Tilting at Windmills

Washington Monthly, Nov, 1995 by Charles Peters

After worrying about the issue for years and going back and forth on it more times than I would like to admit, I have finally come to agree with Clarence Thomas that affirmative action--to the extent it leads to the advancement of the unqualified-is wrong. There is no better proof than Justice Thomas himself....

The Simpson verdict has to rank as the most conspicuous example of affirmative action at its worst: wrong done to right other wrongs. As The Washington Post's black sports columnist Michael Wilbon observed, "A lot of black people ... see this as payback, even if the score is still about one million to one. They feel the chickens might have come home to roost yesterday for all our relatives and ancestors who've been beaten and raped and lynched and murdered by whites without any consequence whatsoever."

Wilbon, however, goes on to see the real point: "Personally, I think a better measure of justice is seeing the man who murdered Medgar Evers convicted some 30 years after the act." The right revenge for an unjust act is to seek justice, not to commit another unjust act....

Although I'm not a big fan of Marcia "I need more money for my wardrobe" Clark, I must say I felt for her as she was constantly interrupted during her final argument. Having practiced law myself, know how hard it is to hold on to one's train of thought and maintain an air of calm composure as you try to conceal trembling hands and knees. The repeated interruptions Clark was subjected to must have been devastating for her. What most non-lawyers don't understand is why defense lawyers feel free to employ outrageous tactics like these: Although the defense can appeal a guilty verdict, the prosecution cannot appeal a verdict of innocence. Thus, prosecutors must be on pins and needles to avoid an error that would give the defense the grounds for appeal. The defense, however, does not have similar constraints on its behavior.

Shouldn't the judge be allowed to explain to the jury why the defense thinks it can get away with tactics like repeated objections on points he has already decided? And if defense lawyers persist in such tactics, shouldn't the judge tell them that, at the end of the trial, they will be jailed for contempt of court with the length of the sentence dependent on whether the misbehavior continues? ...

I have to confess that I have been a faithful fan of the Miss America contest for far too many decades. This year the big issue was whether to keep or eliminate the swimsuit competition. Television viewers were asked to call in and cast their votes. Then the result, a victory for swimwear, was announced. The announcement came, not from Atlantic City, but from Omaha. And the person who announced the vote was surrounded by people wearing white coats. Why Omaha? Why white coats?

For those of you similarly mystified, I offer these possible explanations: Maybe the promoters thought the average citizen would have more confidence in a count made in the nation's heartland than one made next door to the Trump Casino. And the white coats were probably intended to convey a zeal for scientific accuracy....

The Packwood dimes are full of revelations of the seamier side of life on Capitol Hill. My favorite comes when Packwood hits up his lobbyist friends for help in finding work for his estranged wife so he won't have to pay her as much alimony. One lobbyist said he could offer $37,500 over five years for part-time work and added, "If you're chairman of the Finance Committee, I can probably double that." (For more on the Packwood dimes, see page 17.) ...

The fact that the Republicans are abolishing a good agency, the Office of Technology Assessment, went largely unnoted by the press as the OTA closed its doors on September 29. Of the major newspapers, magazines, and television networks, only The New York Times (Keith Bradsher) and ABC News (Peter Jennings and Beth Nissen) carded news stories making it clear that a useful agency was going down the tubes. Earlier op-ed pieces by Daniel Greenberg and David Broder in The Washington Post supported the OTA, but the paper's only news story by Stephen Barr failed to give either a positive or negative evaluation of the agency. The Wall Street Journal's news story reflected the editorial page's brain-dead conservatism by praising the elimination of OTA as evidence of the GOP's effectiveness in cutting back government. Outside of Washington, we could find only Tulsa World, The Pittsburgh Post-Gazette, and specialized technology publications speaking on the OTA's behalf....

But if ABC deserves an A for its OTA coverage, it gets an F for its shameful cave-in to Philip Morris. The amount of the settlement--$15 million--is five times the largest verdict ever awarded in a libel suit. The possible error in ABC's story was so slight and the amount of truth in its story was so great that a jury would have probably found for ABC or at worst awarded token damages to Philip Morris. One therefore cannot help suspecting that ABC simply wanted to avoid a contingent liability on its books, however remote the contingency might be, and to avoid the expense of protracted legal proceedings. ABC's sin was compounded by its agreement to surrender the evidence it had collected to Philip Morris, which is not likely to eagerly share it with the public.