A recent—and off-topic—comment caused me to begin thinking about “The King’s Pass,” #11 on the Ethics Alarms Rationalization hit parade,and perhaps the most perplexing of them all. The commenter referenced the 2010 discovery that Supreme Court Justice Clarence Thomas had inexplicably neglected to mention his activist wife’s annual income on his annual financial disclosure filings, meaning that he had filed a false affidavit and violated the law. Thomas claimed that he had made a careless mistake—for five years—and the matter was allowed to drop except for the angry agitating of the Anti-Clarence Thomas Furies, who are constantly searching for any way to get a conservative black justice off the Supreme Court short of assassination.
The episode had left a bad taste in my mouth, and I was happy to be reminded of it, bad mouth tastes being essential to triggering ethics alarms. I went back to read my post on the matter, and sure enough, I had followed the principle of rejecting The King’s Pass, and asserted that Thomas should be punished appropriately and formally…but that really ducked the question. Lawyers have lost their licenses to practice for single episodes of swearing to false information when it was far more obvious that a mistake had been made than in Thomas’s case, as when a hapless Maryland lawyer carelessly signed a legal document that had misrecorded his address. The logic of this no-tolerance ruling was that a lawyer, above all people, should never swear to a falsehood, and that doing so, even once, was a serious breach of duty calling into question his fitness to practice law. I think the penalty for this particular act was excessive—it is cited locally as a cautionary tale—but I agree with its underlying principle, which should apply with even more vigor when the lawyer in question is a judge, and not merely a judge, but a Supreme Court Justice.
The King’s Pass is described on the Rationalization List thusly..
11. The King’s Pass, The Star Syndrome, or “What Will We Do Without Him?”
One will often hear unethical behavior excused because the person involved is so important, so accomplished, and has done such great things for so many people that we should look the other way, just this once. This is a terribly dangerous mindset, because celebrities and powerful public figures come to depend on it. Their achievements, in their own minds and those of their supporters and fans, have earned them a more lenient ethical standard. This pass for bad behavior is as insidious as it is pervasive, and should be recognized and rejected when ever it raises its slimy head. In fact, the more respectable and accomplished an individual is, the more damage he or she can do through unethical conduct, because such individuals engender great trust. Thus the corrupting influence on the individual of The King’s Pass leads to the corruption of other others through…
11. (a) “I deserve this!” or “Just this once!”
Especially common to the hero, the leader, the founder, the admired and the justly acclaimed is the variation on the Kings Pass that causes individuals who know better to convince themselves that their years of public service, virtue and sacrifice for the good of others entitle them to just a little unethical indulgence that would be impermissible if engaged in by a lesser accomplished individual. When caught and threatened with consequences, the practitioner of this rationalization will be indignant and wounded, saying, “With everything I’ve done, and all the good I’ve accomplished for others, you would hold this against me?” The correct answer to this is “We are very grateful for your past service, but yes.“
I still hold to my conviction that the King’s Pass is unethical, and that the justification for it a rationalization for unequal treatment, privilege, and bias. This requires an acceptance of the principle that ethical considerations should trump non-ethical ones except in the most desperate and unique circumstances, where we would be metaphorically cutting off our nose to spite our faces. Would we really want to court-martial a critically important general during wartime for sexual harassment? Eisenhower refused to court-martial General Patton for slapping a wounded soldier, an act that would have shipped most officers home. Was that ethical leadership by Ike, given his primary duty of winning the war, and Patton’s value as a means of achieving it? (My father, who served under Patton, always argued that Eisenhower should have removed him from command.)
I will argue until the day I visit the Big Ethicist in the Sky that removing Clinton from office for lying under oath, engineering a cover-up and obstructing justice would have been the correct course, because his actions were intentional and calculated, undermined respect for the office and implicated his trustworthiness. Would it be good ethics and good policy to impeach a Supreme Court Justice for a (pick one) clerical error, mind-boggling carelessness or a useless, meaningless and pointless lie? Maybe. Maybe the message, the lesson and the cultural integrity is worth the loss. Maybe.
The justice system encourages the King’s Pass by allowing an individual’s value to the community and past good (or bad ) deeds be factored into sentencing. I am not sure this old and thoroughly accepted practice is right or good for society, even though in a particular case it may have clear societal benefits. Clarence Darrow, as I think I have noted here before, almost certainly bribed two jurors in a 1911; he was caught red-handed. Yet he escaped conviction by arguing to the jury, essentially, that they knew he was a champion of the weak and underprivileged: would society be better off with him in jail, or better served by having him fighting the good fight? They chose not to convict him, and because of that example of jury nullification, Darrow fought for science and freedom of thought in the Scopes Trial, and made his powerful argument against the death penalty while saving two young men from the gallows in the Leopold and Loeb case, and in every way made that Kings Pass, which was his not guilty verdict was, seem like a wise decision.
Consequentialism: that it worked out well—so well that Darrow’s near brush with professional annihilation was forgotten—doesn’t mean it was right. (And who knows if he bribed other jurors?) I keep coming back to the unavoidable conclusion that the King’s Pass makes equitable treatment and standards illusory, and encourages arrogance, “ethics balancing” (you can balance a bad act with a good one, and have a clean slate), racism, class advantage, bias, corruption and privilege that rots public trust. Celebrities, elected officials, national heroes and leaders, no matter how valuable they are when they are doing the right things, have to pay the same price as anyone else when they do wrong…and part of the wrong is breaching their duty to set a positive example, meaning that they deserve harsher punishment, not leniency.
If we believe this ethical principle, however, and reject the King’s Pass completely, it means that we must be willing to live with the practical results of it: suspending the star quarterback before the big game, sacking the management whiz who is turning the company around, impeaching the perjuring and popular President.