Archive for October, 2010


October 31, 2010


Beating the Rush – Advance Post-Election Analysis

October 29, 2010

I thought I would beat the rush of punditry about next week’s election and do a retrospective about what it all meant – in advance. Given some of the remarkably silly reporting about this election that we’ve been subjected to for months by political writers desperate for attention, a quick glance at American political history is not out-of-place.

Apparently, the nation, on November 2, 2010, gave the economy back to the people who broke it. The same people who spent the last two years obstructing any real attempts to fix it. John Boehner and Mitch McConnell will misread the results and continue resolutely missing their opportunities to go down in history as great legislators.

But, most of the truly crazy people who were running for office were defeated. The Democrat in South Carolina – wasn’t he under indictment for possessing child porn or something? – was trounced by arch-conservative Jim DeMint. The anti-masturbation candidate in Delaware received a well-deserved drubbing. Three wealthy people spent a quarter of a billion dollars of their own money losing. (A quarter of a billion dollars down the tubes. What were they thinking?) The guy up in Alaska who thinks unemployment insurance in unconstitutional, except when his wife receives it, was returned to his private career. The woman in Nevada who thinks parts of the Midwest are governed by Sharia law narrowly lost to Harry Reid, proving once again that citizens in sparsely populated states know that a senior senator in a position of power trumps a junior minority senator every time when it comes to bringing home the bacon.

Robert M. La Follette

Speaking of the Midwest, a few seats in Congress from that region went to moderate Republicans, a species about which we read many obituaries earlier in the year.

And why did everyone forget about Iraq and Afghanistan?

Of course, a few incompetents won and competent Democrat Jerry Brown of California proved that he is crazy by winning the Governor’s office. Who, in their right mind, would want that job? Although he can get stoned legally now.

So, in this off-year election, the minority party this year, the Republicans – picked up seats in Congress. And, because the economy is not yet back to a full-throated roar, they picked up a few more than they would have otherwise. They will lose some in 2012 and pick up some in 2014, the year that President Obama turns to foreign affairs almost all the time due to his waning domestic political power, something that always happens to two-term presidents.

In other words, nothing much happened in the elections of 2010. America proved again how conservative and stable her democracy is.

Now, if we could just get our political chatterers in the media to pick up a book of American political history, that would be a change worthy of note.

Lessons for Young People from Justice Thomas

October 25, 2010

Today was the day to opine about the latest punditry regarding the upcoming election, but Clarence Thomas keeps getting in the way. I wrote last week about the latest Thomas kerfuffle, his wife’s latest ill-advised foray into the sexual minefield of his past.

On one level Justice Thomas’s past sexual desires and his career are unimportant. He’s not likely to make any lasting contribution to American history nor is he likely to do any irretrievable damage, he’s too far outside the mainstream of legal history to make much of a long-term impact. Like his brother Scalia, he’s historically irrelevant.

But Thomas’s sexual career highlights two social and cultural trends at work in American life. First is the easy availability of free porn, right at your desk. When Thomas started out, if a man wanted to watch Long Dong Silver films he had to suffer the indignity of sneaking into a grungy movie theatre and sitting in the dark with other men, some of whom probably were making strange noises. A prominent man, an ambitious man, had to take some career risks to do that. Now, pornography is a computer click away.

And, if he doesn’t know what web site to turn to, even the New York Times has articles that will tell him.

On those web sites he will find a pornucopia of young people pounding away. He can watch hours, days for free. Apparently pornographers don’t worry much about copyright laws, or at least the aggregators of porn don’t. Perhaps one day a pornographer will sue one of the aggregators for copyright infringement and Justice Thomas can vote to return us to the old days of dirty theaters. Until then we can watch on our computers studly young men pumping away in ten minute film clips, in four or five basic positions, withdrawing for the apparently obligatory ejaculation photo. And we’ll see women pretending – unconvincingly – to enjoy all that friction.

Young friends, if you want to see a female orgasm accurately depicted on film, watch the restaurant scene in “When Harry Met Sally.” It’s much better than anything you’ll see in pornography. Besides, you’ll learn what to order from the menu at Katz’s Delicatessen.

Better yet, read chapter 12 of Lady Chatterly’s Lover. And, while you mustn’t underrate friction’s role in sexual fulfillment, you shouldn’t overlook the importance of eroticism either. There’s a reason that Lady Chatterly and Mellors don’t make love until chapter 10. Sexual tension is better after it has built for a while.

For those of you who have not yet dipped into this new ocean of free modern pornography, don’t bother. Women remain objects of desire; not people with desires, and men are depicted as pistons. It’s all pretty boring.

And don’t use it for masturbation either.

Emmeline Pankhurst

The more important trend that Justice Thomas’s career spans and one to which he contributed inadvertently, concerns women’s rights in the workplace. Those have improved some in the nineteen years since Thomas’s confirmation hearings in the U.S. Senate.

On the day that Anita Hill testified before Congress that Thomas sexually harassed her, I was trying a lawsuit in which a woman who had complained about similar conduct by her male boss had been fired for complaining. Just twenty years ago, employers’ standard response to a woman who dared complain was to fire her. That is much less likely today, although many women who do complain face only slightly more subtle punitive responses. Moreover, most employers, are more likely to take her seriously, in part because they know they are going to get sued if they don’t.

Ironically, the accumulation of evidence that Clarence Thomas, at one point in his life, was a boorish lout who lied his way onto the Supreme Court nudged that process along. And, while women are a long way from truly equal treatment at work or in society, we’re a little further down the road as a result.

Mrs. Justice Thomas and Anita Hill

October 20, 2010

Wisely, it is said, “No man is a hero to his wife.” Judging from the recent news that Justice Thomas’s wife called Anita Hill last week, demanding an apology from Hill for accusing Justice Thomas of sexual harassment, what we should say is, “No man is a hero to a wise wife.”


Out Goes Desdemona's Olympian Fire (Delacroix Painting)


I have noted in this space before that I am convinced to an abiding certainty that Anita Hill told the truth about Thomas and that he lied to get on the Supreme Court. My conclusion is based on a career spent representing the victims of sexual harassment and a private hour I once spent with one of my clients and Professor Hill. I am far from alone in that conclusion. For another analysis of the evidence, see this column.

Based on that conviction, I would have advised Mrs. Thomas to leave it alone. It happened almost two decades ago,  Clarence Thomas has been on the Supreme Court for a long time and Professor Hill has made a successful career for herself. So, it is passing strange that Virginia Thomas would call Professor Hill last week – at 7:30AM – and leave a telephone message suggesting that Professor Hill pray and then apologize to Justice Thomas.

Strange.  And weird.

Literature, that mirror to reality, abounds with examples of wives who overestimated their husbands. Think of Desdemona who trusted Othello far more than she should have. Or Hamlet’s mother Gertrude. She admired husband number 2 far more than was wise. Real life examples spring to mind as well. Two of Henry VIII’s wives, Anne Boleyn and Catherine Howard, literally lost their heads trusting him.


Anne Boleyn


Mrs. Thomas hasn’t asked for my opinion and wouldn’t accept it anyway, but her husband’s sexual history might be a sleeping dog better left un-kicked. Why would the spouse of a sitting Supreme Court justice bring up that embarrassing past now? One can’t help but think that Justice Thomas wishes she had not made that call. Not that he will ever admit in this life that he lied. He has far too much invested in that lie to tell the truth now. Among other things, his wife might just kill him if he did.

And Mrs. Thomas would do well to heed Hamlet’s description of men to Ophelia, “We are arrant knaves all, believe none of us.

Rattlesnakes and the Evil Weed

October 13, 2010

Before me is the February 1938, edition of Readers’ Digest. In it I learn that President Franklin D. Roosevelt will never be elected to a third term and, from another article, I learn that marijuana is, “. . . as dangerous as a coiled rattlesnake.”


USFWS Photo of Marijuana

USFWS Photo of Marijuana


I note this danger of marijuana for the benefit of all those thinking of legalizing it. (I’m talking to you, California.) Or using it for medicinal purposes. Or health care professionals thinking of prescribing it.

Marijuana is “the assassin of youth.” If you smoke it, according to Mr. H.J. Anslinger, then the head of the U.S. Commission on Narcotics, you won’t know in advance whether you will, “. . . become a philosopher, a joyous reveler, a mad insensate, or a murderer.” Not only that,it can make you, “crawl on the floor and bark like a dog, and do it without a thought of the idiocy of the action.”

The Border Collies resent the implication.


Rattlesnake Disguised as a Killer Weed


Worse, marijuana can turn you into a swine – at least according to Homer as interpreted by Mr. Anslinger. And although 500,000 plants were destroyed in a single raid in Louisiana that year – yes sir, 500,000 plants – the drug was still responsible for the epidemic of murder, rapine, and robberies that apparently were sweeping the Nation in 1938. How many murders, suicides, robberies and maniacal deeds it caused that year, “. . . can only be conjectured.” (The only accurate statement in the article. Mr. Anslinger was big on conjecture.) According to Mr. Anslinger, “There must be constant enforcement and constant education against this enemy, which has a record of murder and terror running through the centuries.”

When I tell you that Mr. Anslinger spent his entire life creating and then running a drug agency for the sole purpose of giving himself a job, you may begin to understand his motivation. He was the grandfather of our incredibly successful “War on Drugs”. You know, that “War on Drugs” that has successfully eradicated marijuana and all other mind-altering drugs from our shores. After only seven decades. And several billion dollars.

But, even if the Reader’s Digest was wrong about marijuana, at least it got it right about Franklin Roosevelt. You will recall that President Wilkie defeated Roosevelt in 1940 when Roosevelt ran for a third term. I forget who defeated President Roosevelt when he ran for a fourth term in 1944. Probably somebody supported by  Reader’s Digest.

Who’s running Australia?

October 10, 2010

Some time ago I was discussing United States politics with my son who was quite well-informed. During the conversation it dawned on me that most of what he knew he had learned from Jon Stewart’s fake news show on the Comedy Central channel.


Bryan Dawe

What I know about Australian politics comes from a similar source: The three-minute fake interviews on Australia’s ABC television network with Bryan Dawe and John Clarke. Australia, which has a parliamentary system of government, recently had national elections in which a Liberal/National coalition party headed by Tony Abbott won 73 seats and the sitting Labor Party, headed by Prime Minister Julia Gillard, got 72 seats. The coalition party also won the popular vote but only by about 600 votes.

John Clarke

John Clarke

Apparently neither was able to form a government without the help of three independents. Those three agreed to join a new government headed by the sitting Prime Minister, Ms. Gillard, and the Labor Party.

Here are Clarke and Dawe doing a faux interview with two of the Independents, Tony Windsor and Rob Oakeshott. Bryan Dawe is the interviewer and John Clarke plays both Windsor and Oakeshott. (It may remind you a bit of Abbott and Costello’s “Who’s on First?”)

In my browser, the piece loads first with a photo of the news announcer introducing them. Above his head, you can see the program loading. After a bit a new window appears in the middle of the screen which requires a click on the start icon to get it going.


First Monday in October – Three Days Late

October 7, 2010


They’re back and, as usual, the return to active duty of the United States Supreme Court reminds me of the first paragraphs of Dickens’ Bleak House.

“. . . Implacable November weather. As much mud in the streets, as if the waters had but newly retired from the face of the earth . . .Fog everywhere. Fog up the river, amoung green aits and meadows; fog down the river . . . The raw afternoon is the rawest, and the dense fog is densest, and the muddy streets are muddiest near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation: Temple Bar. And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition with which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth.”

Just change the month and the name of the court and you get a feel for the sense of dread that begins each year at this time as the United States Supreme Court gets ready to do the corporations’ business.

But, first up, this year is the First Amendment and even the Roberts Court is hesitant to mess with that. And, as common with First Amendment cases, the speech at issue was odious. The little, tiny, Phelps “church” of Topeka, Kansas, the members of which appear to consist of exactly one extended family, arranged for seven of the family to protest at the funeral of a Marine killed in Iraq. He was killed, according to these alleged Christians, because the United States is soft on homosexuality.

If that makes no sense to you, you are sane.

Anyway, the father of the dead Marine, Albert Snyder,  sued the Phelps family church for intentional infliction of emotional distress, a tort that requires outrageous conduct. The “church” members had picketed his son’s funeral carrying obnoxious signs and later posted on their website an “epic” which accused the Snyders of raising their son “for the devil.” Keep in mind that their son was not homosexual, but because we’re soft on gays in this country, the Snyders were in league with the Devil when they raised their son and that’s why he got killed.  Then there were the signs: “Thank God for Dead Soldiers,” “You’re Going to Hell,” and “God Hates Fags”.

To call such ideas stupid is to give them a dignity to which they are not entitled. The news media have competed , trying to find an appropriate word: “odious”, “contemptibile”, “disgusting”, are a few I’ve read, but stupid fits better.

The Father won at trial but a federal appellate court took his jury verdict away from him, determining that the First Amendment protected the speech of the church members. For reasons that mystified most observers, the Supreme Court accepted the case and heard oral argument this week.

The oral argument was a sorry affair, primarily due to the inexperienced advocates for both sides. One perceptive observer said it reminded him of the 1945 World Series when both teams were so depleted by WWII that sportswriter Warren Brown said, “I don’t think either one of them can win it.” Worse, the daughter of the church’s founder and patriarch argued for the church. It’s never a good idea for a lawyer that close to a case to handle it. If your spouse is a brain surgeon and you have a brain tumor, it’s probably best for her not to do the surgery. So too with lawyers.

Look for the Court to affirm the “church’s” victory. Nothing in the First Amendment’s free speech clause exempts from its coverage political speech at a funeral.

Nor does it outlaw stupid speech.


The link above is to the blog of Garrett Epps. If you have time to regularly read only one blog about legal affairs, read his; skip mine.


October 5, 2010

I spent the whole weekend not doing lots of stuff that I should have been doing.

It was wonderful.

Among the things I should have been doing? Writing a blog post for today.