March 2012 - An Unprimed Pump

by Justice William W. Bedsworth

As a young lawyer, I sometimes made the mistake of envying the savvy of the older guys.1 This was usually prompted by getting my nose bloodied by someone who had been practicing thirty years and knew how to use his experience against me. I longed for the days when I would know where the land mines were and how to lead the opposition into them.

In my naïveté, I imagined a learning process in which you gathered up knowledge in a large ammo can, and then, once it was full, just reached in and pulled it out when you needed to reload. I figured once I had a full inventory of ammunition, I’d be able to dish it out at the same level at which I was presently taking it.

But it turns out you reach a point where the ammo can is replaced by a sieve. And not only does much of your ammo leak away, you need new and different kinds of ammo because they keep changing the weaponry on you.

I can deal with the legal changes. New issues, new statutes, new technology—they all complicate the job. Every generation of judge faces those problems, and we all learn to pedal a little faster to keep up. There’s a webinar next week about the Criminal Justice Realignment Act, and I’ve signed up for a day-long seminar on family law, an area which seems to generate new problems almost hourly. I’m working to build up my pedaling muscles both literally and figuratively.2

But the aging process itself requires me to jam new stuff into my ammo sieve every day. That stuff’s harder to keep up with than grandchildren. And it clutters up the sieve; makes it harder to find stuff.

I, for example, have had to make myself an expert on—or at least an aficionado of—arthritis. Much of my youth was misspent as a catcher. A succession of baseball coaches correctly identified me as their most expendable player and assigned me to wear the mask, shin guards, and chest protector sometimes referred to as “the tools of ignorance,” (a term I had thought clever and quaint, but now recognize as merely an accurate observation).

Catching, it turns out, is slightly worse for your knees than hiring railroad workers to beat on them with a twelve-pound hammer. Even if you’re nimble enough to avoid huge baserunners charging to the plate3, the basic wear-and-tear of the position turns orthopedists from boat-owners into private-plane-flyers.

So part of my sieve has to be filled with information about Diclofenac and Voltaren and compartmental knee replacement and all kinds of ammo I had no intention of carrying around when I was envying those older lawyers.

And I’m not even going to start the one-hour lecture I could now deliver on the prostate gland4, or my encyclopedic knowledge of the bones of the foot, or any of the other petty indignities of the aging process that now rattle around in my ammo sieve. Suffice it to say I have difficulty understanding how it can keep leaking and still get heavier.

And now I realize I will soon have to learn about Medicare—which, based on my first encounters with it, is a Sanskrit translation of three lost Gospels originally recorded in Etruscan and codified by Axl Rose. I tried to help my dad figure out the prescription drug part of this bureaucratic Grendl a few years back. I developed three ulcers and ran screaming from the room in less than an hour.

Perhaps the obsidian impenetrability of the Medicare act explains why we spent 240 million dollars in the last decade buying penis pumps for men my age.

Yep, that’s what it says. A quarter of a billion dollars for penis pumps. For old men.

I was of two minds when I read that number. Part of me said, “I sure hope that’s right because if it is, it’s a column.” Part of me said, “I sure hope that’s wrong, because I’m paying those taxes.” Part of me just kept shaking its head and saying, “Penis pumps? Really? It’s come to that?”

Don’t get me wrong. I love sex. My three children will doubtless be disturbed by the information that they were not the only three times I did it.5

I can fully understand the desire of other members of my gender to attend to this . . . urge.

But 240 million dollars? Really? I apologize for what will doubtless seem insensitive to some, but that number calls to mind Jeremy Bentham’s phrase “nonsense on stilts.”

Horndog that I am, I still find myself sympathetic to the position of Benjamin Domenech, managing editor of Health Care News, who considers this a “questionable medical need.” As John Nothdurft, director of government relations for The Heartland Institute puts it, “At a time when the federal government borrows 43 cents of every dollar it spends, do we really need to be spending money on this?”6

I’ll leave the serious analysis of this expenditure to people who actually have some clue what goes on in Medicare.7 There must be a reason a program that will not pay for eyeglasses or hearing aids will pay for penis pumps.

Yeah, think about that for a minute. Medicare will turn you loose in your automobile when you can’t read the numbers on the speedometer or hear a siren. They are apparently unmoved by the prospect you will steer your Buick—blinker frantically signaling a left turn for the last 12 miles because you can’t hear it—blindly into a playground you mistook for a parking lot. But the prospect of your being unable to fully enjoy the Playboy Channel has them shelling out 240,000,000 smackdolians.

Call me crazy, but I consider allowing citizens to see and hear a more legitimate government function than making sure they can recreate.8

Now before you start that angry email about your father or your neighbor or your cousin Jack, let me hasten to assure you I am prepared to spend tax dollars on penis pumps. I have little doubt there are circumstances in which this is a valid expense.9

But a quarter of a billion dollars? Are we having these things handmade by Laguna Beach artisans?

I mean, how many of them are we buying? The United States Census Bureau estimates there are about 17 million Medicare age men in the country. Even allowing for the unfortunate fact there’s a lot of turnover in this group, and further allowing for the fact penis pumps are not easily recyclable, so every time one of these men puts in a request, we need a new pump, 240 million seems like a lot of money for this line of the budget.

And it turns out it is. Turns out at least some of that money goes to fraud. Last year an Illinois man pled guilty to buying $26 items on an adult website, repackaging them, and selling them to Medicare penis pump recipients. He billed the government $284 for each of them. Managed to pocket about two million dollars.

So now my ammo can contains the fact Medicare pays for penis pumps. It contains the fact taxpayers spend about $25 million dollars a year to purchase them for men over the age of 65. It contains the fact there are people in the world who would market fraudulent penis pumps to their country and their fellow man. And it contains the fact there are millions of dollars to be made pumping fraudulent penis pumps.

To make room for that information, I have had to jettison The Rule in Shelley’s Case, my understanding of Sections 11116-47000 of the Food and Agriculture Code, the names of three members of the Sixth District Court of Appeal, and the place I left my car keys.

Today’s practice tips, therefore, are for young lawyers:

1. It does not get easier.
2. Buy lightweight ammo cans; they can get pretty heavy by the time you’re done with them.

Beds Notes

  1. And in those days, they were guys. While my first two supervisors were women (Oretta Sears and Alicemarie Stotler), they were pretty much the only women lawyers I encountered then.
  2. I’ve installed an exercise bike in chambers.
  3. “Nimble” has, unfortunately, never been a part of my repertoire.
  4. I have suggested to the Presiding Justice that what we need more than another judge is a court urologist.
  5. Probably as much as you’re disturbed by the glut of information in that paragraph.
  6. I should point out that the Health Care News is published by the Heartland Institute. Both of these organizations consider anything left of state-provided roads to be rampant socialism, but in this case I think they may have a point.
  7. And however vague that clue might be, it will be several orders of magnitude greater than my own understanding of the topic.
  8. And for most men my age, the issue is recreating, not procreating.
  9. Although I’d feel a whole lot better if the folks who needed glasses and hearing aids were in line ahead of the penis pump people.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at  william.bedsworth@jud.ca.gov.