Republicans are sounding an ethics alarm tonight.
“Obama Now Selling Judgeships for Health Care Votes?” shouts the Weekly Standard website, and it’s clear The Standard thinks it knows the answer. After all, as the President was meeting with ten House Democrats who voted against the health care bill in November, the White House sent out a press release announcing that Obama had nominated Scott M. Matheson, Jr. to the United States Court of Appeals for the Tenth Circuit. And the nominee’s brother, Rep. Jim Matheson of Utah, is one of the recalcitrant ten.
Hmmmm. Looks shady, no?
Well…no. Not based on what we know now, anyway. There are many ways this scenario could be unethical, and just as many ways that it could be within generally accepted standards of political maneuvering, depending on facts not in now our possession.
The most clearly unethical set of facts would be this:
Rep. Matheson, who firmly believes that the current heath care reform bill is too expensive and otherwise bad for the nation and his District, offers to vote against his conscience and duty to the voters in exchange for President Obama appointing his brother Scott to the Tenth Circuit. Scott is incompetent, but also has agreed to forgive a large personal loan his brother can’t seem to pay back in exchange for the appointment. The President agrees, willfully damaging the integrity of the judicial system in order to win the health care vote.
On the corruption scale, this would rank at close to a 10.
What would be the least unethical scenario? Something like this:
Obama is considering several qualified candidates for the opening on the United States Court of Appeals for the Tenth Circuit. Among them is Scott Matheson, and he is one of the front-runners for the job. Obama’s aides say, “Hey! His brother is one of those House Democrats that we need to convince. If you go ahead and appoint Scott Matheson, that may put brother Jim in a better frame of mind to yield to your great powers of persuasion. It’s simple cognitive dissonance—I was just reading about it on this cool blog called “Ethics Alarms.” So Obama does appoint Matheson, who before agreeing to accept the honor gets Obama’s assurance that he has earned his appointment by his record alone, and not because of a deal to win his brother’s vote. “Of course,” says Obama. “But if we get a good judge and health care too, I won’t be complainin’.” And they share a good laugh. Rep. Jim is thrilled to hear about his brother’s good fortune, but tells the President, “You know this will have no effect on my vote. I will do what I think is in the public’s and the nation’s best interests.” “I wouldn’t want it any other way,” Obama replies. And they share a good laugh together too.
That scenario, admittedly too good to be true, would rank close to a zero on the corruption scale. Between the worst and the best, there are too many variations to count, depending on the answers to such questions as:
- Did Rep. Matheson suggest the appointment of his brother as a quid pro quo, or did Obama suggest it?
- Was the brother a viable candidate for the appointment before the health care bill reached this critical stage? Might Obama have appointed him anyway?
- Does Jim the Congressman even like his brother, or care about his career advancement? Is there reason to believe he would put his brother’s judgeship above his own principles, integrity, and duties as a Congressman?
- Does Jim owe his brother money, or does Scott have any power over Jim for other reasons?
- How will Jim Matheson vote? Does Scott favor the health care bill?
We only know the answer to one of these questions right now: the Standard reports that Scott Matheson does indeed appear to be qualified to sit on the Tenth Circuit. But the rest? Pure speculation, especially until we see how Matheson votes. Obama can’t realistically pull back the appointment if the Representative holds fast to his original position. If Matheson had changed his vote and backed the bill for no apparent reason, and then Obama appointed his brother, a presumption that there had been a deal would be reasonable, though far from proven. The current sequence of events, however, is ambiguous, and conceivably ethical.
The Republican alarmists might well be proven right. As of today, however, the ethics alarm is premature. Even politicians sometimes deserve the benefit of the doubt.
Ethics Alarms 
I see your point but usually where there’s smoke, well you know the rest. If it doesn’t reek of an ethical violation it at least reeks of incompetence.
If the Rep still votes no, then it all disappears, right? Is appointing the brother as a suck up move unethical, or just, as you say, incompetent? Understand: I think the odds favor a stinky pay-off here. But the GOP is jumping the gun.
Was the brother a viable candidate for the appointment before the health care bill reached this critical stage? Might Obama have appointed him anyway?
Shouldn’t this threshold be a bit higher than “viable?” I would personally prefer that he would have been on the administration’s list of possible appointees. Theoretically, almost any lawyer with significant experience would meet the threshold of viability.
It is possible that there is no “there” there in this case. You have to admit, though, the dots are there, begging to be connected. I think the Republicans are right to ask the question, but wrong to demagogue it as though it were holy writ that Obama was trying to engage in unethical behavior absent more proof than I’ve seen.
Another question I don’t know the answer to: Was the administration forthcoming about this connection, or did they try to hide it?
Viable was a bad choice of words on my part. Qualified, worthy…all judge appointments are political to a greater or lesser degree. How often is the objectively “best” judge chosen? Not often. Here’s one: what if Scott was the objective best but only got considered because of his brother?
Regarding the Administration: the White House released the appointment the DAY of the meeting with the ten, so it actually timed the press release to maximize the connection. Marc Levin, for some reason, thought this was the clincher, that the WH did this specifically to send a message to the Rep. Huh? The guy’s his BROTHER…I think Scott would have let Jim know about the appointment pretty quick, no? If not, they aren’t close enough for this to be an issue. I think Obama released the appointment immediately as damage control.
Pingback: Premature Ethics Alarm on Obama’s Judicial Appointment, Day 2 « Ethics Alarms