DISPATCHES

TEXAS LOSES JUSTICE

Texas lost a great populist judge with the passing of William Wayne Justice at age 89 (10/13). Judge Justice, who continued his work until a few months before his death, ruled in landmark cases involving public education, public housing, prisons and juvenile justice, among other issues, during 41 years on the bench. He came under intense criticism as he gave fair hearings to minorities and working people and shook up the establishment from his courtroom in Tyler, an East Texas outpost of the Deep South. “Judge Justice dragged Texas into the 20th century, God bless him,” said former Lt. Gov. Bill Hobby, who presided over the Texas Senate from 1973 to 1991. “He was very unpopular, but he was doing the right thing.” The late Molly Ivins once said, “He brought the United States Constitution to Texas.”

Justice was put up for the bench by populist Democratic Sen. Ralph Yarborough and nominated by President Lyndon Johnson in 1968. He was on the bench only two years when he ordered the state in 1970 to desegregate public schools. The next year, he ordered three all-black East Texas school districts annexed to other districts to achieve racial balance.

Justice was proudest of his order that Texas provide free public education. for undocumented immigrants and their children in the 1978 Plyler v. Doe decision. Tyler school officials had sought to exclude children of Mexican descent who couldn’t prove legal US residency. The Supreme Court affirmed that ruling in 1982, extending the right nationwide.

Justice took control of the Texas prison system after a 1972 lawsuit handwritten by inmate David Ruiz alleged overcrowding and inhumane conditions. In 1980, Justice issued a sweeping 188-page ruling in Ruiz v. Estelle that said Texas prisons were overcrowded, understaffed and offered inadequate medical care and inmates were brutalized. He ordered changes, appointed a special master to make sure they were implemented and found the state in contempt in 1987 when the state failed to follow through. Voters later that year approved a half-billion dollars in bonds for prison construction, which led to a prison system that today includes more than 100 prisons housing some 154,000 inmates. Federal oversight ended in 2002.

Justice and his wife, Sue, paid a personal price for his rulings, as he endured death threats, crank calls, hate mail, cross burnings on his lawn, ostracism at church, carpenters refusing to work on his home and beauty salons refusing to serve his wife. “Impeach William Wayne Justice” bumper stickers became commonplace in East Texas, but Justice never appeared bitter. “I do not indulge in self-pity,” Justice once said. “I knew what I was getting into. I could foretell that things would be difficult. But I didn’t foresee it would go on so long.”

Heather K. Way, a former law clerk for, wrote at TexasObserver.com (10/19) that Judge Justice liked to describe himself as a populist. “For Judge, at his core, being a populist meant embracing all people and treating them with equal respect and kindness. Whether he was presiding over a trial or greeting someone at the post office, he was genuinely interested in the lives of all he met. He embraced their struggles, their quirks, their humanity.”

She added, “Judge’s populism and compassion for humanity served as an anchor and moral compass in all that he ever did. As an attorney and a judge, it meant that our legal systems did not work unless they worked for everyone, rich or poor. As Judge once said, ‘The law ought to be decent, if nothing else. It ought to afford justice.’ He never once yielded from these principles. And that is why, in every single matter ever presented to his court, he demanded and vigorously pursued a just result.

“During our clerkships, we quickly learned that the petition scrawled out on scrap paper by a pro se [for self] petitioner was to receive the same due attention as a carefully crafted case filed by a big law firm. Judge also made sure that all parties were treated with dignity in his courtroom, which meant sending clerks out to buy a button down shirt from the local Walmart for a defendant who could not afford one.”

Dave Richards, who argued many voting rights cases before Justice in the 1970s, wrote for the Observer, “he gave the beleaguered Black world hope that they had never enjoyed before. Things were never the same again in East Texas.”

Lou Dubose, former Texas Observer editor, asked Justice, “Did you become the forum of choice for civil-rights forum-shoppers?” Justice replied, “I think the word got out that there was a judge in Tyler who was willing to follow the law.”

Justice stepped down as a full-time judge in Tyler in 1998 and moved with his wife to Austin to be closer to their grown daughter. He took over the Del Rio federal court docket for the Western District of Texas. In 2004, the University of Texas Laws Schoo named a center for public interest law the William Wayne Justice Center for Public Interest Law.

Alfredo Lopez, one of the immigrant children barred from school until Justice’s order, graduated from high school in Tyler and today is a US citizen — with a family of his own and a job as a grocery company foreman, the Dallas Morning News reported (10/15). “He’s had a great impact on my life and the rest of my family,” Lopez said of the judge. “If it hadn’t been for that ruling, we wouldn’t have finished elementary school, much less high school. Life wouldn’t be as easy as it has been.” (See tributes at texasobserver.org and William Wayne Justice: A Judicial Biography, by Frank Kemerer [University of Texas Press, 1991] A paperback edition is due out in November).

RECORD PACE FOR OBSTRUCTION. Republicans are on a record pace to block or delay judicial and executive appointments. Only three of President Obama’s 22 nominees for lower courts have been approved, as Republicans are “delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president’s judicial nominees,” Doug Kendall reports at Slate.com (10/26). Two additional nominees cleared the Judiciary Committee with bipartisan support in June but their floor votes are still pending as GOP leaders enforce party discipline that is lacking among the Dems. That’s a longer period than any of George W. Bush’s nominees sat waiting for a floor vote in 2007-08. With 95 vacancies on the federal bench, that leaves remaining courts overworked.

And it’s not just judicial nominees. Health and Human Services Secretary Kathleen Sebelius complained that the Senate’s failure to vote on the nomination of Regina Benjamin as surgeon general has hurt efforts to fight the global flu pandemic. “We are facing a major pandemic, we have a well-qualified candidate for surgeon general, she’s been through the committee process. We just need a vote in the Senate,” Sebelius told MSNBC (10/23). “Please give us a surgeon general.” Benjamin received unanimous approval by the health committee (10/7) but the floor vote has been held up by Republicans in a dispute over health reform.

Dawn Johnsen, Obama’s choice to be head the Department of Justice’s Office of Legal Counsel, has been waiting for Senate action since the Judiciary Committee voted 11-7 to support Johnsen’s nomination in a party-line vote in March. She was second in command at OLC in the Clinton administration and is a respected law professor, but Republicans complain that she was a lawyer for the National Abortion Rights Action League (NARAL) early in her career and she criticized the OLC’s endorsement of the abuse of detainees and other suspensions of constitutional rights during the Bush II administration. Atty. Gen. Eric Holder has called her confirmation “probably my top priority.”

People for the American Way reported (10/23) that between 1949 and 2009 — spanning 11 presidents — there were 24 nominees on which cloture was forced. In the first nine months of Obama’s first year in office, there have been five, meaning Senate Republicans are on track to force more cloture votes on more Obama nominees than practically every modern president combined. “And that doesn’t include the secret and not-so-secret holds,” Steve Benen noted at WashingtonMonthly.com (12/26). “The Senate isn’t supposed to be this dysfunctional.”

INSURANCE CORPS. EKE OUT PROFITS. Health insurance corporations are playing down their profits and Calvin Woodward of the Associated Press took the bait, writing (10/26) that “Health insurance profit margins typically run about 6%, give or take a point or two. That’s anemic compared with other forms of insurance and a broad array of industries, even some beleaguered ones. Profits barely exceeded 2% of revenues in the latest annual measure.” However, ThinkProgress.org noted (8/5) that insurance companies skim off 15% to 20% of premium dollars for administrative costs and profits. An examination of insurers’ “medical loss ratios,” — the fraction of revenue from a plan’s premiums that goes to pay for medical services — suggests that within the last 10 years insurers have been spending less on medical care and more on administrative costs and profits. In 1993, when the insurance industry was fighting the Clintons’ health initiative, corporations reported that they spent more than 95% on medical care, but it was down to 81% in 2008 and a report by Families USA found that insurers in the individual market sometimes maintain MLRs of only 60%, retaining 40% of premium dollars for administration, marketing and profits. The top five earning insurance companies averaged profits of $1.56 bln, led by UnitedHealth Group’s $2.977 bln and WellPoint’s $2.49 bln. and CEO compensation for these companies ranged from $2.39 mln for Humana’s CEO to $38.86 mln for Aetna’s CEO.

US HEALTH CARE WASTES ONE-THIRD. The US health-care system wastes an estimated $700 bln every year, or one-third of the nation’s health-care bill, Thomson Reuters found. Among the findings in the report by the parent company of Reuters News: Unnecessary care, such as the overuse of antibiotics and lab tests to protect against malpractice exposure, makes up 37% of healthcare waste or $200 to $300 bln a year; fraud makes up 22% of healthcare waste, or up to $200 bln a year in fraudulent Medicare claims, kickbacks for referrals for unnecessary services and other scams; administrative inefficiency and redundant paperwork account for 18% of healthcare waste; medical mistakes account for $50 bln to $100 bln in unnecessary spending each year, or 11% of the total; and preventable conditions, such as uncontrolled diabetes, cost $30 bln to $50 bln a year.

SOAKING THE POOR. The Center on Budget and Policy Priorities has reservations about a move to reduce subsidies for the poor contained in the merged Senate health bill. A family of three earning $27,465 a year before taxes — that is, at 150% of the poverty line — would have to pay $1,318 a year for health coverage under a proposal that Senate negotiators are considering in an attempt to cap the cost of insurance premiums at higher income levels. It is nearly five times the $275 that the family would pay under the health committee’s bill and $82 more than the family would pay under the finance committee’s bill.

INSURANCE STOCKS REBOUND WITH FILIBUSTER THREAT. After Senate Majority Leader Harry Reid announced he would be including a version of the public option (with a state opt-out provision) in the Senate’s final health care bill (10/26), insurance company stocks plummeted. The following day, Sen. Joe Lieberman (I-Conn.) broke with the Democratic caucus that he is a member of and said he would join a Republican-led filibuster if the public option is not removed from the bill, insurance company stocks shot up again, ThinkProgress.org noted (10/27). Nate Silver has noted at fivethirtyeight.com (9/9) that voters in every one of Connecticut’s five congressional districts favor the inclusion of a public option in health care legislation by wide margins. ThinkProgress.org noted (10/27) that the stated reason for Lieberman’s opposition to the public option — that it would increase the national debt and create another entitlement — is misplaced. As the Congressional Budget Office has reported, the public option would be self-sustaining and would cut the deficit. Insurance giant Aetna, based in Hartford, Conn., is the 10th largest single private contributor to Lieberman’s re-election committee.

WORST. BANK. EVER. Washington Mutual’s subprime home loans failed at the highest rates in nation, and in the 10 hardest-hit cities, more than a third of WaMu subprime loans went into foreclosure, Drew DeSilver noted in the Seattle Times (10/25).

How bad a bank was WaMu? Fay Chapman, the banking chain’s chief legal officer from 1997 to 2007, told the Times, “Someone in Florida had made a second-mortgage loan to O.J. Simpson, and I just about blew my top, because there was this huge judgment against him from his wife’s parents.” Simpson had been acquitted of killing his wife Nicole and her friend but was later found liable for their deaths in a civil lawsuit; that judgment took precedence over other debts, such as if Simpson defaulted on his WaMu loan. “When I asked how we could possibly foreclose on it, they said there was a letter in the file from O.J. Simpson saying ‘the judgment is no good, because I didn’t do it.’”

Andrew Leonard of Salon.com commented, “The bank made a loan to O.J. The words ‘epic fail’ hardly do justice to the tale of WaMu.” He added, “The story of WaMu is in large part the story of the Option-ARM — adjustable rate mortgages that entice consumers with very low initial payments — a loan that in retrospect seems almost purposely designed to get borrowers into deep trouble. In the short run, Option-ARMs were highly profitable for WaMu, so the bank paid mortgage brokers huge commissions on every sale, and instructed staff to go easy on the due diligence on that key question: Could the borrower feasibly pay back the loan? When the housing market blew up, WaMu found it could no longer sell off securitized packages of Option-ARM loans to Wall Street, and its business model collapsed.

“A Consumer Financial Protection Agency, in theory, would be given the task of protecting borrowers from toxic mortgage products such as the Option-ARM. But the (still surviving) banks are opposed to such an idea,” Leonard wrote.

DeSilver noted: “The White House is pushing for a new consumer regulatory agency to end these sorts of abuses, but the banking lobby and even federal banking regulators are opposed. Banks say more regulation would kill innovation.”

But the lesson to be drawn from WaMu, Leonard noted, is that “a Consumer Financial Protection Agency wouldn’t just protect consumers — it would also protect banks ... from killing themselves with their own innovations.”

TRILLIONS FOR DEFENSE, BUT BALANCED BUDGET FOR HEALTH. Congress appropriated $680 bln for the Department of Defense in FY 2010. Chris Preble of the Cato Institute observes that isn’t even the whole bill, as another appropriations bill moving through Congress governing veterans affairs, military construction and other agencies totals $133 bln, while the Department of Homeland Security budget weighs in at $42.8 bln. Then there is $16 bln tucked away in the Energy Department’s budget for care and maintenance of the country’s huge nuclear arsenal.

“All told, every man, woman and child in the United States will spend more than $2,700 on these programs and agencies next year. By way of comparison, the average Japanese spends less than $330; the average German about $520; China’s per capita spending is less than $100,” Preble wrote at cato-at-liberty.org (10/23).

Rep. David Obey, chairman of the House Appropriations Committee, in a expressed frustration that military initiatives don’t get the same budgetary scrutiny as domestic spending. “We are now in the middle of a fundamental debate over reforming our healthcare system. The President has indicated that it must cost less than $900 bln over ten years and be fully paid for,” he wrote in a letter (10/8). “The Congressional Budget Office has had four committees twisting themselves into knots in order to fit healthcare reform into that limit. CBO is earnestly measuring the cost of each competing healthcare plan. Shouldn’t it be asked to do the same thing with respect to Afghanistan?”

From The Progressive Populist, November 15, 2009