July 5, 2007

Review, Ken Foskett, "Clarence Thomas"

[Review of Judging Thomas: The Life and Times of Clarence Thomas by Ken Foskett (Morrow, 339 pp.). Originally appeared in the New York Post, Dec. 19, 2004]

Thomas' Trials and Triumph

So much for comity between the different branches of government. Speaking on NBC's "Meet the Press" two weeks ago, new Senate Minority Leader Harry Reid coolly insulted Justice Clarence Thomas, calling the 56-year-old African-American jurist "an embarrassment to the Supreme Court" whose "opinions are poorly written."

Who knew Reid, a hitherto little-known Nevada Democrat whose major backers have been casinos and trial lawyers, took such an interest in judges' writing skills?

For years, Thomas has served as a punching bag for lazy commentators. In the 1991 fight over his nomination, liberal interest groups portrayed him as a lecherous incompetent. When he was confirmed anyway, they began banging away on his supposed overdependence on his colleague Antonin Scalia.

Among those who follow the court's work closely, most of these themes are at best passé. Over 13 years, Thomas has laid out a body of conservative-to-libertarian judicial thinking clearly distinct from Scalia's. And many court-watchers who disagree passionately with the content of Thomas' views acknowledge that there's nothing subpar about his written opinions.

Which still leaves the question of character, explored at length in Ken Foskett's new biography, "Judging Thomas."

By now the outlines of Thomas' remarkable life story are well-known: his poor upbringing in Savannah, raised by a super-strict grandfather who drilled him in hard work and obedience; his radical phase at Holy Cross, where he affected Army fatigues "and a black beret festooned with black power buttons"; his arrival at a Yale Law School then supremely confident of its mission to use the law to remake American society; his rejection of that mission and emergence as a conservative strongly opposed to counting by race as a form of governance, and at length his recruitment (via John Danforth's Missouri attorney general office) by a Bush 41 administration that kept tapping him for jobs very different from those for which he would have volunteered, culminating in a seat on the nation's highest court.

At every stage, there were lacerating snubs: from lighter-skinned blacks and snooty boarding-school students amused by his uneducated accent, from the civil-rights establishment, from People for the American Way mudslingers and New Yorker editors.

Where the criticism struck him as fair, Thomas had the strength to take it to heart: Thus, the toughie Yale Law property expert who gave him his worst grade became his favorite professor. After the confirmation ordeal, on the other hand, Thomas spent a couple of years recovering from embitterment, and even now Foskett describes him as "tightly wound," though warmly regarded by his staff.

An investigative reporter for the Atlanta Journal-Constitution, Foskett writes in a relaxed and readable style, and though a few expressions suggest that he does not necessarily agree with Thomas' jurisprudence, the resulting portrait is generally a favorable one.

Thomas' own memoirs are supposedly in the works. In the meantime, this book dramatically depicts the power of will over circumstance.

August 24, 2006

Review of Marcia Angell, Science on Trial

[Originally appeared in National Review, Nov. 11, 1996].

In recent years leading medical researchers have come out with big studies finding -- contrary to what we were told in one of the great scare campaigns of modern times -- no link between silicone-gel breast implants and the rate at which women contract diseases such as scleroderma, rheumatoid arthritis, and lupus. As PBS's Frontline summed up the data, "Women with implants do not have measurably different health from women without implants." Millions of women were badly scared, it seems, for nothing. As Gilda Radner used to say, "Never mind."

In a rational world this news would have been followed first by a huge sigh of relief, then by a round of apologies, and soon thereafter by some quiet retirements from public life. First to apologize would be the trial lawyers who stoked the panic at every stage, recruited tens of thousands of anxious women (1-800-RUPTURE was one hotline), filed lawsuits on their behalf that often shared the same typos, bankrupted formerly healthy Dow Corning, and pocketed millions in contingency fees from the resulting jury awards.

Next in line to offer regrets would be various figures manipulated wittingly or not by the lawyers. Connie Chung, who touched off the big panic in a 1990 CBS news show, would send a producer to accept a Golden Oops statuette. Food and Drug chief Dr. David Kessler would quit after squirming before a congressional committee probing his decision to order the devices banned. Public Citizen, the Ralph Nader operation that sedulously spread the scare, would shamefacedly halt its sale of implant-litigation kits to trial lawyers and disband its clearinghouse for implant law firms; and its spokesman, Dr. Sidney Wolfe, would find his card tossed from many a press Rolodex.

Of course this is America in the 1990s, so none of this happened. The lawyers and Public Citizen simply denied everything; Dr. Kessler dodged; Miss Chung's producers had long since moved on to other projects. Studies or no studies, some juries -- enough to keep the game highly profitable -- go right on awarding damages; one in Nevada awarded $ 14 million.

As executive editor of the nation's leading medical journal, the New England Journal of Medicine, Dr. Marcia Angell published the pioneering Mayo Clinic study finding no link to disease. "Almost immediately," she relates, "I received phone calls from reporters who had spoken with plaintiffs' attorneys eager to discredit the Mayo Clinic, the New England Journal of Medicine, and me personally." Soon the lawyers were aiming punishing subpoenas at her and at Mayo's Dr. Sherine Gabriel.

Bad move. Provoked, Dr. Angell has now written a damning book about the whole implant scandal, on top of the damning journalistic exposes that have been running lately in places like the New York Times, Fortune, Discover, Reason, and the editorial (but not news) side of the Wall Street Journal.

Dr. Angell writes with quiet authority on the medical issues, detailing the lawyers' retreat "bunker by bunker" to claims quite different from those they made at first. She notes that while studies based on health records before the panic indicate zero effect, those drawn from later records are inevitably skewed by the panic itself toward finding the publicized (self-reported) symptoms; lawyers have seized on this effect hoping to keep the debate open. Dr. Angell also disposes of the claim, much bruited about in letters to the editor, that the researchers forgot to check for new patterns of "atypical" auto-immune or connective-tissue illness.

Though Dr. Angell strives for a sober and analytic tone, human drama keeps nosing in. A Texas woman doesn't believe herself ill but says "my family will kill me" if she doesn't file a claim. Dr. Angell blasts "blatantly unethical" members of her own profession who assist the lawyers by running diagnosis mills. One Texas doctor makes $ 2 million a year certifying illness in implant recipients, more than 90 per cent of whom come in as lawyer referrals. A diagnosis in hand "is of great value to your claim," his brochure explains; "the manufacturers (and frankly, jurors) value a woman's case much lower" without one. Other doctors proceed to "unnecessary, costly, and sometimes risky treatments" such as dosing patients with steroids; one woman was put through $ 90,000 of hospitalization and $ 10,000 a month in therapy.

Before the studies came out several manufacturers had agreed to settle for a numbing $ 4 billion, including $ 1 billion in fees for the lawyers. The terms were generous: for example, as Dr. Angell notes, "a woman could claim joint and muscle aches, disturbed sleep, fatigue, and burning pain in the chest, none of which can be objectively verified by her doctor or anyone else, and collect up to $ 700,000." Lawyers surprised even themselves by recruiting hundreds of thousands of women claiming compensable illnesses, and the $ 4-billion deal collapsed as too _low_.

New to the subject of lawsuit reform though she may be, Dr. Angell offers generally excellent proposals, emphasizing rules that would exclude unreliable expert testimony -- "junk science" -- from court proceedings. (Trial lawyers have fought such rules, with help from Harvard's Laurence Tribe and some other academics.) Though silent on loser-pays, she puts her finger on our sore lack of ways to bring lawyers' incentives into line with society's. Other businesses tempted to violate ethical rules, she notes, risk losing customers and getting into trouble with the law. "Plaintiffs' attorneys are not similarly restrained. Their clients gain right along with them, and they are not only acting within the law, but using it as an instrument." Perhaps contingency fees "should be forbidden in this country, as they are elsewhere."

In an arresting passage, Dr. Angell writes of how she views herself as a feminist and "liberal Democrat . . . quick to see the iniquities of large corporations. I disclose my political philosophy here, because it did not serve me well in examining the breast-implant controversy. The facts were simply not as I expected they would be." But "my most fundamental belief is that one should follow the evidence wherever it leads." Whether silicone causes disease "is not ultimately a matter of opinion or legal argument; it is a matter of biological fact."

Capitol Hill bully John Dingell finally ran aground when he began casually defaming the respected liberal scientist David Baltimore. Let's hope this book marks a similar turning point.