After the Tall Timber

by Renata Adler

  I have always known, and even written, that the strongest, perhaps sole remaining taboo on freedom of expression, in this country, is any criticism of the press. But here I had not only questioned a received idea cherished by the Times but I had not been sufficiently deferential to this Times reporter—and the whole Times bureaucracy, instinctively, needed to stamp out this disrespect. It would, of course, have gone without saying, until the Times, through Ms. Barringer, cited it with indignation, that a writer does choose what to write and when to write it. Now the matter had come to this: If you do not accept some cliché, bromide, or myth of theirs, and are not sufficiently deferential to them, this is not just insubordination. It is a breach of ethics.

  You must be admonished. You must be taught a lesson, so that other people may learn from it. Not only is your own reputation affected. You must, above all, recant. And this, this last issue—retraction—is where the question is inescapably, dangerously, altered. And why the whole series of attacks addresses something more serious than my little book. Look again at Ms. Barringer’s formulation:

  As it stands, Ms. Adler and Simon & Schuster, a unit of Viacom, are either cheaply smearing Judge Sirica—with legal impunity—or they have evidence. But neither the publisher nor the author shows any urgency about resolving the issue, either by retracting the accusation or establishing its accuracy.

  This is nothing if not a coercive formulation, pressure not just on a writer but on her publisher, and even her publisher’s owner, “Simon & Schuster, a unit of Viacom,” to retract. Whenever—and I think this is true without exception—you find a publication, or a journalist, calling for a retraction or a recantation by, of all things, a single writer (and actual pressure on her publisher, “cheaply smearing”), you know what sort of realm you are in. It is a realm where received ideas are not just propagated but enforced—and it is an unmistakably totalitarian realm. What “issue,” after all, could be “resolved” by a retraction? Nothing about Sirica, certainly. The only issue would be the power of The New York Times, in the person of Ms. Barringer and other writers, to coerce retractions. What this whole series amounted to was a show trial, with serial accusers, disinformation, designed to end, as show trials do, with recantations.

  Well, it nearly worked. The Times, of course, is still drawing on trust and respect well earned some years ago. In the course of this recent episode, Joseph Lelyveld, the executive editor, told me as early as April 3 that he had no idea the Times had published so many disparaging pieces about my book. He would look out for this sort of thing. Later, he said he would, if it had been his call, have run my letter (revised, of course, to conform with Times policy), but he had no jurisdiction over the Letters column. I knew he had no jurisdiction over the editorial page or the op-ed pieces. (Either John Dean is inspired, and writes, submits his work, and is edited with extraordinary speed, or his piece was solicited right after I told Ms. Barringer, to her evident disappointment, that my source was not G. Gordon Liddy.) The editorial board, of which, as we know, Ms. Barringer’s husband is a member, does have jurisdiction over both pages. Mr. Lelyveld is, however, in charge both of Corrections and the Editor’s Note. On April 7, he sent me a fax. “I try to lean over backwards in matters of corrections and editor’s notes,” he wrote. He, and Ms. Barringer and her editor, had considered my note. “At this point the only solution I can see,” he concluded, “is for us all to give the matter a rest.” This was wonderful. The Times had attacked me eight times (only the last four of them had even the pretext of Judge Sirica), citing (perhaps this goes without saying) exclusively hostile “sources.” These pieces had directly impugned my “ethics.” They would not print a letter, an Editor’s Note, or a Correction. In fairness he now felt that the only solution “for all of us” was to let the matter rest. Of course, the paper did not let it rest. Two days later, there was the news item in the Week in Review.

  Other journalists—in solidarity and taking their cue from the trusted and venerated Times—checked in. Some were apparently under the impression that I had used the Sirica passage as a sort of headline, to “hype” my book. Why else, after all, would the Times have devoted so much space and so many pieces to it? Piece after piece, in one medium after another, accepted as fact John Dean’s speculation that my source was Liddy. One spoke of my “trying to sell” my book with a libel that “shames all caring, responsible journalists.” That sort of thing. A media reporter for the Daily News wrote, on the basis of the Times editorial, that my book had been “plagued by” a series of “forced retractions.” In a novel use, by a media reporter, of the formula, she wrote, “Ms. Adler was unavailable for comment”—on the basis, perhaps, of having made no effort whatsoever to reach me. Perhaps the most surprising instance of this herd of indignant Times-inspired colleagues occurred on April 8, on CNN’s Capital Gang. Mark Shields, not usually, I would have thought, so orthodox a member of the guild, said, “And now for ‘The Outrage of the Week.’ ” I had “defamed,” he said, Judge Sirica, who was (in the by now altogether obligatory mantra) a scrupulously honest hero. “Renata Adler owes the family John Sirica loved and the nation he served so well an immediate and public apology.”

  Owing the nation an immediate and public apology does seem a bit much. But the Times’s campaign began, I suppose, with that first letter from the editor who subsequently “said he had decided to distance himself.” I should have left the galleys as they were. There followed the whole set of pieces, right through the almost laughably disingenuous characterization of John Dean. Disinformation. Show trial. Confession. Retraction. Not just yet. The Times, financially successful as it may be, is a powerful but, at this moment, not very healthy institution. The issue is not one book or even eight pieces. It is the state of the entire cultural mineshaft, with the archcensor, still in some ways the world’s greatest newspaper, advocating the most explosive gases and the cutting off of air.

  Harper’s Magazine

  August 2000

  AFTERWORD

  When I first wrote this piece, many journalists seemed to go more or less berserk. Without realizing it, they conceded that every word of my original sentence about Judge Sirica had been borne out. The ground, however, had shifted. The criticism now was that Sirica’s dishonesty, incompetence, connections, and ties were not sufficiently grave, or sufficiently recent, or sufficiently “hot” to justify my having referred, however briefly, to them. There seemed no doubt, however, that if the Times itself had discovered any element of the story, especially the reference to Sirica’s closeness to Senator Joseph McCarthy, it would have treated each element as a major scoop. Instead, the Times ran two more pieces, raising the total to ten, before my Harper’s piece even hit the stands. One, by Alex Kuzscinsky, was the only one of the ten that could not have served as an example of execrable work in any sophomore journalism class. Another, by Martin Arnold, cited in my Introduction, assured readers that there was nothing in the Harper’s piece; Martin deplored what was apparently his impression, that neither books nor magazines could meet the checking standards of newspapers like the Times. Ms. Barringer said, in an interview, that nothing I said about Judge Sirica could not be said equally about the heavyweight champion Joe Louis—which would be true, I suppose, if Joe Louis had ever fought, under fictional names, in districts where boxing was illegal, or if he had organized and promoted boxing, and served as Assistant U.S. Attorney in a district where his father ran an illegal liquor business, and so forth.

  What seemed most to infuriate those journalists who reacted angrily was that I had based my passage mainly on evidence in Sirica’s own book. I should, apparently, have claimed an “anonymous source.” As it happens, I did have other sources, and other facts, which I would have thought Judge Sirica, or at least his co-author, John F. Stacks of Time, would have thought worthy of inclusion, and which the Times and its acolytes might have found with a modicum of research. In 1927, in Chicago, for example, John J. Sirica himself (not his father) was indicted, along with severa
l co-conspirators, for fixing a prizefight and for income tax evasion. The indictments were sealed. The case never went to trial.

  In his fine biography of Jack Dempsey, Roger Kahn writes that, in looking at a video of the second Dempsey-Tunney fight, with its famous “long count,” “I am looking at a crooked referee.” Perhaps. Perhaps not, or not just the referee. Kahn, like most other experts on boxing history, writes that Al Capone was very eager to back Dempsey in that fight but that Dempsey, man of honor that he was, firmly rebuffed him. Something seems amiss in the underlying logic of this story. Mob bosses approach fighters and (as in the Black Sox scandal, which also took place in Chicago) baseball players not to win matches but to lose them. Winning is what the fighters, or the players, want naturally to do, when they are not bribed to do otherwise. Dempsey, of course, did lose. The fight-fixing for which Sirica and others were named in the sealed indictment of 1927 was the Dempsey-Tunney fight. (No referee is mentioned in the sealed indictment.) My source for the information about Sirica’s inclusion in the indictment (for fight-fixing and consequent tax evasion) was the Criminal Investigation Division of the IRS—which published its own historical study for internal use.

  In my Harper’s piece, I confined myself to matters that virtually sprang off the page of Sirica’s own autobiography, the book I chose not to review. It was not my intention to address anything more sensational than the literal meaning of a few words on page 125 of my own book. Suddenly, these heroic defenders of reputation (not the reputation, perhaps, of a single scientist, like Wen Ho Lee, in solitary and in shackles, on the basis largely of their institution’s coverage) emerged, one after another, as though there were an honor roll: ten within the Times alone, to be followed by hundreds more. It was as though the press, self-important and self-righteous as it is, seems entirely unconscious of its own weight against any single, let alone dissenting, individual, or of its own role in the events it claims to cover. I thought this a more interesting and more important subject, than the details of Sirica’s status. In view of the astonishing aftermath of the piece itself, however, just for the record, a bit more about what any genuine biography of Judge Sirica would include.

  Though Sirica describes Dempsey, at least after 1934, as “my best friend,” and although Dempsey, far more openly than Sirica, managed to avoid military service (after World War I, Dempsey was actually indicted and tried for draft evasion), there is, oddly, no mention of Sirica in the index of any Dempsey biography. Or for that matter, in the index of any biography of Senator Joseph McCarthy, or of Walter Winchell—at least two of whom, it may be remembered, had their own involvements with organized crime: Dempsey with Capone, and Winchell of course with Louis Lepke and Frank Costello.

  By “organized crime,” incidentally, I never for a moment meant the Sicilian Mafia. The interests in question were for the most part Jewish and even Irish. I did leave out one Italian connection: Al Capone. That connection was Neapolitan. Al Capone’s father, Gabriel, had immigrated from Castellammare di Stabia, in the Bay of Naples, where he had learned his trade. Like Fred Sirica, who emigrated from San Valentino Torio (also in the Bay of Naples, a few kilometers from Castellammare di Stabia) Gabriel Capone was a barber. The two men were friends.

  I leave aside any number of utterly incomprehensible omissions from Sirica’s autobiography. Senator Hiram Bingham, of Connecticut, for example, is introduced to Sirica by “a cousin,” who “happened to be active in local politics in Waterbury,” so that Bingham will “endorse” Sirica for the job of Assistant U.S. Attorney. It is not surprising that we hear no more about the “cousin.” Hiram Bingham, however, not only was one of the very few senators ever to incur a vote of censure by the full Senate (in 1929, for putting a lobbyist on the Senate payroll as his clerk). He also had been educated at Groton, Yale, Berkeley, and Harvard; served as lieutenant governor and then governor of Connecticut; written more than a dozen books, and, as a distinguished scholar and explorer, actually discovered the ruins of Machu Picchu. That Hiram Bingham.

  Some readers seemed bewildered by what I could have meant, in the piece, by “totalitarian.” They seemed to think that it meant “totalizing” or something. What I meant by a totalitarian reaction to a piece of writing was this: not debate (particularly not “the free, robust, and wide-open debate” envisioned by the First Amendment); not even invective, or mockery, or expressions of rage, scorn, indignation, disdain, or argument of any sort. But advocacy of retraction, eradication, silencing. Not “I disagree with what you say,” but “I will attack to the death your right to say it, as well as the forum (book publisher, magazine) in which your work appears.” Eradicate, in other words, not just a book or a piece but, if possible, the author and eliminate future outlets for this heresy. This view of what writing is, and the appropriate response to it, is nothing if not totalitarian.

  Supposing, however, just supposing, what was not the case: that I had been mistaken. That Sirica had been brilliantly competent on the bench and in his conduct of the case, that he had never so much as heard of Senator Joseph McCarthy or of any form of organized crime, that his book and his life had been models of rectitude and forthrightness. What then? Nowhere, in any of the Times attacks, was there the slightest indication that my reputation did not rest entirely on this single sentence on page 125 of my sixth book. If they had misspelled Sirica’s name, of course, or mine, they would have felt bound in fairness to run an Editor’s Note or a Correction.

  People forget things. Everyone forgets. I keep forgetting, for example, to mention that the Starr volumes are in their way a masterpiece that, quite apart from any prosecutorial or political matter, is full of fascinating incidents and characters. It ought to be published with type large enough to read.

  2001

  IRREPARABLE HARM

  The Framers of the Federal Constitution . . . viewed the principle of the separation of powers as the absolutely central guarantee of a just Government . . . . Without a secure structure of separated powers, our Bill of Rights would be worthless . . . . Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing . . . . But this wolf comes as a wolf.

  —Justice Antonin Scalia, dissent in

  Morrison v. Olson, June 29, 1988

  When we make a difficult decision in many areas—and this was not the most difficult decision the Court has made . . . . My colleagues and I want to be the most trusted people in America . . . .

  —Justice Anthony Kennedy, testimony before the

  House Appropriations Subcommittee, March 29, 2001

  I.

  NOT INFREQUENTLY, an event so radical that it alters everything appears for a time to have had no effect, or even not to have occurred. This is true in personal as in public life. A loss, a flood, a medical diagnosis, a rolling of tanks toward the statehouse—life goes on apparently as usual. Nothing is changed. It is particularly true of events that are irremediable. When there is nothing to be done, people go to work, eat their lunch, sleep, awaken to a vastly altered world, in ways that seem uncanny in their ordinariness. The decision of the Supreme Court in Bush v. Gore, in all three stages—accepting the case at all; reversing the judgment of the Florida State Supreme Court; above all, perhaps, granting a stay of the recount in Florida—gave rise to lots of comment. Outraged, gleeful, satisfied, resigned, the response seemed in almost every case to follow from the politics of the speaker. Republicans and “conservatives,” for the most part, approved. Democrats and “liberals” did not. The decision seemed to close the subject. Normal life resumed. George W. Bush was president and that was that.

  George W. Bush may become a distinguished president. As to the Court’s “fundamental fairness” in the matter—its claim, as Justice Kennedy put it, on the people’s “trust”—the issue seems settled in a single question: if Al Gore had been the petitioner, with the same set of facts and arguments brought by Bush, would the Court have decided as it did? A rhetorical question, surely. Not a single justice woul
d have agreed to hear the case.

  The major issue was never really who would become president, or even the immense damage that the Rehnquist Five have done to the integrity of the Court. Its moral, intellectual, and legal authority had already diminished over a long period of poorly reasoned opinions expressed in unseemly and unjudicial—often supercilious and even sneering—words. What remained was its power. The Supreme Court has made mistakes before: Dred Scott, Plessy v. Ferguson, Korematsu, and so on. What is unprecedented in Bush v. Gore is the exercise of power—specifically allocated by the Constitution to the states and to Congress, and specifically not to the federal judiciary—in the expression of a profound and absolute conflict of interest. The Rehnquist Five want the Court to become a self-selecting body. In their treatment of Bush v. Gore, they did what they could to achieve that result.

  The decision, per curiam, unsigned, but apparently written by Justice Kennedy, with a separate concurrence by Justices Rehnquist, Scalia, and Thomas, is a swamp. No matter where you look at it, you find something specious, mischaracterized, incoherent, internally inconsistent, false. Because it issues from the Supreme Court, however, legal scholars, lawyers, judges, congressmen, voters, and senators—above all, senators—are obliged to take it seriously. Its consequences are serious in ways that have nothing, or almost nothing, to do with the election of George W. Bush. He would have become president in any case. If the hand count had gone, as it would probably have gone, for Al Gore, the procedures established in our system would have yielded two slates of electors from the state of Florida: one for Gore, one (submitted by the Republican Florida legislature) for Bush. Congress would have had to choose. If Congress could not agree, the choice would revert to Florida to be made and certified by its executive, Governor Jeb Bush.