Sneaking Suspicions
Archives-- April 6-12, 2003

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This page includes posts from April 6-12, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

April 12, 2003
I didn't know we were such a nuisance

Someone doesn't want us here.

Starting early this morning and on into this afternoon, a bold robin has been continually knocking his beak against one of the windows to the home office of Sneaking Suspicions.

Here's what it looks like:

Apparently we're just a little too close to the new nest they've built in the bushes just outside the house, and they'd really rather we weren't here to disturb them.

Pushy new neighbors.


April 12, 2003
There’s no must about it

Two final thoughts about the Martha Burk/Augusta National flap, on the day of her official protest about private membership privileges in the incredibly exclusive country club.

Face-saving and the backlash for ignoring it. Many folks know that face-saving plays an important role in Japanese culture. 

What sometimes seems less well-known is that Japan is by no means the only culture where this requirement takes on such significance. For example, saving face is a singularly important part of American social and political life.

The legislation I draft on many occasions includes saving face as a silent but primary goal for one or more politicians. If the bill helps them recover from an embarrassing situation, the support will be there.

After all, a bill’s chances in the General Assembly are rarely based on a coldly rational assessment of its worth. Personalities play a critical role. The degree to which someone appears to have personally decided to adopt a political position, as opposed to being seen as meekly submitting to the demands of others, is often the difference between a bill going forward and a bill dying in committee.

The ability to find ways for others to save face is also a requirement for successful navigation of the social whirl of top business executives. The ego demands of highly successful people often have a greater effect on their decision-making than mere logic.

Burk either doesn’t know this, or doesn’t care because she’s only interested in preaching to her choir.

Earlier this week, she made a direct challenge to the members of Augusta National to resign from the club if women were not also permitted to join:

"If they do not agree with this policy, they must resign their memberships," said Martha Burk ….


This is a private membership club.

There’s no must about it.

On the other hand, there’s always “should”.

Furthermore, there is almost always a far better method to achieve one’s goals, instead of making very direct, very public challenges to another person’s autonomy.

The only thing that Burk likely did here, other than create some enormous publicity for herself, was push back the date on which a highly successful woman CEO would be asked to join Augusta National, instead of the current practice of playing the course as a guest.

There was simply no way someone in Hootie Johnson’s position could be seen as submitting to Burk’s ultimatum.

As women take their rightful places at the top of the American business and social ladder, they will find themselves asked to join previously male-only institutions, such as Augusta National. It’s inevitable, and a good thing. I hope my daughters are among those invited to join such places, as they make their way in the world.

The backlash Burk instigated, however, with her demands and intemperate language that ignored the American culture of face-saving, only delayed the process of women’s eventual integration into this famous emblem of success.

Losing friends and failing to influence people. Burk also managed to lose real or potential support for her cause by the manner in which she tried to make a connection between the Iraq war and Augusta. I can’t improve on the comments made here by Sports Illustrated's Roy Johnson, and strongly recommend reading the whole piece.

April 11, 2003
That was heavenly

My wife sometimes laughs out loud when she reads the local newspaper or even the statewide daily. On the other hand, I never heard her snicker when she read The Dialog, the newspaper published by our Catholic diocese.

Until last night.

As she giggled, I asked why. She handed me the paper and pointed to this headline:

Lay-run program aims to save failing marriages

Almost gasping for air, she said, "I'll bet that combined method works really well."

I think she's right, of course.

April 10, 2003
That 1.58% must be some really special property

Sometimes one just has to wonder about the sense of proportion that folks bring to the issues that concern them.

The Seventh Circuit Court of Appeals announced a National Environmental Policy Act (NEPA) decision on April 8 that caused me to think again about this puzzle of human nature.

Hoosier National Forest spreads out over 196,102 acres of land all over Indiana. It includes a huge percentage of the state’s available public land for recreation and hunting. The United States Forest Service is responsible for overall management of this vital natural resource. 

Almost all of the Forest areas are filled with a mix of oaks, hardwoods, and pine trees older than 10 years old. The remainder, about 3 percent of the total, are in what are called “early successional” stages. These are small natural and “managed” openings in the Forest, including very small trees and meadow-like areas. The managed openings are kept that way by mowing, cutting, and sometimes with controlled burns.

These openings themselves provide critical habitat for a wide variety of plants and animals that thrive at the edges of the deeper forest. 

In the late 1990s the Forest Service began its required environmental work in support of a project to maintain about a thousand such openings. The idea was to continue to provide for

successional habitat for a variety of wildlife species, to add visual variety to the landscape, and to provide for recreational activities such as hunting, berry-picking, and wildlife observation.

The eventually adopted plan called for maintaining 947 openings on 3111 Forest acres.

That’s a grand total of about 1.58% of the entire Forest, with each opening about three-tenths of an acre in size (if all were equal).

Although certain ornithologists and others expressed comments and concerns, the Forest Service addressed those concerns directly in the course of preparing a final Environmental Assessment (EA) for the project. The agency then filed a notice and Finding of No Significant Impact (FONSI) for the project.

That determination didn’t satisfy some of the environmentalists. After losing an administrative appeal, they sued in Federal Court on familiar grounds—The project was fatally flawed because the Forest Service had not prepared a full-bodied Environmental Impact Statement (EIS).

After losing in the District Court, the groups then appealed.

The Seventh Circuit panel gave a nicely succinct description of the difference between an EA and an EIS: 

Under NEPA, federal agencies must include an EIS in every recommendation for “major Federal actions significantly affecting the quality of the human environment.”… When a proposed action is neither one normally requiring an environmental impact statement nor one categorically excluded from the EIS process, the agency must prepare an environmental assessment (EA).  An EA has been described as a “rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement—which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project—is necessary.” [footnotes and citations omitted].

The appellants focused their contentions on the continuing controversy over the impact of the management project on several bird species. They didn’t make an issue about the other issues such as berry picking, wildlife observation, or hunting.

Even so, the Circuit Court noted that the Forest Service’s FONSI response was based on work performed by other bird experts. The fact that the two sets of scientists disagreed simply didn’t convert the EA process into one requiring an EIS. All it meant was that the Forest Service did its job the right way, by using appropriate specialists to address the scientific issues raised by the opponents. The fact that these specialists came to a different conclusion than the opposition did not convert the Forest Service EA decision into an arbitrary or capricious result.

As the Court held,

The Forest Service’s own assessment … is entitled to deference if it is made after a hard look at the controversy and rationally related to the data.

As I see it, the issue remains related to proportionality. The opponents raised questions about the impact of these openings on bird habitat. I could understand their concerns meriting an EIS if the Forest Service was proposing some kind of massive clear-cutting of huge swaths of the Hoosier Forest.

But 1.58%?


April 9, 2003
By George, I think she’s lost it entirely

The Eleventh Circuit Court of Appeals turned down Martha Burk’s quest to place her group of protestors at the front gate of Augusta National this Saturday.

Based on the quotes reported by AP Writer Paul Newberry, it looks like Burk lost more than just her appeal.

For example:

  • "So, the circle is complete on cutting off our free speech rights," she said. "This was our last shot."

Burk and her group can gather together at a city- and court-approved location for her protest. She just can't hold it at the Augusta National gate. That's hardly being cut off from the exercise of free speech rights, and she knows that.

  • "I'm disappointed that the wall of discrimination is so high down there that local authorities, and even the judges, are willing to conspire with the club, the mayor and the city commission to deny us our free speech rights," the Washington-based Burk said.

I’m truly disappointed that a losing party in a lawsuit would stoop so low as to allege a criminal conspiracy as the only explanation for her loss, especially when this illegal scheme would include among its alleged participants a U.S. Chief District Judge and a three-judge panel of the Eleventh Circuit, not to mention a city commission and mayor. I'm more than disappointed, in fact.

This woman lost any class she may have ever had with this intemperate statement.

  • "Clearly, they put this club over the Constitution. That ought to be a concern for everyone in this country."

It's really not so clear. In fact, the city and the judges seem to have appropriately emphasized safety issues over Burk's preferred location for her protest, especially when an alternative location for the demonstration is provided.

The real concern for others should be centered on why Burk would press so hard to destroy the constitutional right to freedom of association.

April 9, 2003
Still time for another tax case

Less than one week remains before most folks have to file their federal income tax returns. And just like the swallows at San Juan Capistrano, here’s yet another decision returning from the Circuit Courts, as the courts continue their springtime ritual of handing down tax opinions just in time to remind taxpayers of their legal obligations.

This case involves the gift tax laws, which for most folks don’t come into effect until the gift value exceeds $10,000. 

Virgil Elings understood his gift tax obligations. In 1995 he filed a gift tax return reporting a gift of stock valued at about $2.5 million.

Nice gift.

It would have been even nicer if the IRS agreed with Elings’ valuation. Instead, the agency sent a deficiency notice for more taxes, claiming that the stock value was in fact more than twice what he told them. The dated notice also told Elings he had ninety days to file a petition to contest the deficiency. 

Elings filed his petition well before the deadline date. He also decided that when it came to being hypertechnical about compliance with the tax laws, the IRS may have met its match.

His attorneys argued that the deficiency notice was fatally flawed, in that the IRS failed to include within it the formal “calculated date” by which Elings had to file his petition challenging the notice. As they saw it, this technical glitch automatically invalidated the IRS attempt to collect the gift taxes.

The Tax Court didn’t think much of this defense, and neither did the Ninth Circuit.

Nonprejudicial minor or technical errors in a notice do not invalidate the notice. Major errors, such as those that show the IRS failed to comply with the most fundamental statutory mandate, can invalidate a notice….The failure to include the calculated date, when the notice was dated and instructed Elings that he had ninety days in which to file his petition, was a non-prejudicial minor or technical error. Therefore, the error did not invalidate the notice. [footnotes omitted.]

It therefore appears that being a stickler for form over substance sometimes won’t take one very far. 

Thus endeth today’s tax tip.

April 9, 2003
Maybe it’s not the message

Well. That didn’t take long.

Martha Burk is now appealing the denial of her injunction request to have her protest group located at the entrance to Augusta National to the Eleventh Circuit.

She also managed to take a shot at the District Court in reaction to the first round loss, as quoted in a Paul Newberry AP piece:

"party revelers are taking precedence over legitimate protesters.''

I can well imagine that her local counsel had a conversation with her after reading this quote and others, in which she also allegedly challenged the good faith of the Augusta city officials.

Those kind of remarks are never well-received, rarely deserved, and usually fail to garner any significant sympathetic response from anyone other than the previously converted.

I’m beginning to think that the problem with this protest might not be the message, but the messenger.

For example, consider this little tidbit from the Washingtonian Magazine, in which Burk displayed what many would consider a deficient sense of the social graces:

The Gridiron dinner is an occasion for the press corps to poke fun at the country’s political powers in an atmosphere of good fellowship….

One unmoved guest was Martha Burk, head of the National Council of Women’s Organizations and the leading critic of the Augusta National Golf Club’s ban on female members. During the traditional standing toast to the President, she refused to budge from her seat.

Then consider the fact that a deeply partisan Democrat like Donna Brazile manages to have a good relationship with presidential advisor Karl Rove, as described in this April 7 profile of the Louisiana political consultant:

She also maintains close ties to some influential Republicans.

Although she and President Bush's political adviser, Karl Rove, went head-to-head in the 2000 campaign, they developed a friendship through the competition.

Brazile said she likes Rove because he shows her respect, ``and you don't find many men who respect women of the same level as them in this business.''

Suppose Brazile had accepted the challenge on which Burk is expending such energy on behalf of wealthy women golfers. I can well imagine she’d have been able to work something out with Augusta National's Hootie Johnson.

A woman who defines her year by reference to which seafood is in season, as described in this profile, and who can also be friendly with her greatest political competition, is the kind of woman who would be up to this peculiar task.

April 8, 2003
Evocative imagery

Jack Shafer writes a fine column for Slate on media issues. His piece this week on R.W. Apple, Jr. of the New York Times is no exception.

R. W. Apple, Jr.

Shafer rightly critiques the long-time writer for his shifting positions on the Hussein matter, with some cogent examples and commentary.

In the middle of his essay Shafer also created a remarkably vivid mental image:

Without acknowledging that he himself painted the picture he's dismantling, Apple pirouettes....

Unfortunately, when I read about "Johnny" Apple pirouetting, I couldn’t stop thinking of another talented performer, who appeared in the Disney animated classic, Fantasia:

Her name is Hyacinth.

I’m sorry, but it’s the truth.

Link via MediaMinder.

April 8, 2003
A slight surprise

Just after normal court hours yesterday U.S. District Court Chief Judge Dudley Bowen Jr. issued his second opinion in the Martha Burk/Jesse Jackson case about protesting at Augusta National.

He upheld the place restriction Sheriff Ronnie Strength placed on large groups seeking to demonstrate during the Masters® Tournament. The permit decision limited groups larger than four to a 5.1 acre site several hundred yards from the main entrance, on land offered for the purpose owned by the private club.

Among other reasons, the judge reportedly noted that the recent Augusta ordinance governing these events was based upon the Chicago Park District ordinance upheld by the U.S. Supreme Court last year.

The judge was apparently convinced that safety considerations justified the demonstration restrictions:

[He] called the area outside Augusta National Golf Club "profoundly congested" during Masters Week and wrote that the introduction of protesters to the area presents "a realistic, plausible, even probable potential for some accidental injury."

The story also noted that protestors in groups of up to four are exempt, and that the ACLU is considering using that method to avoid compliance with the permit condition, as well as an appeal to the Eleventh Circuit.

I'm a bit surprised, but then I'm looking at the situation from afar, and didn't see all the evidence that went into the case. On the other hand, as noted in last night's post about the judge's first opinion on the injunction request there was something a bit off-putting about the plaintiff's argument. Perhaps that also played a role.

Perhaps Howard Bashman will find the URL cite to this opinion so I can see what else is noteworthy about this decision.

April 8, 2003
Traffic Report

April 6 marked the 15-month anniversary of this site. As of that date, 101,055 visitors have viewed 131,006 pages.


Thanks very much for your patronage. Stop by again soon.

April 7, 2003
Flooded with fun at work

Some of the jokes about one's native state are funny because they are based on the truth.

It's sometimes said that Delaware is made up of three counties, but only at low tide. At high tide, it's only about one-and-a-half counties at best.

The Diamond State admittedly has more wetlands within its boundaries than every other state except Alaska and Louisiana, at least as a percentage of total land mass.

In addition, the incredibly flat landscape of the lower two counties means that whenever the water's around, it stays around. Some areas just seem to take forever to drain.

Today's work included a road trip to check out a little flooding problem not far from Dover AFB, in Kent County.

 When there's a yellow diagonal sign saying Water on Road, they really mean it.

The left half of this picture is usually a corn field. The unflooded portion of the road in the middle is between three to six feet wide. The wooded areas on the picture's right side and in the background are also under water, for a total flooded area of at least 15 acres by my estimate. There is a cross-road pipe near the sign in the center of the picture, but no sign of the ditch on either side, for obvious reasons.

To the west of this bucolic scene are some folks whose homes are just a tad threatened, as this water shows no sign of abating any time soon.

Based on what we saw today, it looks like somebody might be blocking the ditch. I'll be working with my clients, the local soil conservation district, and (one hopes) some cooperative landowners to help fix this problem.

Y'see, we have this thing around here about water rights, including the right to have it go where it should. Either someone needs to be reminded to respect the right to drainage, or a new drainage easement will soon be filed in the county Recorder of Deeds office.

April 7, 2003
One down, one to go

ACLU attorneys said the sites Ms. Burk and the Rev. Jackson requested may not be ideal from a public safety standpoint, but the first amendment compels the city to grant their request.

With all due respect to the ACLU, if they truly argued that the First Amendment compelled the plaintiffs’ choice of where to protest, regardless of safety issues, then I really don’t believe that will go over well with the judge.

Faced with this kind of advocacy, Judge Bowen might just decline either to agree with the plaintiffs or to impose a compromise location.

April 6, 2003
Credit where it's due

I haven't been a big fan of Maureen Dowd's work for a while.

Today's column was a notable exception--a great remembrance of Michael Kelly.

This essay is the model of the eulogy we should all hope to receive, and which Kelly well deserved.

Link via Andrew Sullivan.

April 6, 2003
No messages, please. We’re here for the golf.

A story in the Augusta Chronicle discussed the expected decorum for the folks attending this year’s Masters® Tournament.

The rules aren’t any different from previous years, nor are they all that distinguishable from what other golf tournaments regulate. Nonetheless, these rules now take on added significance in light of the current controversy caused by Martha Burk’s apparently tireless efforts to have at least one wealthy woman obtain a membership in Augusta National.

Among the prohibitions:

Patrons will be asked to return to their cars and remove buttons, hats or T-shirts that express "any opinion, pro or con, on a social or political issue." Also, no banners, signs or flags may be displayed.

In years past, the violators of this rule tended to wear a biblical message, hidden under another shirt until they spotted a TV camera nearby. It’s safe to assume that the Augusta National staff expects a different kind of attempted signaling this year.

In addition, there are limits on what kinds of handbags can be brought onto the grounds:

Women might want to reconsider those roomy handbags in favor of a tiny tote. The club will not allow purses larger than 10 inches in length, 5 inches in height and 5 inches in depth. This is the first year club officials have defined the dimensions.

Reading about these directives reminded me how different The Masters Tournament and other golf tournaments are from another sporting event I’ve attended, for which these rules would be considered totally laughable.

I refer, of course, to NASCAR races.

The visual scene at a typical car race is a riot of hats, t-shirts, tattoos, and other means by which the fans express their opinions and loyalties. In addition, there are few if any limits on how the fans convey their sentiments in more colorful terms.

Several years ago I sat high up in one section during one of the Dover races as the late Dale Earnhardt drove by during the pre-race laps.

Almost half the stands stood up and cheered him.

Most of the other half also stood up. With a notable economy of motion, each waved a single finger at him.

None of the Dover Downs staff did a thing about it.

The NASCAR analogy to the Masters’ handbag size restriction is to limit the size of the coolers the fans can bring to the race. The 14-inch limit that was in place before September 11 was still big enough to permit the number of beers and sodas I could bring to at least a six-pack, with a little space left over for sandwiches.

A beer-to-sandwich ratio of three-to-one is about right for a 400-mile race, based on several empirical studies my friends and I performed.

I have no idea what ratio of Cokes to cheese pimento sandwiches fits a day-long event like The Masters.

Maybe I’ll find out someday.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002-2003