After the Senate Judiciary Committee in March rejected the nomination of former segregationist Charles Pickering Sr., a district judge from Mississippi, to the 5th Circuit Court of Appeals, the next fight may be over Priscilla Owen, a conservative justice on the Texas Supreme Court, for the New Orleans-based appeals court, the New York Times reported April 7. Owen, a staunch ally of big business on the state court, was elected in 1994 with the help of an $8,600 donation from Enron. She later wrote a majority opinion that reversed a lower court order, saving the company about $225,000 in taxes. Texans for Public Justice, which tracks the influence of money on courts, told CQ Daily Monitor Owen "easily is the most conservative member of an extremely conservative court."
Bush clearly intends to make political hay of his appointments. He has 56 judicial nominees pending, including 22 for appeals courts, and many of them are members of the right-wing Federalist Society. On a recent campaign swing through the South, the Times noted, Bush said he said he wanted a Republican-controlled Senate so he could put more conservatives on the bench. He has an uphill fight in this November's elections, where Democrats have only 14 seats at stake, while Republicans must defend 20 seats. But Republicans hope to make the rejection of Pickering and delays an issue in several Senate races in the South. The Senate Judiciary Committee is expected to schedule hearings and votes on more moderate nominees and delay action on the right-wingers.
Among other bad judicial nominees, the Boston Globe March 16 noted US District Judge D. Brooks Smith, for the 3rd Circuit Court in Philadelphia: "His record includes a history of being reversed by higher courts on consumer and employment cases, and he has criticized the Violence Against Women Act."
Jeffrey Sutton is a nominee for the 6th Circuit Court in Cincinnati. He is a states' rights advocate who told the Associated Press in 2000 that the Americans with Disabilities Act is not needed because states have laws banning discrimination. "That's a harsh judgment about a law that has opened doors for many people," the Globe said.
The Globe also noted that when she was part of the Reagan administration, Carolyn Kuhl was a champion of restoring tax-exempt status to segregated schools such as Bob Jones University when in 1983, in an 8-1 decision, the Supreme Court ruled that these schools are not entitled to tax-exempt status. Now Kuhl is a Los Angeles Superior Court judge and a nominee for the 9th Circuit Court.
Elliot Mincberg, vice president and legal director of the liberal People for the American Way, listed a dozen appeals court nominees who were troubling, including the above as well as Deborah Cook, an Ohio Supreme Court justice, for the 6th Circuit; Terrence Boyle, a North Carolina judge and former aide to Sen. Jesse Helms, and Dennis Shedd, a South Carolina judge and former aide to Sen. Strom Thurmond, for the 4th Circuit; Michael McConnell, a Utah law professor, and Timothy Tymkovich, for the 10th Circuit; John Roberts and Michael Estrada, for the DC Circuit; Lavinski Smith, Arkansas Public Service Commissioner, for the 8th Circuit.
"What it reinforces above all is the need to thoroughly examine the people the White House has nominated without consulting folks in advance," Mincberg said, noting that President Clinton consulted Republicans and Democrats as well as the American Bar Association before submitting his nominations. (See pfaw.com and independentjudiciary.com.)
DUBYA'S SMIRK SLIPS. Rising gas prices and other fears about the economy could wipe the newly restored smirk off George W. Bush's face. Gas prices jumped a quarter in March, driven by the approach of summer and the uncertainty of supplies in the Middle East, the Washington Post reported April 8. Bush's Energy Department plans a public relations offensive, which includes the reopening of a toll-free hot line for reporting price gouging that drew 3,000 calls when it operated for a month after Sept. 11. Energy Secretary Spencer Abraham, criticized for letting industry officials write Bush's energy policy last year, planned to meet with consumer groups the week of April 8, but the White House's prescription for economic recovery is still for Congress to pass more tax breaks for business, hold back government spending, restore White House power to negotiate international trade deals and approve increased energy production, including oil and gas drilling in the Arctic National Wildlife Refuge. Democratic consultants say polls show that while consumer confidence soared in March to the highest level since Sept. 11, voters worry about health care costs, especially prescription drugs, jobs and retirement security.
Also, a new Gallup poll finds that the race for majority control of the US House of Representatives is a dead heat, with Democrats and Republicans each enjoying 46% support of registered voters. Democrats closed the gap from four previous polls dating from December of last year when Republicans led by an average of just over 3 percentage points among these voters. But Juliet Eilperin wrote in the April 2 Post that nearly half a dozen freshman Republican lawmakers, who might have expected vigorous Democratic challengers, appear poised to cruise to reelection now that redistricting is nearly complete following the 2000 Census. A decade ago, there were roughly 100 competitive races in the 435-seat House following redistricting; this year there will be 30 to 40, perhaps even fewer, which means Democrats would have to win a dauntingly high percentage to achieve their goal. Then again, few observers expected the Republicans to take over Congress in 1994.
PENTAGON WANTS FOREIGN AID ROLE. The Pentagon is seeking broad congressional authority to spend tens of millions of dollars on military assistance to foreign countries, setting up a foreign aid program parallel with the State Department to fight the ongoing "war on terror." The Washington Post reported April 8 that the proposal, which would initially involve $130 million in fiscal 2002, is buried in a Pentagon request for $14 billion in supplemental spending sent to Congress last month. Critics say the Pentagon spending authority would not be subject to existing limits on the State Department's foreign assistance programs, including provisions relating to violations of human rights, sponsorship of terrorism and nonpayment of debt. Where the money is spent would come solely at the discretion of the defense secretary.
WEALHTY SKATE AS IRS TARGETS WAGE EARNERS. The wealthiest Americans find it much easier to cheat on their income taxes than wage earners, whose taxes are deducted on their paychecks, David Cay Johnson of the New York Times noted April 7. But while Congress orders a crackdown on tax cheating by the working poor, it is appropriating little money to detect abuses by the wealthiest Americans, whose money comes from their own businesses, investments, partnerships and trusts.
As much as 20% of income from partnerships is not reported on individual tax returns, said Charles O. Rossotti, the former computer industry executive who has been commissioner of internal revenue for nearly five years. If that revenue, estimated as much as $64 billion, were collected, Johnson wrote, "it would be enough to exempt from income taxes the 62.5 million taxpayers -- half of all those who file -- who made less than $508 a week. And there would still be $29 billion left." Tens of billions more are lost through other forms of cheating, such as secreting money in tax havens like the Bahamas, Johnson wrote. Jack Blum, a money-laundering expert and IRS consultant, has estimated that offshore accounts alone cheat the government of at least $70 billion annually.
Johnson wrote that the chance of being audited if one applied for the special Earned Income Tax Credit for the working poor was 1 in 47 last year. But the chance was much less for high-income taxpayers -- 1 in 145 for people earning more than $100,000. It was even less for a business arrangement favored by lawyers, doctors and other professionals, called an S-Corporation: 1 in 233. And the chance of an audit was less still for partnerships: 1 in 400. And people with tiny businesses with revenue of less than $25,000 are more than twice as likely to be audited as those whose businesses have revenue of $100,000 or more.
BUSH PUSHES FAST TRACK. After imposing tariffs on imported steel under pressure from domestic steelmakers and steelworkers, which culminated in a rally of 30,000 at the White House March 7, George W. Bush hopes to re-establish his free-trade credentials by calling on the Senate to pass the fast track bill by April 22. Fast track authority would allow the administration to negotiate trade deals that could not be changed -- only approved or rejected -- by Congress.
While Bush wants the Senate to approve the bill that passed the House by one vote in December, Senate Ds say they will insist that the fast-track bill be coupled with a plan to help workers whose jobs are exported because of global trade. The Senate version, worked out by Finance Committee Chair Max Baucus, D-Mont., and senior Republican Charles Grassley of Iowa, has assurances that trading partners do not weaken labor or environmental standards. It also gives Congress a larger advisory role in the negotiating process.
Any legislation that clears the Senate must still be reconciled with the House. And, AP noted, textile-state lawmakers there who were arm-twisted into voting for the bill when it passed 215-214 in December have since seen the Bush administration agree to let Pakistan export more clothing to the US as a reward for its help in rounding up terrorists.
Bush has been aggressively wooing several key unions in hopes of splitting apart organized labor, Mike Allen reported in the March 31 Post. The divide-and-conquer strategy is aimed mainly at "hard-hat" unions, especially the 1.4-million-strong Teamsters and the United Brotherhood of Carpenters, which recently split from the AFL-CIO. In 2000, Bush won 27% of the union vote, but he took 44% of white union voters. Bush strategists have calculated that if he could increase his share of white union members' votes to 50% in 2004, he could pick up Iowa, Minnesota and Wisconsin, all of which went Democratic last time. The steel tariffs also are designed to help in Pennsylvania, Ohio and West Virginia. Bush political aides also meet regularly with the heads of the ironworkers, seafarers, bricklayers and laborers.
'CLEAN ELECTION' FUNDING ORDERED. The Massachusetts Supreme Judicial Court on April 5 ordered the state to sell assets, if necessary, to fund a "Clean Elections" program. Voters in 1998 approved the program to finance the campaigns of qualifying candidates who agree to limit their fundraising and spending. The Legislature set aside $23 million but never formally appropriated it as lawmakers apparently feared opening up the elections process. Courts already have ruled that three candidates -- Democratic governor candidate Warren Tolman and two candidates for House seats -- are entitled to state money. Tolman's check for about $582,000 tapped out a state account used to pay legal judgments. He is owed another $230,000 for the primary election, and the House candidates are each owed $8,100. Green governor candidate Jill Stein is among other candidates to qualify by collecting 6,000 small contributions. Maine is heading into its second election with Clean Elections funding. One-third of the state's legislators took office on Dec. 6, 2000 without ties to special-interest money, according to Public Campaign (publicampaign.org). In races that pitted Clean Elections candidates against privately funded opponents, Clean Elections candidates won 53% of the time. Overall, private campaign spending in Maine was cut in half. Jonathan Carter, Green candidate for governor of Maine, has collected 2,000 signatures from voters registered in the Green Party. He must now collect 2,500 $5 contributions from individual registered voters in the state in order to qualify for public financing. Arizona and Vermont also have adopted Clean Elections plans.
STOCKYARDS CHIEF DISAPPOINTS. Appointment of Donna Reifschneider as the new administrator of USDA's Grain Inspection, Packers & Stockyards Administration (GIPSA), which regulates the trade practices of the meat packing industry, disappointed a group seeking more enforcement of antitrust laws. The Organization for Competitive Markets noted that Reifschneider is described as a hog producer from Illinois who served as president of the National Pork Producer's Council (NPPC) in 1999 and more recently on the board of the Meat Export Federation, but she apparently has never called for an investigation of the industry under the Packers & Stockyards Act despite presiding over the NPPC during the winter of 1998 when pork prices (adjusted for inflation) were the lowest in history. In 1998 and 1999, the low prices caused a tremendous number of producers to exit the industry. "There is little hope that she will rally to the side of the independent producer, rather than the meat packers, as head of GIPSA. I hope I am wrong," said Michael Stumo, OCM general counsel.
WAR TIMES LAUNCHED. A newspaper aiming to provide news of the ongoing war on terrorism was to be launched in April 12. War Times, to be produced bi-weekly in San Francisco, will be published in English and Spanish and will be distributed throughout the US. See www.war-times.org or phone 510-869-5156.
TANGLED WEBS. The three most Internet savvy cities in the US are San Francisco, San Jose, Calif., and Austin, Texas, Yahoo! Internet Life magazine reported in its May edition. The least wired of 86 metropolitan areas were Tulsa, Okla.; Scranton, Pa.; and Gary, Ind.
To most people, it must seem like a no-brainer: Which is better, an independent bookstore or a chain bookstore? Whichever one has the book you want at the lowest price, natch. And let's face facts -- lately, the winner of that contest has been the chains.
However a surprising recent survey says that regardless of price, people actually feel they're more apt to be satisfied shopping at an independent. Meanwhile, the rabble-rousing plaintiff in an incendiary court case claims the chains' low prices are illusionary, achieved by illegal strong-arm tactics, and may actually be insuring higher prices down the line.
First, the survey, which was conducted by Consumer Reports in January -- it found that most people felt the chains or the equally giant on-line booksellers did indeed offer a better deal price-wise. Nonetheless, independent bookstores generated a higher level of customer satisfaction than even the cheapest chain retailer. In fact, independents scored "on a par with the highest-rated stores from any survey we've done in recent years," said the magazine.
What's more, Consumer Reports also noted the illusionary quality of the chains vaunted discounting -- chains, it said, had "quietly hiked prices by reducing discounts."
Of course, if buying books were the same as buying widgets -- an experience where price was all that mattered -- then in the comparison of independents to chains there would be no need to consider anything beyond those disappearing discounts.
But buying books is not the same thing as buying widgets, and as the survey's findings about "customer satisfaction" seem to indicate, there is indeed more to consider.
Which is what the aforementioned legal case -- being heard right now before a Federal District Court in New York City -- stresses vehemently, and in such a way as to make it seem that what's going on now in book retailing is microcosmic of what's going on in the greater society.
You probably haven't heard about it, though (which is microcosmic of mainstream media coverage of conglomerate America, but that's another column -- although I must point out the irony that the plaintiff in the case is the brother of the late CBS newsman Charles Kuralt). But anyway, in brief: Walter Kuralt, owner of a bankrupt mini-chain called Intimate Bookshops, is suing Borders and Barnes & Noble for illegal activities -- such as demanding secret discounts from publishers -- that gave them an unfair advantage in the marketplace.
Sound familiar? Well, it didn't get much coverage either, but in another case last year, the American Booksellers Association and 26 independent bookstores sued the chains for the same thing. But that suit -- years in the making -- ground to a halt when the judge ruled the independents couldn't collect damages even if they proved their case, because it was impossible to determine the dollar value of any harm done. Already outspent and with a doubtless lengthy appeals process before them, the independents settled for enough to cover their legal fees and claimed moral victory.
But the decision, or lack thereof, begged not only the actual question -- do the chains engage in illegal practices? -- it rendered unanswerable still larger questions that get at the heart of life in contemporary democracy. To wit, is it wrong for the chains, victors in the marketplace after all, to throw their weight around like that? Isn't that -- as the judge observed at one point -- "what capitalism is all about"? Or is it about competition and choice driving commerce? In essence: Is bigger better?
Well, the Intimate case provides a second chance for answers. Walter Kuralt doesn't seem about to settle, and as a Publishers Weekly report observed, "when it comes to juicy allegations," his case "takes second place to no one."
In a memorandum filed to counter the chains' request for a dismissal, attorney Carl Person outlined Kuralt's charges that the chains strong-armed publishers into providing a 60% discount off the cover price -- as compared to the 40% to 46% discounts smaller booksellers like Intimate were limited to. (Remember those figures the next time you hear B&N head Leonard Riggio complaining -- as he did last fall, and did again this week -- that publishers are to blame for prices so high he calls them "abominations." Considering that publishers share what's left with printers, distributors, warehousers and, oh yes, authors, even if B&N is getting only a 50% discount, it's making considerably more than those who actually created the book. Who's driving the price?)
Meanwhile, Kuralt set up a website (www.lawmall.com/rpa/rpa_whk1.html) providing an exhaustive list of "discriminatory payments and benefits received by the chains -- and largely not disputed by the chains." The list includes "co-op funds exceeding costs of advertising," "free freight," "free books not offered to others," "special allowances for fixtures," "access to information regarding competitors," and more that he says "permit the chains simply to expand at will and overwhelm any smaller competition."
But Kuralt doesn't stop there. He says the case is part of a "national disaster" resulting from "the Wal-Marts and Mega-Malls." What would happen, he goes on to ask, "if all national chain store companies were required to observe the law"?
If the judge doesn't dismiss the case we may finally get a chance to find out. We might also learn which is truly better for the consumer: chain stores, or independents?
Dennis Loy Johnson writes for MobyLives.com, where this article first appeared.