HELLHOLE DECLARED  

Over those years a (not so) cottage industry grew up just to whip up support for such a law, the most influential being the American Tort Reform Association (ATRA), which actually created a new catch-phrase for the English language: "Judicial hellholes®" (yes, "judicial hellholes®" is actually their registered trademark.) Since they coined the term in 2002, it has appeared, sans trademark, in hundreds of articles and editorials to impugn any court that's plaintiff-friendly. To see how far the phrase has toddled away from its creators, look at coverage of Bush's January visit to the southern Illinois county that the Association tagged as the worst offender in the nation. Some newspapers and magazines ignored ATRA completely or pushed the mention far back in the story, so readers didn't know who was making judicial hellhole® decisions.

ATRA produces a widely-reprinted annual list of the worst judicial hellholes® and last year named the entire state of West Virginia, which didn't particularly endear the business coalition to the locals: "I don't like West Virginia being called a hellhole under any circumstances, particularly around Christmas time and the holidays," a Charleston plaintiffs' attorney complained to the Charleston Daily Mail.

That report cited several recent cases in the state, primary among them a settlement in a "medical monitoring" suit:

...These are suits where people with no injuries collect awards from local businesses by claiming that they should get regular check-ups for disease because they may have been exposed to a dangerous substance. West Virginia is the only state where people can collect cash awards in these suits even without showing that there is a reasonable probability that they will become ill and there is no medical benefit to the check-ups. Also cash is awarded to the plaintiffs to use as they please. The award is not reserved for medical monitoring purposes.

Pretty damning stuff, eh? Curse those trial lawyers and irresponsible judges for causing DuPont to unfairly pay out millions because of unproven charges against Teflon® (yes, ATRA neglected to acknowledge the trademark). It's a wonder that DuPont is still interested in developing any new Miracles Of Science® at all. But the lobbyist group is right; there is a "hellhole" in this story -- but not the judicial sort.

The case began in the mid 1990s, when an Appalachian farmer in the Ohio River Valley wondered why his cows were dying and being born with deformities, including blindness, misshapen teeth that prevented them from eating, and bell-shaped hooves. The local Parkersburg News reported that he started cutting his dead cattle open to find blackened, gelatin-like livers, lungs and kidneys. The farmer suspected the problem was caused by the cattle drinking from a creek that flowed near a landfill that DuPont had started using about 10 years earlier. The farmer eventually sued the company, and settled the case out of court with no admission of responsibility by DuPont.

But the lawsuit led to the release of a trove of incriminating documents, showing that DuPont knew about health risks with the chemical as early as 1961. The company also knew in the early 1980s that some employees at their plant were having babies born with birth defects similar to the deformities in rats exposed to the substance. And the company knew at least since 1984 that water wells in West Virginia and Ohio were contaminated. Memos surfaced where DuPont executives schemed on ways to keep the public from knowing about the contaminated local water supply.

The $70 million settlement that so offends ATRA is for blood tests for the estimates 80,000 people who drank water that might have contained the chemical. Residents will be paid up to $400 for providing two blood samples. DuPont will offer to help six local water companies upgrade equipment to reduce C8 in the water supply -- last year, one of the companies took the unusual step of warning its customers not to drink the water.

That's all quite a different picture than the one painted by ATRA; instead of revealing a courtroom injustice, it shows a compelling reason why class-action suits are an essential tool to hold companies accountable for public harm.

Yet not one of those newspapers that ran items on the hellhole list mentioned a single word about the celebrated case that was the main reason West Virginia was slammed. And it's not that the newsrooms would have needed to do time-consuming research; the DuPont settlement was released only about 3 weeks earlier, and was widely reported (although rarely with detailed background) in the U.S. press. Probably the editor at every business desk in the country could still recite basic facts from memory when the hellhole list was announced. In short, it's another cautionary tale of the Passive Press at its worst, willing and even eager to publish PR handouts as news.   (February 28, 2005)

TEFLON SETTLEMENT ONLY SCRATCHES THE SURFACE  

DuPont is also required to fund a $5 million study on health effects, which critics say is too little, too late. C8 has been used in industrial and consumer products for over a half century and today, as DuPont's teflon.com website boasts, "it's everywhere!" Besides non-stick cookware and stain-resistant carpet, it's used to coat windshield wiper blades, light bulbs, contact lenses, fast-food hamburger wrappers, microwave popcorn bags and myriad other products. It's also in you -- researchers estimate that 95 percent of all Americans have detectable levels of C8 in their bodies. You're in good company; it's also found in dolphins, polar bears, fish, fruit, and vegetables. The chemical does not break down over time, and no one knows why. Also unknown are the long-term effects of having it inside your body.

It's not that DuPont hasn't studied the chemical; in one set of experiments that began in the 1960s, chemists found that Teflon caused a flu-like illness called polymer fume fever when it was heated to about 400 °F -- the temperature a pan can reach after only a couple of minutes on the stove. But because animals given hours-long exposure to Teflon fumes did not die, the company declared cookware coated with the substance was safe for human use. No one knows exactly how C8 is spreading throughout the world, but it's quite possible that one way is via incinerators burning all those products coated with the chemicals. Nonetheless, DuPont says today that there is no data indicating there are any adverse health effects. (For more on questions about Teflon, Environmental Working Group (EWG) has a valuable issues page that includes additional background on DuPont's kitchen toxology experiments. It's also interesting to note that the American Tort Reform Association -- the lobbyist group that denounced the DuPont settlement in its annual "hellhole" report -- offers its own web pages denouncing EWG.)

All of this puts the industry-friendly Bush EPA in a sticky situation (okay, enough of the Teflon jokes). C8 isn't regulated by the FDA because it's an industrial chemical, not something the public eats; but at the same time, we're all ingesting the stuff. If it is a health risk -- and animal tests have tied it to liver and testicular cancer, reduced weight of newborns and immune suppression -- should there be government oversight, or not? Last month the EPA dodged the question by releasing a draft risk assessment that found there were "no notable health effects," but also said it presents "a potential risk of developmental and other adverse effects." At the same time, the EPA announced that it was creating a special panel of its Science Advisory Board to study the problem.

DuPont applauded the EPA's decision to stall the final decision, but Environmental Working Group charged the Agency with bias for throwing out the studies that linked the Teflon chemical to cancer in humans and other potentially fatal diseases. "There is a big difference between sound science and tilted science, and at every turn in this important process, EPA officials favored DuPont," EWG president Ken Cook said in a press release. "We don't know if DuPont lobbyists played a role or if these were just agency mistakes. But for those who were expecting a thorough and fair review, this is a huge disappointment."

The special panel met once in February, and a final decision is expected to come later this year. But if they're forbidden to consider those troublesome studies that connect C8 with human ailments, the outcome is probably going to be to DuPont's liking. Or just maybe, the panel will do the Right Thing and consider all the relevant data anyway. We'll see; rarely in the history of modern science has there been such demands on courage by the Expert Class to stand up for fundamental principles.   (February 28, 2005)

CHIEF JUSTICE ASHCROFT?  

The Times article lists a handful of likely replacement candidates that Bush might consider, all currently serving on Appeals Courts. Missing from the list is Alberto Gonzales, whose candidacy was often raised prior to his recent appointment to Attorney General. Also not included is the man Bush has actually named as a likely candidate: John Ashcroft.

In the secretly- recorded 1998 conversations with friend Doug Wead, Bush talks about Ashcroft more than anyone else: "He is a competent man. He would be a good Supreme Court pick. He would be a good attorney general. He would be a good vice president." In the Feb. 20 NY Times article that revealed the recordings, Wead predicted an uproar if the rigid evangelist were appointed. Bush replied, "Well, tough." Bush also fantasized about Ashcroft as a possible running mate: "I want Ashcroft to stay in there, and I want him to be very strong. I would love it to be a Bush-Ashcroft race. Only because I respect him. He wouldn't say ugly things about me. And I damn sure wouldn't say ugly things about him." It's a revealing choice of words; in Bush's view, willingness to cover each other's back from "ugly things" is the most important qualification.

But unless you read the actual New York Times article about the Bush tapes, however, you probably don't know about Bush's hope to put Ashcroft on the bench -- only a couple of other newspapers mentioned that in their summary of the Times' story, and only in passing.

How the media covered news of the Bush tapes is worth a little study itself. While there was almost no coverage of Bush's high opinion of Aschroft, apparently every print and broadcast source summarizing the story included the part where Bush 'fesses up to smokin' weed ("I wouldn't answer the marijuana questions. You know why? Because I don't want some little kid doing what I tried").

Does this flag a new interest in Bush's apparent pothead past? Apparently not. None of the coverage of the Times' article mentioned another passage, where Bush says he plans to stonewall -- but not actually deny -- charges of using cocaine:

He worried, though, that allegations of cocaine use would surface in the campaign, and he blamed his opponents for stirring rumors. "If nobody shows up, there's no story," he told Mr. Wead, "and if somebody shows up, it is going to be made up." But when Mr. Wead said that Mr. Bush had in the past publicly denied using cocaine, Mr. Bush replied, "I haven't denied anything."

Bush followed exactly that playbook in the primaries, claiming that answering any questions about cocaine would only be playing along with "gotcha" yellow journalism, as we discussed in our 1999 analysis, "How the Cocaine Scandal Helped George W. Bush." But like the cocaine allegations in the Times story, these new details on the morning show were almost entirely ignored by the press, mentioned only by the Washington Post.

Unless more tapes are forthcoming, it looks like media interest in Wead's remarkable recordings has waned, with little notice given to some of the more interesting parts. But don't be surprised if Bush nominates Ashcroft to the high court, just as he pondered nearly seven years ago.   (February 22, 2005)

SCHWARZENEGGER WATCH  

Q: You've got the best suits I've ever seen. Are they custom-made or are they off the rack?
A: You know, with my body I cannot get things off the rack ... .
Q: May I say, from one man to another, beautiful? They drape unbelievably. ''

Ja, KZLA is a mere country music station (another question was, "A lot of the guys we talk to ... say their wives turned them on to country music. Does Maria like it as well?") but these kind of softball questions are about all that Schwarzenegger is ever asked. "It's hard to imagine any world leader getting this type of treatment. All I know is, people who have spent their lives in the media business ought to have tougher questions for the governor,'' Doug Heller of ArnoldWatch.org told the Chronicle. "If you're a news reporter, the only time you should be asking about wearing a certain suit is to find out if he's using sweatshop labor.''

The media's too-cozy relationship with Schwarzenegger has been discussed here before -- the topic was chosen as the number-one story in our 2003 Wayward Press Awards. But in the year since that piece was written, a new and disturbing trend has emerged: A reluctance by the press to report stories that reflect badly on the popular celebrity politician.

One example is the declining coverage of Schwarzenegger's increasingly hate-charged language. First there was the incident last summer when the Governor called Democrats in the state legislature "girlie men" for delaying the budget. Eyebrows raised, and a few editorial writers chided him lowering the bar (Norman Solomon did a fine job of putting it into perspective). Critics be damned, Arnold's speechwriters clearly thought the line was a pip; two months later he reprised it at the national GOP convention to cheers and applause. Again the "gag" received wide coverage, and probably every newscast in the country included the clip that evening. But not so funny was the Sturm und Drang in his speech to California's Republicans five months later, on Feb. 11. "They have been fighting all along," he said of the Democrats and others who oppose his agenda. "This is nothing new. The only thing is that politicians up until now were worried about tackling those kind of problems. That's why they fixed a little here, a little there. But now we're going to the source. We're going right there where all the evil is, and we're going to fix this problem once and for all."

There was quite a bit of difference in calling political opponents "girlie men" and calling them "evil." There was also quite a bit of difference in media coverage; in the national press only the Wall Street Journal mentioned the Governor's "evil" remark at all, and without any context to show that he meant people, not particular laws or the political process, were the evil source of California's woes. The WSJ also noted that Schwarzenegger's aides were stunned when he abandoned his brief prepared remarks to attack the Demos, additionally calling them "spending addicts" who were taking "sleeping pills" and needed "outside intervention." Although these swipes were not in the same ballpark as calling people evil, any other politician making such not-funny -- as well as mostly incoherent -- remarks would still be rebuked.

But a more serious example can be found a few days earlier, when it was disclosed that last year Schwarzenegger used campaign funds to pay about $500,000 related to libel or sexual misconduct lawsuits. Only two newspapers -- the San Jose Mercury News and the Ventura County Star -- picked up the wire service story detailing this.

Using donations made to his "Californians for Schwarzenegger" committee during the 2003 recall election was apparently legal because state law allows officials to use campaign contributions to defend the candidate or aides against legal action stemming out of campaign activity, according to an expert quoted in the Feb. 1 AP item. In this situation, however, the campaign activitities were dirty tricks by Schwarzenegger aides to discredit women who accused him of groping them on movie sets or after media interviews. Well, the Watergate break-in was likewise "campaign activity;" should Nixon's reelection campaign fund have paid the legal bills for G. Gordon Liddy and the other burglars?

By any measure, this was a Big Story. So why did only two newspapers report it? A likely reason is the fear factor. Fresh in memory of editors and publishers everywhere was what happened to the LA Times just before the recall election, when it produced a series of excellent investigative stories on Schwarzenegger, exposing a pattern of alleged sexual battery as recently as Y2000. Amid charges that the series was unfair because it ran just weeks before the election, the Times lost more than 10,000 subscribers in the next few days. It was probably the largest media boycott (for non-labor reasons) in a generation, and is still discussed in journalism forums. Does that mean anything related to Schwarzenegger's groping has now become a third-rail topic? Write a letter to your local newspaper and ask why this story wasn't worth even a few column inches.

It's bad news for everyone if the U.S. press is fearful of giving Schwarzenegger the scrutiny he deserves. As the Wall Street Journal correctly opined this week, "national reporters should note that the most interesting political story other than Social Security this year is going to be the championship match for control of California." The governor wants to call a special election for a package of constitutional amendments and reforms that include the Mother of All Gerrymandering. But it's also the credibility of California's press that's at stake; the next time you hear a reporter ask Arnold fawning questions about his physique, wonder why the governor's not sweating out answers to his barely-legal use of campaign funds.   (February 17, 2005)

MOMMY, WHAT'S A FILIBUSTER?  

Gonzales is no pious idealogue like Ashcroft, but he has another trait that may be even more worrisome: His unswerving personal loyalty to Bush. In a decade of job appointments by Bush, Gonzales seems untroubled by abusing his positions of power to act as a kind of consiglieri to his mentor.

The most recent example surfaced last month, as Newsweek reported in its Jan. 31 issue. Then chief counsel to Governor George W. Bush, Gonzales reportedly pressured a judge to excuse Bush from jury duty in 1996. The reason? As Governor, Bush might someday be asked to pardon the defendant -- a drunken driving case involving a dancer at an Austin strip club. The bizarre excuse was more likely a cover to prevent Bush from having to reveal in court his own 1976 DUI conviction, which was a major skeleton in the Bush closet. As discussed in the Monitor's post-2000 election feature "The Unexamined Man," Rove and Bush had good reason to fear that his future in politics would be over if the public saw him as a reckless drunk.

An even more shameful example of Gonzales' carrying Bush dirty laundry can be found in 2002. As discussed at length in an earlier 404 Report, the White House and the Republicans were obsessed with smearing the Clintons, even a year past the election, with charges that the outgoing Democrats had vandalized the White House and looted Air Force One. The GAO looked at the issue and found the accusations were untrue -- while there were some "puckish" tricks, there was no malicious damage and no expensive cleanup. Not mollified, a rabid Clinton-basher in Congress demanded the GAO do a full-blown investigation. It took a year to write, but the complete GAO report had the same findings as before: there was no malicious damage and no expensive cleanup. That wasn't what the White House wanted to hear, and Gonzales took the GAO to task for not documenting everything down to overturned chairs to graffiti in bathroom stalls ("What W did to democracy, you are about to do here").

Although Gonzales' cover letter states "the President and the Administration... have no interest in dwelling upon what happened in the 2001 transition," make no mistake: his 76-page (!) letter reveals a flagrantly political agenda to build up Bush by tearing down Clinton, making the President appear victimized, yet gracious. Read that section of the GAO report (Gonzales' whine begins on page 83 of the PDF) and it appears that Gonzales' office ran a parallel investigation to the GAO's, seeking to collect enough details about Clintonista hullaballoo to generate a critical-mass for public outrage. But instead, it's his own pettiness that is striking; after a few pages, Gonzales begins to sound like a modern-day Captain Queeg, the mad captain in The Caine Mutiny, who was fixated on finding the sailor who ate a quart of frozen strawberries. You can't help but wonder: Didn't Gonzales' office have anything better to do in early 2002, what with the Terror War, 9/11 and all?

As it turns out, we would have been better off if Gonzales had spent more time fixated with Clinton's leavings. It was in January 2002 that he wrote a memo stating that parts of the the Geneva Conventions were rendered "quaint and obsolete" by "this new paradigm [of war]." We now also know, thanks to the Feb. 10, 2005 New Yorker, that the State Department and Gonzales' office were locked in battle over this issue: The White House counsel insisted that a country like Afghanistan in 2002 was a "failed state," and thus not covered by the Conventions. William Taft IV, the State Department legal adviser, said this was nonsense. "Our job is to keep the train on the tracks. It's not to tell the President, 'Here are the ways to avoid the law,'" he told the New Yorker. Gonzales' office was not swayed. Later, in August 2002, he went even farther and wrote the infamous "torture memo" for the Justice Dept. claiming Bush's "Commander-in-Chief authority" gives the President power to suspend "criminal prohibition against torture."

It is No Small Thing that the A.G.-designate was leading the cheer for torture, and the unanswered question was why. Is Gonzales a sadistic torture enthusiast who would have written these memos even if 9/11 and the Terror War had not occurred? (Very unlikely -- we hope.) As a former jurist now giving advice to the most powerful man in the world, did Gonzales seek out the opinions of the best legal and ethical minds available to him before drawing these conclusions? Or, in the light of knowing that his office was simultaneously spending considerable time and effort trying to find ways to tar the Clintons, is the guy such a sycophantic toady that he was writing pro-torture memos simply because he was told to? If so, who's the architect of the torture plan? And for that matter, were there other memos on torture? The two that are known were leaked to the press, just like the Abu Ghraib photos and everything else that has come out concerning Bush-sanctioned torture.

But during his January confirmation hearings before the Senate Judiciary Committee, Gonzales evaded answering such questions, and likewise waffled in 100+ pages of written responses, with answers such as, "I feel that the United States should avoid the use of such harsh methods of questioning if possible," and promising that Terror War suspects were always treated as if they were covered by the Geneva Conventions. The Committee also asked him for documents, but Gonzales couldn't be bothered to look for them. "We have a torture problem. The FBI says so. The Red Cross says so. The Defense Intelligence Agency says so. Additional allegations of abuse are being reported on a daily basis. Yet Mr. Gonzales can't remember any of the details of how it happened," Senator Kennedy jibed.

Only the full Senate vote stood between Gonzales and the Justice Department, and Democrats hoping to get straight answers from him had only one card left to play: the filibuster. Shutting down the Senate would show the Bush Administration that the Dems wouldn't play politics and compromise on such big issues and such an important post. And if they could stall long enough, perhaps the White House would even come clean on Gonzales' full role in drafting the memos; with luck, maybe the nominee would even commit to a simple yes-or-no answer as to whether the nation's top law enforcement officer intended to follow the Rule of Law.

Alas, the Democrats couldn't pull off a filibuster. Under Senate rules, 41 votes are need to launch the parliamentary event. The Democrats mustered only 36 votes against Gonzales; voting with the Republicans were Joseph Lieberman/Connecticut, Ken Salazar / Colorado, Mary Landrieu/Louisiana, Bill Nelson/Florida, Ben Nelson/Nebraska and Mark Pryor/Arkansas. Also sharing blame are the three Democrats who did not vote, for whatever reasons: Max Baucus/Montana, Kent Conrad/North Dakota and Daniel K. Inouye/Hawaii. (When is Lieberman finally going to come out of the closet as a Republican? He may not have Zell Miller's crazy hound-dog yap, but he always seems to be standing against fundamental Democratic ideals. Maybe the Dems could arrange a Cold War-style prisoner exchange for someone more principled, like John McCain.)

The Senate approved Gonzales 60-36. As such, he received six fewer "no" votes that Ashcroft got in 2001 -- the most opposition ever to an Attorney General nominee.

It's tempting to blame the filibuster's fizzle on those nine spineless Democrats (current Google results for "spineless Democrats:" about 791), but the U.S. press also did its usual miserable job, too. In the twenty-odd unique newspaper and wire service stories that appeared in the run-up to the Senate decision on Gonzales, not one can be found explaining what the Democrats would hope to gain from such a stunt. Very few even reminded readers about Gonzales' evasions at the hearings just a few weeks earlier.

Instead, the reports that mentioned a possible filibuster usually portrayed it as a delaying tactic -- as if bitter Democrats sought only to hassle Bush by dragging out Gonzales' approval. The losing team playing out the clock. As such, they made the Democrats appear crass and the Republicans look good by comparison -- which, of course, was also the objective sought by the White House three years ago, when Gonzales spent so much time rummaging through Clinton's old wastebaskets.   (February 10, 2005)