Bush's Disconnected Sense of Justice

by Molly Ivins

The recent "Hey, a sleeping lawyer is still a lawyer" decision came from the Fifth U.S. Circuit Court of Appeals on a 2-to-1 decision agreed to by the ever-charming Judge Edith Jones, who was on the short list for the Supreme Court when Bush pere was president and will certainly be so again under Bush fils.

Under Judge Rhesa Hawkins Barksdale and Judge Jones' remarkable legal reasoning, "It is impossible to determine whether ... counsel slept during presentation of crucial exculpatory evidence, or during the introduction of unobjectionable, uncontested evidence." Therefore, they voted to fry the guy.

Actually, the top candidate for Supreme Court under Bush, who is looking for judges like Clarence Thomas and Antonin Scalia, is Judge Emilio Garza, the Clarence Thomas of the Hispanic world (without any known sexual peccadilloes).

Garza recently contributed to the cause of smaller government in a decision on a case now before the U.S. Supreme Court, Atwater vs. City of Lago Vista. A Texas soccer mom was driving her kids, ages 2 and 6, home from a soccer game when she was busted for driving without a seat belt. For this menace to the public order, she was handcuffed, taken downtown, body searched, fingerprinted, mug-shot and put in the hoosegow while Child Protective Services was called to take her kids away. Fortunately, a neighbor came by and took the kids, instead.

Naturally, the state of Texas is arguing that the Constitution gives police the power to arrest for any offense whatsoever, even one carrying a maximum fine of $50, and then to conduct legal body and car searches. Now, given the practice of racial profiling in law enforcement, exactly who do we think is more likely than your average soccer mom to be affected by this lunatic doctrine?

A case that will interest constitutional scholars -- actually, it seems to blow their minds -- is the legal struggle to get Texas to do the minimum for which it is responsible under Medicaid. This is an old, bad story, put most concisely by former Public Health Commissioner Reyn Archer. The reason that Texas goes to great lengths to keep Medicaid secret is because we'd have to raise taxes to pay for it if all the children who are entitled to it were enrolled in it.

In 1996, the state entered into a consent decree promising that it would try to do better at outreach and getting more kids enrolled. And in fairness to the state, it has made some progress and has done some outreach.

Unfortunately, we've still got more than a million poor kids without Medicaid, and the usual horror stories continue: a boy who had to wait eight weeks to see an orthopedic specialist for a broken arm, which required surgery and a pin; another boy treated 17 times for ear infection in 18 months, finally taken to a clinic where they tried three times to clear up the problem -- the kid is still sick and still hasn't seen a specialist.

You know, I don't think George W. Bush is a mean person. I think he probably is a compassionate conservative. There's just some kind of disconnect in his thinking. He does not seem to grasp that policy has consequences like this.

Time and again I've heard him argue that every child in Texas has access to health care because you can take them to the emergency room at the charity hospital. Has he ever been there himself?

On Aug. 14, Judge William Wayne Justice ruled that the state had failed to live up to the decree it signed in 1996, and that more than a million children are still being denied the medical care that the state promised to give them four years ago.

So Attorney General John Cornyn is appealing this ruling on the improbable grounds that it violates the 11th Amendment. Now that would be interesting.

The 11th is the one that can be read to say that the power of the United States doesn't cover a lawsuit brought by Texans against their own state, and therefore the federal court can't enforce the consent decree voluntarily entered into by Texas. And the poor kids are screwed again.