The Human Race & Other Sports

The Art of Adultery

When dalliance was in flower and maidens lost their heads.
— A 1957 release of bawdy English ballads sung by Ed McCurdy

It is time to review the rules for confessions of infidelity by public figures. They do not address toilet stall tap dancing since that, being a solo performance, raises different issues from the dalliances here addressed. These involve married couples. A number of matters of etiquette present themselves and the ones we examine are: attendance at the required press conference (who does and does not attend), tears (presence or absence) and apologies.

The proper place for the wife during the public confession of infidelity is first. In the John Ensign and Mark Sanford press conferences the wives were absent. In the Eliot Spitzer and David Vitter press conferences the wives were present although a study in contrasts. Mr. Spitzer’s wife assumed a stoical stance standing by her husband’s side although reports said Ms. Spitzer’s jaws were so firmly clenched that she could have bitten through a bar of steel. Mr. Vitter’s wife stood beside him but that came as something of a surprise since she had once said, about the possibility of her husband’s infidelity,: “I’m a lot more like Lorena Bobbitt than Hillary. If he does something like that, I’m walking away with one thing, and it’s not alimony, trust me.” John Edwards had an interview on ABC News without his wife and then issued a statement.

The next question: tears. The score is four to one against. Governor Sanford of South Carolina was the one. That may be explained because of his deep religious feelings and his understandable self loathing. He feels so strongly about the importance of family values that when voting for the impeachment of Bill Clinton he piously proclaimed that: “If you had a chairman or president in the business world facing these allegations, he’d be gone. . . .I think what he did in this matter was reprehensible. . . .” He didn’t just shed a tear or two. He reportedly choked up repeatedly during the press conference. That was consistent with his activities earlier in the week that he described as being spent with his mistress in Argentina crying (presumably, though unspoken, among other activities.)

All the men were appropriately contrite. They knew that in addressing their transgressions their apologies had to be heartfelt and all encompassing. David Vitter set the tone by announcing that God and his wife had already forgiven him (she by eschewing emasculation) and said the discussions would be limited to those two. He concluded, however, saying: I certainly offer my deep and sincere apologies to all I have disappointed and let down in any way.” Eliot Spitzer said that: ”I apologize first, and most importantly, to my family. I apologize to the public, whom I promised better.” John Edwards, lamenting the paucity of the English language, said: “It is inadequate to say to the people who believed in me that I am sorry, as it is inadequate to say to the people who love me that I am sorry.” Senator Ensign said: “I know that I have deeply hurt and disappointed my wife Darlene, my children, my family, friends, my staff, and all those who believed in me. And to all of them, especially my wife, I’m truly sorry.” Senator Sanford said: “I hurt you all. I hurt my wife. I hurt my boys. And all I can say is I apologize.”

It is surely a coincidence that the Europeans choose moments when we are in a dither over the private sex lives of public figures to show us that groveling because of sexual peccadilloes is unnecessary in truly civilized societies. The reaction to disclosure of the fact that Mr. Spitzer found pleasure in prostitutes seemed foolish when compared with the equanimity with which the French greeted the goings on of Nicholas Sarkozy, his then wife and their respective lovers and his then political opponent, Ségolène Royal and her long time partner, François Holland. There was no groveling. And now, courtesy of the Italians, the contrast is again stark.

The wife of Italy’s Silvio Berlusconi has announced her intention to divorce him, in no small part because of pictures of him cavorting with young girls at his assorted mansions. Mr. Berlusconi’s equanimity is undisturbed. He maintains that his cavorting is perfectly harmless. When three women, not quite so young, came forward saying they were paid to attend parties at his official residence and were given jewelry Mr. Berlusconi was asked if he had ever paid a woman “so she would be with him.” Responding as one might exact from a man of his temperament he said: “Naturally, no. I have never understood what satisfaction there is if not in the pleasure of conquest. There is nothing in my private life for which I should apologize.”

The French and Italians know how what importance to place upon adultery in their national dialogue. We should be so civilized. Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

White House Visitors-A Secret

Secrecy and a free, democratic government don’t mix.
—Harry S. Truman, Merle Miller, Plain Speaking

At first one seeks comfort in the fact that in the Obama administration it’s good people who are visiting the White House and in the Bush administration it was the other kind. The comfort is brief.

Those with long memories will recall the endless fights over the White House Logs during the 8 years of the Bush presidency. Mr. Bush did not want people to know who visited the White House because it was none of the people’s business. Mr. Bush’s henchman, Dick Cheney also took the position that it was none of the people’s business to know who visited his residence or office. (Not only did Mr. Cheney not want people to know who visited him, he did not want people to know what people were involved in formulating the energy policy that was promulgated early in the Bush administration. The Supreme Court agreed that the people were not entitled to know who participated in making the energy policy and that information remained secret until 2007 when much of it was disclosed by the Washington Post.)

In 2006 the Citizens for Responsibility and Ethics in Washington (CREW) brought suit in order to find out how often conservative religious leaders had been visitors in the White House and the vice-president’s residence. Judge Roy Lamberth had the opportunity to rule on the administration’s claims on two different occasions. The first was in 2006 when Judge Lamberth concluded that since the records were kept by the Secret Service rather than the White House, the plaintiffs were entitled to get them under the Freedom of Information Act. He further observed that letting the public know who the visitors were would not “disclose presidential communications or shine a light on the president’s or vice president’s policy deliberations.” The judge also said that the White House did not avoid the results of his ruling when, after the suit was brought, it entered into an agreement with the Secret Service that after the records were created they would be turned over to the White House and labeled “presidential documents. When the case was appealed and sent back to him for further proceedings he again ruled that the logs were subject to the open records rules.

Dick Cheney enjoyed being shrouded in mystery. He did not want anyone to know who visited the vice-presidential mansion. When the Washington Post sued to find out who had visited the vice-president’s residence and office, the administration took the same position it took in the CREW suit. Like Judge Lamberth, U.S. District Court Judge Ricardo M. Urbina was unimpressed. He said records of who visited Dick Cheney were controlled by the Secret Service and, therefore, releasable under the Freedom of Information Act (FOIA). He rejected the assertion that those logs were presidential records and not subject to the FOIA. The government obtained an order temporarily blocking the release of the records. (Before an appeal could be heard the Washington Post that had brought the suit, withdrew the suit.)

In contrast to the Bush position, the Clinton administration never attempted to assert executive privilege over the logs even though such an assertion would have served Mr. Clinton well since the logs showed when Monica Lewinsky visited the White House, a useful bit of information when Republicans were impeaching President Clinton. They also showed when Denise Rich, the wife of Marc Rich who was pardoned in the last hours of the Clinton administration visited the White House.

Even though two Federal District Court judges have ruled during the Bush years that the visitor logs are not presidential records but Secret Service agency records that are subject to the Freedom of Information Act, the Obama administration has adopted the Bush position and refused to release them. Once again, CREW has sprung into action. It has sued to find out which top executives of the coal industry have met with White House officials in order to influence the administration’s energy policy.

While still a Senator and not yet a full fledged candidate Mr. Obama said: “We have to find more environmentally sound ways of mining coal than simply blowing the tops off mountains.” Now he is president. The EPA has just approved 42 of 48 pending applications including some that involve mountain top removal. That is the process by which the tops of mountains are blown off, the coal extracted and the residue shoved into valleys and streams below the former mountains. Mr. Obama’s critics would like to know which coal company executives have visited the White House and what their influence may have been. It sounds sadly similar to the questions that were asked but not answered when Dick Cheney’s energy policy was being developed. One hopes the similarity is illusory. But this example (and a number of others described by the New York Times’s Bob Herbert) leads one reluctantly but inexorably to the sense that it’s déjà vu all over again. Christopher Brauchli can be e-mailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

The Rise and Fall of the Cigarette

This very night I am going to leave off tobacco! Surely there must be some other world in which this unconquerable purpose shall be realized.
— Charles Lamb, Letter to Thomas Manning

It was a tough week for the cigarette and all but the most heartless would fail to feel the pain that has now been inflicted upon it. And in feeling their pain they’d be joined by Majority Leader Senator Mitch McConnell of Kentucky and three of his colleagues who have received huge campaign contributions from the cigarettes’ makers.

Mr. McConnell has received more than $400,000. North Carolina’s Richard Burr, who bravely led opponents of the recently passed tobacco legislation into battle, has received $359,100 and two other members of the opposition were recipients of over $100,000 from the tobacco industry and friends. None of them was, of course, influenced to protect the cigarette because of the gifts. But I digress. This column is about the poor cigarette and briefly traces its fall from glory. Although not yet the recipient of the death sentence it has handed out to so many of its followers, the cigarette has been dealt a mighty blow.

Under legislation just passed by Congress and sent to the president, the care and feeding of the cigarette has been turned over to the probably unfriendly Food and Drug Administration. How far the poor cigarette has fallen in only 24 years! 1985 seems like yesterday. Here’s what led up to that year.

On November 11, 1981, Walter Jacobson, a commentator for WBBM-TV in Chicago broadcast a report about Brown & Williamson Tobacco Corporation. In his extensive report he said that B&W had developed an advertising campaign to lure the young into smoking by depicting smoking as “A declaration of independence and striving for Self-identity” Mr. Jacobson said B&W’s aim was to “present the cigarette as an illicit pleasure. . . A basic symbol of the growing-up, maturing process.” B&W sued for slander and a jury, outraged at the suggestion an esteemed corporation would do anything as despicable as Mr. Jacobson had reported, awarded B&W a cool $5.05 million.

In 1988 Philip Morris decided it had taken enough from the anti-cigarette crowd. It ran an ad campaign to show that friends of the cigarette were a group to be contended with. In an ad using big black letters of the sort used to herald the end of world War II, it said: “$1 trillion is too much financial power to ignore.” (In 1985 a trillion dollars was a lot of money.) Smokers are, said the ad, one of the most economically powerful groups in the U.S. and help fuel the engine of the largest economy on the globe. Commenting on the ad campaign, Guy L. Smith 4th, then the vice-president for corporate affairs, said “Let the politicians take note. You’re not just talking special-interest group. You’re talking swing vote.”

Other P-M ads were more playful. An ad that followed the banning of smoking inside airplanes, shows a smoker sitting on the wing of an airplane contentedly smoking. Another portrayed a smoker sitting on a desk outside the 8th floor of an office building that had banned smoking happily puffing away. According to James Morgan, senior vice president of marketing for Philip Morris, “the ads establish a connection with the consumers that is warm, humorous and whimsical.” That plus “deadly” is the perfect description of the relationship many of us had with the cigarette. Today that has changed.

As soon as the president signs the Bill, the cigarette will be placed under the FDA’s jurisdiction. The FDA will have the power to regulate the cigarette’s content. Colorful ads and store displays will be replaced by sober black and white only text. The cigarette will not be permitted to brag within 1,000 feet of schools and playgrounds. In recent years the cigarette has improved itself by adding variety of flavors such as Mandarin Mint, Mocha Taboo, Margarita Mixer and the like in order to appeal to the younger set that while seeking sophistication through smoking nonetheless continue to enjoy flavors of that remind them of the halcyon days of their youth.

The cigarette may be discouraged but does not yet have to concede defeat. Already groups are lining up to attack the new law on the ground that it impinges on the cigarette’s free speech rights. Daniel Jaffe, executive vice president of the Association of National Advertisers and a friend of the First Amendment as well as the cigarette said: “Anybody looking at this in a fair way would say the effort here is not just to protect kids, which is a substantial interest of the country, but to make it virtually impossible to communicate with anybody. We think this creates very serious problems for the First Amendment.” I’ve good news for Mr. Jaffe. The First Amendment will overcome its problems. The cigarette and its friends will almost certainly figure out ways to continue to communicate with young smokers. They always have.

The Judge and the Urinator

The wicked are wicked no doubt, and they go astray and they fall. . .but who can tell the mischief which the very virtuous do?
— William Makepeace Thackeray, The Newcomes

Two federal employees have been in the news recently. One is a federal Judge-the other is an IRS employee. The conduct of both was inspired by the same anatomical device. The judge was convicted of obstructing a judicial panel’s investigation of charges he sexually assaulted two female employees. The IRS employee used the freight elevator as a urinal and has not yet been sentenced. Both did what they did because they thought they could get away with it. The urinator may be terminated. The harasser will resign at leisure.

Judge Samuel B. Kent of the Federal District Court in Galveston, Texas, pleaded guilty in February to an obstruction of justice charge. The plea was entered on the same day he was to be tried for 3 counts of abusive sexual contact and two counts of aggravated sexual assault. His victims were court employees in the courthouse in which he ruled. According to reports the judge was attempting to bestow his judicial sexual favors on female courthouse employees who found his attention offensive instead of flattering. He was sentenced to 33 months in prison.

Judge Kent is probably surprised to be going to prison. When the allegations against him first surfaced in 2007, the 5th Circuit Judicial Council treated the charges as sexual harassment and conducted an in-house investigation. At its conclusion the judge was privately but severely punished. He was not allowed to work for four months. He was permitted to retain his salary and all benefits. The Judicial Council didn’t tell anyone why he’d been suspended. They were helping to protect his reputation so he could go back to work with it unsullied. The Council was probably surprised to find that what it thought suitable for private discipline was considered an indictable offense by a grand jury sitting in the Southern District of Texas. The ordinary citizens had better sense than the judicial council.

Following entry of his plea of guilty, Judge Roger Vinson, who presided over Judge Kent’s trial, not only sentenced him to 33 months in prison but also ordered him to pay a fine of $1000. The fine seems low but Judge Vinson observed that as a result of the conviction Judge Kent would soon not be drawing a salary. Judge Vinson may be a good judge of the law but at least in this case, he showed himself to be a poor judge of character. Disgraced, but not humiliated, Judge Kent has let it be known he has no intention of soon relinquishing his salary or other benefits. The only way he loses his benefits is if Congress impeaches him. That would probably take about a year. With that in mind Judge Kent let it be known that he would resign as a federal judge approximately a year after he entered prison.

As was observed at the outset, Judge Kent was not the only federal employee to make news in May. The other was Michael Hicks. Michael is a contract employee with the Internal Revenue Service in Detroit. Michael did not sexually harass any of his co-workers in the IRS office. He pee’d. That, in itself, did not distinguish him from any of the other employees in that office. It was his venue-selection that brought him to the attention of co-workers and resulted in criminal charges being filed against him last month.

For many months employees at the Internal Revenue Service data center noticed that the freight elevator emanated a peculiar smell that grew more pungent with the passage of time. Unable to determine the cause of the odor the Service installed a surveillance camera in the elevator and discovered that the cause of the odor was Michael Hicks. Confronted with the evidence Mr. Hicks confessed. It turned out that rather than retiring to the public toilets when the occasion presented itself, he retired to the freight elevators to the same end.

One of Judge Kent’s accusers said that during one of his attacks on her he said he didn’t care if the U.S. Marshal’s office overheard the encounter because “everyone was afraid of him.” He told her if he had 15 minutes with a jury he’d be exonerated. He didn’t get his 15 minutes. He does get his salary and other benefits. It is not yet known what Mr. Hicks will get. When asked why he engaged in what most would unhesitatingly describe as bizarre behavior, he told Delmaria Scott, who confronted him, that he did it because “he felt he could get away with it.” In that respect he was like the federal judge. Here’s hoping he gets to keep his job and his salary at least as long as Judge Kent. Maybe even longer. Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

The Nominee and the Attack Dogs

For slander lives upon succession,
Forever housed where it gets possession.
— Shakespeare, The Comedy of Errors

The worst thing about disclosure of the name of the new Supreme Court nominee was not that the weeks of speculation had come to an end. It was that the public would no longer be treated to the fascinating biographies of every man, woman and child who MIGHT have been nominated by President Obama. These were biographies that, but for the vacancy on the Court, would never have seen the light of day, and the public would forever have been deprived of all the fascinating details about what in many cases were unfascinating lives that the vacancy permitted us to share. Those biographical sketches have now been replaced by bits of trivia about the actual nominee that are at least as fascinating as the biographies of the might-have-beens.

For the first piece of trivia we are indebted to Nicholas Confessore of the New York Times. Mr. Confessore discovered that Judge Sonia Sotomayor “did not cast a ballot in the 2002 election . . . . Nor did she vote in the 2006 elections, which gave Democrats control of the United States Senate.” Her disregard of her civic duty was also evident in the elections of 1999 and 2007. That news suggests (although not stated in the story nor picked up by Rush Limbaugh or Newt Gingrich) that she is not a fan of our form of government. How else to explain her inaction? There is, however, a happy ending to this particular story. She voted in 2008. Since that is the most recent election to have occurred one can hope that this represents her determination to turn over a new leaf and participate in the democratic process. Her failure to vote in other elections should be explored in some depth at her confirmation hearings.

Another observation that has received much attention is that if Judge Sotomayor is confirmed, she will join 5 other Roman Catholics on the Supreme Court thus giving Pope Benedict a significant voice in how the law develops. Although the Pope’s influence is a very real threat, the reassuring news is that she is at most a Casual Catholic. The Washington Post reports that a White House spokesman said, in response to Catholic conscious bloggers’ concerns, that: “Judge Sotomayor . . . attends church for family celebrations and other important events.” That demonstrates a lack of zeal that should comfort critics.

Yet another concern is Judge Sotomayor’s involvement with the Puerto Rican Legal Defense and Education Fund. After she finished law school, then lawyer Sotomayor became a member of the Board of Directors of the Puerto Rican Legal Defense and Education Fund. During her tenure, according to the New York Times, “she played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.” Curt Levey, executive director of Committee for Justice wonders whether as a Justice the judge will know the difference between being a judge and serving on a board. That is probably the same thing he wondered when Sam Alito was nominated.

Judge Alito was a member of the Federalist Society. The Society didn’t go around suing people. It just tried to put its members into Federal judgeships. In an article in the Washington Monthly in March 2000, Jerry Landay, a former correspondent for ABC and CBS news observed that “ The Society’s mission is to advance a conservative agenda by moving the country’s legal establishment to the right and they are succeeding. . . . [T]he Society is accomplishing in the courts what Republicans can’t achieve politically.”

The Puerto Rican Legal Defense Fund could probably not get Justice Antonin Scalia to skip the swearing in of a new Chief Justice of the U.S. Supreme Court so that he could go on a junket with its members, as Justice Scalia did when he skipped Chief Justice Roberts’ swearing-in in order to go to a Colorado resort with members of the Federalist Society.

Whereas Judge Sotomayor discontinued her membership on the board of the Puerto Rican Defense fund upon becoming a judge, Judge Alito continued his membership in the Federalist Society the entire 15-year period during which he sat as a federal judge on the Third Circuit Court of Appeals. He has now resigned. Prior to his appointment to the Court, Chief Justice Roberts said he had no memory of belonging to that organization although he was listed as a member in the 1997-1998 leadership directory of the organization.

It is too late to ask Justice Alito why he didn’t resign sooner or Chief Justice Roberts why he didn’t recall being a member or Justice Scalia why a junket with the Society displaced the common courtesy of being present for the swearing in of the Chief Justice of the court on which he serves. That should not stop senators from in depth questioning of Judge Sotomayor on her membership in the Fund.