Wednesday, May 18, 2011


I just had an aha! moment.

I received an email from Anthony Weiner, activist Congressman from New York's 9th District.  Love him or hate him (he's a Democratic rabble rouser) Rep. Weiner is not content to play the Washington game on the Beltway field alone.  He's embraced social networking, and takes his agenda to the masses via email, facebook, etc.

This morning his missive was about Supreme Court Justice Clarence Thomas.  Representative Weiner wants us to help him pressure Justice Thomas into disclosing his conflicts of interest.  It appears that the Justice neglected for 13 years to note that his wife was earning significant sums of money from radical right interests - and was lobbying on their behalf against health care.  The total of these earnings during the 13 year period, according to Rep. Weiner, is $700,000.   This is important both because financial reporting is a legal requirement for the justices, and because judges are required by the professional ethical rules to recuse themselves in the face of conflicts of interest.  We are moving up to a new financial disclosure deadline and Rep. Weiner wants to use public pressure to make sure Justice Thomas comes clean this reporting period.

I had a moment of hesitation before  I clicked the link to add my name, for whatever small increment of power it brings, to Rep. Weiner's list.  I'm going to take a moment to justify that click, but first let me say that what prompts this morning's blog post is not my distaste for Justice Thomas, but the moment of hesitation during which I was deciding whether to act upon it.  I will return to this in a moment.

Now to out my bias:  I have never felt comfortable with Justice Thomas' appointment.  I was a second year law student making the summer clerk interview rounds the day Brandeis Professor Anita Hill testified to Justice Thomas's inappropriate sexual harassment.  I watched the hearing in the office of a lawyer who was interviewing me for a summer job at his firm, which hopefully would lead to a permanent position.  Here, from Wikipedia - meaning, I haven't taken the time to get a better source, but I'm using Wikipedia because it's convenient and accurate enough to my memory of the event to justify using Wikipedia - is a summary of Hill's testimony:

"Hill's testimony included a wide variety of language that she allegedly was subjected to by Thomas and that she found inappropriate:
He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes....On several occasions, Thomas told me graphically of his own sexual prowess....Thomas was drinking a Coke in his office, he got up from the table at which we were working, went over to his desk to get the Coke, looked at the can and asked, "Who has put pubic hair on my Coke?"[3]
Four individuals (Ellen WellsJohn W. Carr, Judge Susan Hoerchner, and Joel Paul) testified that Hill had been upset at the time she worked for Thomas about what she had said was sexual harassment by him. Angela Wright, another of Thomas' subordinates, stated that she had not considered the behavior to be sexual harassment, but that others might. She was interviewed by Senate Judiciary Committee staff, but did not testify at the hearings. Wright had been fired by Thomas from the EEOC. [4]
Anita Hill's accusations were viewed suspiciously by Thomas' supporters, partly due to their timing (only revealed during Justice Thomas' confirmation hearings) and the "he said, she said" nature of the discussions made privately between Hill and Thomas. Further cause for suspicion were her actions after the contested events: in addition to following him to the EEOC, after that job concluded she continued personal contact with him, both in public and in private.[5] Anita Hill agreed to take a polygraph test which found that her statements were true. Clarence Thomas refused to take a polygraph test. Thomas made a blanket denial of the accusations, claiming this was a "high-tech lynching".[6] After extensive debate, the U.S. Senate confirmed Thomas by a vote of 52–48.[7] "

As I watched the historic moment with an older male lawyer on his office TV, I was flabbergasted.  Not so much by the fact that a man might talk this way to his female colleague, but because, during the time-frame of the events to which Hill was testifying, Thomas was the U.S. Chairman of the Equal Employment Opportunity Commission.  The EEOC is the entity established specifically to provide guidance on and enforcement against discriminatory practices in the workforce, including sexual harassment. 

I would think back to this moment again, when Elliot Spitzer, the New York bulldog prosecutor who was caught buying prostitution, broke my heart by believing he was above the law he was hired to enforce.

After turning off the television, the interviewing partner asked me illegal questions.  He wondered whether I had children, and then what their ages were.  He asked how I would manage my work with two small daughters, whether I had adequate after-school care and whether after-school activities would interfere with my practice.   I thought about, hesitated, then bit my tongue instead of asking him whether he understood that he, too, was violating Title VII laws.

Despite the fact that Hill passed a polygraph and Thomas refused to take one, it did not surprise me to learn that  the Senate nevertheless confirmed Thomas.  

This biting my tongue is the thing I want to talk about today.  Anita Hill was grilled about why she did not come forward with these allegations before Thomas's nomination to the Supreme Court.  I am not sure, but I'm guessing it's the same reason I did not point out to my interviewer, or later to the recruiting lawyer assigned to shepherd me around the firm, the legal indiscretion I had just endured.  I did not say anything to the interviewing partner because I did not want to jeopardize my chance at a job offer.  Anita Hill did not want to report Clarence Thomas because, although he made her extremely uncomfortable with his behavior, he also had the power to help her into some amazing career opportunities. 

I want to talk about how we are culturally conditioned to protect behaviors that we abhor in order to keep our personal and professional opportunities open.  How, by hesitating and then biting our tongues we enable individuals to perpetuate practices that are illegal, immoral, destructive not only to themselves, but to our culture, our democracy, our future.  And we do this out of fear, in the face of power that could be used to hurt us.  But in doing so, we perpetuate this power.  

Instead, we look the other way to cover our own behinds.  And yes, every morning you can read about a Clarence Thomas or IMF chief Dominique Strauss-Kahn, accused of raping a hotel maid, or Representative John Ensign, the latest in a long line of beltway sex scandals.  Representative Ensign, if you've been hiding under a rock, was having an extramarital affair with a staffer, and later, found his mistress's husband a job and his parents helped some hush money into the husband's pockets.  Think of the taxpayer dollars wasted on investigations, think of the programs and projects abandoned by these leaders because they're too busy defending themselves from the press and the law.  Think about the waste of news print on personal relationship dynamics that could otherwise be given over to really important domestic and international issues.   If you're not sure how much waste goes into this problem, simply think about the Monica Lewinski media circus.

If society instead had a cultural practice of outing illegal and immoral behavior when they first notice it, the public pressure to conform to legal and ethical standards would be much stronger.  There's a saying about small town America, "Everybody knows everybody's business."   When word's likely to get out, that's a significant deterrent.  If people  believed that folks around them would tell instead of looking the other way, at least some of these activities would remain a crazy seed of an idea instead of  translating into action.  Instead of active philandering, we might have more of what President Jimmy Carter called "lusting in my heart."   Instead of active breaches of trust, fiduciary duty and law, we might have more creative juices poured into useful activities.  We might have more integrity and better democracy.  Less waste of public and private resources.  More attention to real issues, and less tabloid journalism.  

I've focused on discrimination and sexual harassment behaviors here because Anthony Weiner got me thinking about Clarence Thomas this morning.  But there are so many other examples.  A few months ago in Arizona, for instance, a scheme to funnel about $46,000 from the Fiesta Bowl organization, a nonprofit 501(c)(3), to political candidates came to light.  The scheme involved pressuring employees to make donations and then paying them back, using false notations in the accounting ledgers to cover the donations.  There were a dozen or more employees who hesitated and bit their tongues.

Open the paper any morning.  If the scandal is big, it's likely that people knew or suspected, but hesitated and then bit their tongues.

Last night at dinner, a girlfriend and colleague told a story about a mutual friend who has her sights set on running for office.  My friend said of this woman, who calls a spade a spade, that she needs to learn to keep her mouth shut.  If she wants to run for office, she needs to remember that the very people she is trying to hold accountable are the ones she will later have to ask for money.  Conversations like this shape behavior.  While there is legitimacy in what my friend said, is this the democracy we want to shape?

There's little I can say that will change this situation.  People are in various positions of power, and they will continue to help those who promote them and they will continue to intimidate and punish those who seek to undermine them.  And it's hard to argue that one lonely voice raising itself in the face of injustice will impact more than the vocalizer's future.  Look where got Anita Hill when she finally came forward.  Anita Hill will go down in history for a comment about a pubic hair and a coke can.

Even so, what made the moment an aha! for me is that we have become so conditioned to hesitate, to bite our tongue, to forbear from saying truths that would hold people accountable, that I even hesitated to click a very anonymous link.  An anonymous link?  Even if Clarence Thomas has people who will go through those petitions looking for names, mine will not stand out in Washington, D.C.  I am a nobody, and my clicking a link, and typing my name and zip code into the little boxes, will not harm me.  And yet I am so conditioned to hesitate, to do nothing at all to rock the boat or upset the status quo, that I hesitated.

We are very deeply conditioned indeed.  This conditioning is dangerous.  It's the quiet, cultural conspiracy to keep those in power where they are, no matter how they behave.  Is this what we want?  Or can we become cognizant of this tendency?  Can we at least, during our moment of hesitation, let ourselves ponder the possibility of a greater good that could come of vocalization?  Can we collaboratively work to create safer avenues to report these transgressions against society's very fabric?  Can we at least say "yes" when the opportunities come to raise our voices in unison, like the opportunity Representative Wiener gave me this morning?

I see fighting the urge to hesitate as a change-the-game behavior.  As the change we are looking for.

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