Big or Small: It Doesn't Matter at All
A statement appears in the New York Times editorial on March 14, 2007 with respect to the firing of eight U.S. district attorneys, "it was astonishing to hear Mr. Gonzales continue to insist yesterday that he had no personal knowledge of discussions involving the individual attorneys. Senator Charles Schumer, Democrat of New York, was right on the mark when he said that if Mr. Gonzales didn’t know what Mr. Sampson was doing, “he doesn’t have the foggiest idea of what’s going on” at his department." I want to go on record that Mr. Gonzales does know what is going on and in a case that I handled in Texas I was able to use his handiwork while he was functioning as the chief justice of the Texas Supreme Court to attempt to convince his Republican counterparts on that bench (nine strong) of the correctness of my position.
The Texas legislature (Republican) had passed a law that required children who were injured during the first three months of pregnancy by the negligence of an employee of the state to notify the state that they were injured within six months of the date of the injury. Anyone who can count on the fingers of both hands can instantly recognize that this inane requirement had the net effect of imposing the impossible condition of requiring this notice before children damaged in the first trimester of pregnancy were born. The law had already been applied with vigor by this Texas Supreme Court to bar the cases of brain damaged comatose patients who slept through their six months as well as young children who had the misfortune of having loving parents who spent the first six months following catastrophic injuries nurturing, loving and seeing that their children received the follow up medical care required thus letting the six months, a heart beat in times of crisis, slip by without the required notice.
Enter Mr. Gonzales: In preparing for oral argument before the Texas Supreme Court, I found a substantial number of cases in which Mr. Gonzales had written opinions in which he freely gave advice about pro-life, whether or not the advice or statement had anything to do with the underlying case. Such commentaries in written opinions are referred to as 'dicta' by lawyers. It is considered improper to rely on 'dicta' in subsequent cases as precedent, but it may be properly cited to subsequent courts to cause them to reflect on the thinking of previous individual writers of such dicta. An appropriate analogy would be Gonzales' subsequent memo while counsel to the White House to the effect that the principles of the Geneva Convention are quaint. Using his rambling pronouncements freely (and without shame I might add) I was able to convince his brethren and sisthren on the court (my new word for judge Owen, a favorite of Bush) that the law was inane. Two cherished Republican principles, the elimination of lawsuits for the average person and the rights of unborn children, thus collided head-on. The court, to my surprise, agreed with my argument, but they did what any self-respecting group of Republicans following the herd pseudoconservative instinct would do. They threw the case out by deciding an issue not before the court. They ruled that the parents should have followed the new rule they established for unborn children, even before it was law. The father had notified the state clinic who damaged his baby two weeks after the baby was born and was told that the procedure performed on his wife during the first trimester was not known to produce the birth defects suffered by the child. I am writing about this now because the pattern of logic and thought is clear, not only with Gonzales and Bush, but with Republicans as a whole. The damage that these people are doing to the rule of law, in big time and in small time, such as in this case, stinks.