on the basis of statements falsely saying it released an amount of estrogen lower than was accurate, and “Clinical trials conducted before the patch was approved raised other red flags, as patients complained of breast soreness and nausea. ‘The side effects seem related’ to high estrogen doses, one company scientist wrote in an e-mail message.”

· “For years, top officials at the agency acknowledged that lawsuits could aid the agency’s oversight of safety issues. In the last decade, suits over Zyprexa, the withdrawn pain pill Vioxx, the withdrawn diabetes medicine Rezulin, the withdrawn heartburn medicine Propulsid and several antidepressants have shown that companies played down the risks of their medicines and failed to disclose clinical trials to the public even as they have aggressively marketed their drugs.” But the FDA’s support for private lawsuits changed under the [pro big business] Bush Administration. “[N]ow the agency says a proliferation of lawsuits could lead to an overlapping patchwork of rules that would burden companies and might discourage patients from taking useful medicines.”

· In late 2005 -- about six years too late, I would judge -- the FDA finally required a warning that the patch “exposes women to higher levels of estrogen than most birth control pills,” but “lawyers for Johnson & Johnson say that patients should not be allowed to sue the company because the F.D.A. approved the patch and its label”. [Many lawyers, of course, will defend any evil for a buck, and it is no surprise that drug company lawyers in the Supreme Court are among the most successful of such a (despicable) breed.]

The Times’ article, as said, did a (much deserved) job on the drug companies and the FDA. It was a continuation of presentation of the kind of information that would be called for by Pekelis’ jurisprudence of welfare, but not by the abstract legalisms and evidence-free speculations so often indulged by the Supreme Court.

A week later, on April 14th, the Times’ editorial page weighed in with an editorial entitled “The Dangers in Pre-emption.” Pointing out that the dangers of this doctrine were made clear in the April 6th article, the editorial said:

“The pharmaceutical industry and its good friends in the Bush administration are working hard to prevent consumers from filing damage suits for injuries caused by federally approved drug products. They may soon get a helping hand from the Supreme Court, which has already barred many suits over faulty medical devices.”

“If this perverse legal doctrine, known as federal pre-emption, continues to spread, the public will be deprived of a vital tool for policing companies and unearthing documents that reveal their machinations.”

The editorial added that “the disturbing element is that the company seems to have done its best to mislead the F.D.A., as revealed in company documents made public as a result of the lawsuits.” It closed with the following:

“Whatever the merits of this case, it would be a mistake to rely solely on the F.D.A.’s judgment. The agency is short of skilled scientists. If a company buries important information deep in the bowels of a report, the agency may not detect it or appreciate its significance. Injured patients should not lose the right to sue if they are harmed by duplicitous manufacturers.”

Two days later, on April 16th, the Times had an article on an April 15th hearing at which ranking Senators said the F.D.A. is seriously underfunded. The article (on page A15)added that “A report last year by a panel of outside advisers to the agency said American lives were in danger because the F.D.A. did not have the money, the staff or the scientific expertise to protect them. And in a speech last month, Dr. von Eschenbach [the head of the F.D.A.] acknowledged that the F.D.A. ‘may fail in its mission to protect and promote the health of every American’ and that ‘peril exists.’”

* * * * *

So. . . . where are we with regard to preemption of lawsuits against drug companies? Where should we be? These questions involve ideas that have been presented here before, plus other ideas.

We know that thousands of people have been killed or injured because of defective and dangerous drugs and devices or inadequate warnings on labels. Unless everything the Times has written is a lie, we know that this disaster is in part due to the F.D.A.’s incompetence and its insufficient staff and money. We know that drug companies take advantage of the F.D.A.’s inadequacies to put defective products on the market, or products with insufficient warnings on their labels, and thereby also cause the deaths and injuries. We know that the Supreme Court’s statements about the relative danger of the F.D.A. and juries are speculations pure and simple, with no evidentiary basis whatever -- in this regard, justices like Breyer, who was an expert on regulation before becoming a judge, have drunk the Democratic left’s Kool Aid about the glories of regulation in protecting people, while reactionaries like Scalia are pro big business and to hell with the small guy. We know that the Medtronic case, unless reversed by Congress, or unless lower courts deliberately choose to and do find ways to ignore it because it is so vicious, will screw the small guy who is harmed by devices that are defective or defectively labeled. We don’t know yet what the Supreme Court will do with the upcoming Phenergan drug case, where it could impose the same vicious, anti-small –man, pro big business ruling of Medtronic, or could, even if inconsistently, break with Medtronic to rule that state law suits against defective, or defectively labeled, drugs are not preempted even if suits over defective devices are preempted.

We can expect the drug companies’ lawyers, and their buddies in the Bush Administration, to continue to make the same kind of legalistic, often completely abstract arguments favoring preemption that they have made in cases like Medtronic, the Rezulin proceeding, and so on. Lawyers for injured plaintiffs, however, would be well advised to go beyond legalistics and abstractions to one of two Pekelisian positions. Using the outside and internal reports, and already existing testimony before Congress, that find the FDA inadequate and overwhelmed, they can argue there already is ample scientific and social science evidence that state law lawsuits are essential to protect consumers by discouraging drug companies from marketing products that have serious problems or whose labels do not describe possible problems. That is, they can argue that the evidence already shows that the FDA cannot do and has not been doing the job.

As a secondary position they should argue that, if the Court does not accept the conclusiveness of the evidence that already exists in reports, testimonies, etc., then there should be trials in which plaintiffs put on evidence on the question of the adequacy of the FDA’s conduct, and the honesty of drug manufacturers’ conduct, in specific cases. If a manufacturer and the FDA acted honestly and fully competently, and did all that could be done at the time, then a state law lawsuit would be preempted. If there was, as there so often has been, inadequate testing, inadequate disclosure, withholding of information by the manufacturer, or other derelictions by the manufacturer, or incompetence or sloth by the FDA, then state law lawsuits should be permitted -- they will not be preempted.

The Supreme Court has expressed concern that such judicial inquiries into FDA conduct will tie up some agency personnel. My reaction is, “big deal.” Is it better for the FDA and the drug manufacturers to get away with conduct that kills and maims people than for some FDA officials to have to devote some time to lawsuits because courts, ala Pekelis, are trying to get the evidence of how things happened in the real world? The question answers itself, does it not? Moreover, I frankly suspect that a few multibillion dollar recoveries in large class action cases against drug or device companies that lied or cheated or withheld information, or against companies that did much less than they could have to try to insure safe products and full disclosure of possible danger on labels, will work wonders in causing the drug companies to clean up their act and in providing greater safety to the public.

The kind of evidentiary hearings discussed here combine Pekelis’ call for evidence of what is happening in the real world with an analog to ideas previously bruited here that the Supreme Court should find ways of allowing greater protection from states when the states exceed the protections of the federal government, and the Court should look at the thoroughness and competence with which governmental bodies have acted. All of this – Pekelis’ ideas and mine – are far superior to the crapola, to the dry legalisms and baseless speculations, that the courts otherwise indulge in order to feed evidence-free decisions that simply accord with judges’ prejudices and result in harm to the average guy.*



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