Ethics Hero: Columnist George Will

George WillI just watched George Will stun the Fox News Sunday panel by arguing against virtually all conservative pundits by insisting that the U.S. should welcome the hoard of children being apprehended at the border as they accept the current Administration’s open invitation to illegal immigrants.

“We ought to say to these children, ‘Welcome to America, you’re going to go to school and get a job and become Americans,’” Will said. “We have 3,141 counties in this country. That would be 20 per county. The idea that we can’t assimilate these eight-year-old criminals with their teddy bears is preposterous.”

I think the policy that Will is advocating is foolish, wrong, and will continue to incentivize illegal immigration.Nonetheless, in giving his contrarian opinion Will demonstrated personal integrity, courage, and showed those who accuse him of being a knee-jerk mouthpiece for Republicans and conservatives that they are wrong. His independence from the right-wing echo chamber also encourages viewers to start thinking for themselves.

I pledge to give a matching Ethics Hero designation to the first liberal pundit who argues that the human weapons in this unethical “think of the children!” assault on our laws and sovereignty should be shipped home, thus demonstrating similar integrity and independence from progressive talking points.

I’m waiting.

_____________

Graphic: Mediaite

11 thoughts on “Ethics Hero: Columnist George Will

  1. He’s nuts. The vast preponderance of these “children” are adolescents… many with past and present drug gang ties. These are just a future (present now?) burden on our court and prison system; already taxed with alien criminals. The ones that are preteen belong with their parents or the child services of their own country. All Will is doing here is lending his name to the cause of people who hate America and seek its destruction through mass migration/invasion.

  2. I might think of George Will as a hero if he had not dived less than halfway into the issue. I did not see the TV show where he spoke. At most, from what I can glean, I can only temporarily consider Will a formidable, if quixotic, contrarian.

    Of course, it’s preposterous that a certain number of thousands of children, dumped on at the doorsteps of the U.S. as exploitees of multiple cynical, criminal schemes, could not be afforded some charitable treatment perhaps better than they had ever received to date – to include even the opportunity for permanent asylum from at least some of their exploiters (current political “leaders” excluded).

    But that assertion is itself preposterous for its incompleteness and for the self-blinding that is required to consider it any less than preposterous, in the face of the inevitable, assured grave harm to the greater good of a charity- and other resource-drained society that would be imposed by indefinite extension of such a catch-and-harbor policy.

  3. I would respectfully suggest that you blew this call, owing to an apparent failure to account for the nuances of Republican politics. The modern Party is a fragile coalition of three disparate factions: the Pat Robertson religious zealots, the Koch Brothers’ libertarians, and the Bush plutocrats who want cheap labor. Will has always been a shill for the plutocrats, and he always will be.

    Where you stand often depends on where you sit. For example, I would be impressed by an ethicist who makes a living giving ethics lectures to judges telling judges that absolute judicial immunity is unethical and immoral, for if he started telling judges what they needed to hear (as opposed to what they want to hear), he would stop getting calls to give lectures.

    Paychecks always trump principle.

    • Will’s position bucks every position, and his position was not made to comply with any faction f the party, of which I even doubt he’s a member. Will detested Bush, by the way. He does not espouse open borders. He is pro-child. This may arise from his empathy developed from raising a Down Syndrome son, but in any event, it’s a brave position for a conservative icon. Just wrong.

      Judicial immunity is a policy issue, not an ethics issue. I think its a close call policy-wise, but it would never come up in the context of a judicial ethics seminar (I don’t lecture.)

      Your last line is silly in its generality, and simply not true. In my particualr case, it is also unfair and irresponsible to suggest. As a legal ethics expert, I am known for reaching conclusions my clients didn’t expect or want…I have the unpaid invoices to prove it, not that I have to prove my integrity to you. And a refuse to engage with companies that just want “check box” ethics trainings of short duration (with directions “not to mention ethics.”) I give pro bono ethics prgrams to charities and non profits.

      You are cynical, your assumptions are obnoxious, and you are, quite simply, wrong. My company and conduct, as well as my determination to do this rather than more lucrative activities, disproves the “always.”

  4. As author Glenn Cook observed, “Every ounce of my cynicism is supported by historical precedent.” The first practical rule of ethics is that all ethics are situational. Even the god of the Bible is a notorious hypocrite. The judicial immunity situation is an excellent illustration of this point.

    In connection with the King case, you are asserting that utilitarianism is both necessary and ethical. That it is perfectly acceptable to sacrifice the rights of THE OTHER GUY for the (purported) good of all. But if you were the man in the dock, you might not be nearly as magnanimous. As Sen. Russell Long iconically put it, “Don’t tax you, don’t tax me, tax the fellow behind the tree.”

    Given the pervasiveness of ethical considerations in virtually everything we do, including even this simplest of conversations, it is passing strange that you would declare that immunity is a policy issue. But if we stipulate to that point, it begs the next question: Who should make that policy? Certainly not the judges, who obviously have skin in the game. The doctrine is, therefore, unethical, immoral, and illegitimate on account of how it was arrived at. The question of whether it is a good thing is, in this light, beside the point.

    Scholars like Erwin Chemerinsky and Abimbola Olofoyeku and bloggers like David Lat have expressed the opinion that absolute judicial immunity is an irrational and archaic doctrine, which should be scrapped. Even the mullahs of Tehran hold their judges accountable for willful official misconduct. (In the British system, Parliament has veto power over judicial decisions, so it is hard to say that a judge can inflict permanent damage.) I can’t even begin to mount a rational defense for the practice. But yet, you have declared that it is a good thing, and even ethical. How do you get there?

    I am trying to understand how you get from point A to point B here. That you have a facially obvious interest in telling judges what they want to hear — the unpaid bills you have actually make my point — cannot be disputed. Thus, if you cannot offer a coherent rationale for your position, the default is that you are indulging your personal interests.

    • 1. I understand the origins of cynicism.
      2. What you call a rule of ethics is in fact a rule of no ethics. Situational ethics simply means “do what I feel like when I feel like it.” Ethics is a quest for principles and concepts that allow individuals to get beyond “situational ethics”

      3. “In connection with the King case, you are asserting that utilitarianism is both necessary and ethical. That it is perfectly acceptable to sacrifice the rights of THE OTHER GUY for the (purported) good of all. But if you were the man in the dock, you might not be nearly as magnanimous. As Sen. Russell Long iconically put it, “Don’t tax you, don’t tax me, tax the fellow behind the tree.”

      Yes, because then I would not be able to render an objective ruling, because of a conflict of interest. Saying that I would not embrace the principle if it worked against me is a) not an argument for ethics, but an acknowledgment of the power of bias b) based on the assumption that everyone is a devoid of ethical integrity as you are, which is not the case, and c) irrelevant to the question of what is in society’s best interests.

      4. I am not at all certain that absolute judicial immunity is a good idea, but it is the law, and thus the courts opinion followed the law, which is based on sound principles and utilitarianism. It is a worst case scenario, and worst case scenarios always make rules look terrible (Check out discussions here of the Ethics Incompleteness Principle.)

      5. Had the court decided to carve out a special and narrow “no absolute immunity when a decision is completely undermined by the judge’s unethical and unprofessional conduct” rule, I would have judged that to be ethical as well….if it really was narrow. It’s harder than it looks.

  5. First and foremost, I question whether absolute judicial immunity is “the law,” as opposed to a judicial fiat with no foundation in law. If the Constitution is our paramount law, and a doctrine deprives Mr. King of any and all remedies for the violation of his right to a fair and independent tribunal, the doctrine is unconstitutional by definition, as judges have no colorable authority to write law inconsistent with it or its purposes. Or in the words of St. Augustine, an unjust law is no law at all.

    Second, I merely observe that in the real world, ethics is like the proverbial house made of straw. As Aesop famously observed, the tyrant will always find a pretext for his tyranny. All ethics are situational in that sense, as the only actual restraining force is the limit on one’s power. If a judge suffered meaningful punishment for his crimes — and yes, under federal law, Judge McCree committed crimes — he would be less inclined to indulge. It is not ethics that restrain, but the credible threat of reprisal.

    For this reason, I would draw the line at willful misconduct, as it is clearly defined (Screws v. United States, 325 U.S. 91 (1945)), and distinguishes between honest mistakes and properly sanctionable malfeasance. And as this rule is 500 years old, a judge cannot credibly claim that he or she is not on notice as to the limits of his power. Take the worst-case scenario: a judge sitting in judgment of his own cause. If you honestly don’t know that that is wrong, you are unfit to sit on the bench in any event.

    Third, the power of bias is overwhelming. As Lord Acton quipped, absolute power corrupts absolutely. That is the short definition of what is wrong with the American judiciary. David Lat can come out and say without guile that absolute judicial immunity should be scrapped, but he doesn’t have to sell his services to judges. Just as a practical matter, your situation appears to be more delicate. It’s nothing personal; it is just human nature.

    It would be like Martha Washington asking George if a dress made her butt look too big. 🙂

    Finally, I can’t envision a coherent legal or ethical principle behind absolute immunity. Granted, an honest judge might have to answer for his conduct, but if the Department of Justice handles the defense, the cost to the judge would be minimal, and Rule 11 limits plainly frivolous claims. Due process is always inconvenient to the overseer, and a tyrant need not countenance it, but as the lawful alternative under natural law is assassination of the judge — as your own state’s seal declares, “Sic semper tyrannis,” and the Framers’ declarations confirm this — I’m inclined to advocate a peaceful mechanism for the justly aggrieved to achieve justice. Thomas Jefferson explained this in his Notes on the State of Virginia, and it is rarely prudent to disagree with him.

    • First and foremost, I question whether absolute judicial immunity is “the law,” as opposed to a judicial fiat with no foundation in law. If the Constitution is our paramount law, and a doctrine deprives Mr. King of any and all remedies for the violation of his right to a fair and independent tribunal, the doctrine is unconstitutional by definition, as judges have no colorable authority to write law inconsistent with it or its purposes. Or in the words of St. Augustine, an unjust law is no law at all.

      There is statutory law, and there is judicial doctrine. Judicial immunity, like sovereign immunity, is rooted in common law roots of US jurisprudence. The Constitution only constrains judges to the point where other judges use it to do so. The Constitution does not cover all limitations on legal rights, nor could it. Your argument that absolute judicial immunity is unconstitutional has been powerfully made elsewhere—the counter argument, which I agree with for the most part, is that independent judging would be impossible without it.

      “Second, I merely observe that in the real world, ethics is like the proverbial house made of straw. As Aesop famously observed, the tyrant will always find a pretext for his tyranny. All ethics are situational in that sense, as the only actual restraining force is the limit on one’s power. If a judge suffered meaningful punishment for his crimes — and yes, under federal law, Judge McCree committed crimes — he would be less inclined to indulge. It is not ethics that restrain, but the credible threat of reprisal.”

      This isn’t a paragraph about ethics; it’s a paragraph that asserts that a lot of people are unethical. That’s true. It doesn’t mean that ethics don’t exist, or that many, including many in power, are capable of behaving ethically. My profession is based on that premise.

      For this reason, I would draw the line at willful misconduct, as it is clearly defined (Screws v. United States, 325 U.S. 91 (1945)), and distinguishes between honest mistakes and properly sanctionable malfeasance. And as this rule is 500 years old, a judge cannot credibly claim that he or she is not on notice as to the limits of his power. Take the worst-case scenario: a judge sitting in judgment of his own cause. If you honestly don’t know that that is wrong, you are unfit to sit on the bench in any event.

      The remedy is reversal, not damages. The additional remedy is removal of the judge. In prcatice, your exception is still subject to case by case interpretation, opening the door for ethical judges to have their legitimate and courageous decisions made the basis for expensive and time-consuming litigation.

      “Third, the power of bias is overwhelming. As Lord Acton quipped, absolute power corrupts absolutely. That is the short definition of what is wrong with the American judiciary. David Lat can come out and say without guile that absolute judicial immunity should be scrapped, but he doesn’t have to sell his services to judges. Just as a practical matter, your situation appears to be more delicate. It’s nothing personal; it is just human nature.”

      Sorry—this is baloney. Bias is NOT “overhwelming”—responsible, ethical, principled officials and citizens overcome biases every day. It is an essential aspect of being a fair and honorable adult.

      Finally, I can’t envision a coherent legal or ethical principle behind absolute immunity. Granted, an honest judge might have to answer for his conduct, but if the Department of Justice handles the defense, the cost to the judge would be minimal, and Rule 11 limits plainly frivolous claims.

      You’re dreaming. Rule 11 is completely ineffective, because “frivolous” is such a high bar. And airily dismissing Justice Department lawyers handling of thousands upon thousands of suits is flip. In addition to the fact that the judge would still be under stress and threat of financial penalties for doing her job.

      These are rare cases that need to remain annoyances in order to protect the integrity of the system as a whole. As I said—a valid utilitarian trade-off.

      • Thank you for the indulgence of your time, Professor.

        Judicial immunity is a common law rule. The Constitution is the paramount law of the land, and if judicial immunity is inconsistent with the Constitution, it is extinguished. It doesn’t matter if it has been “law” for 200 years, under your “Rationalization No. 44.” And in the English common law, sovereign immunity did not abolish Crown liability for acts of willful misconduct, as it was always waived where justice required. As Blackstone observes, “the prerogative of the crown extends not to do any injury; it is created for the benefit of the people, and therefore cannot be exerted to their prejudice.” At common law, every right had a corresponding remedy for its violation. How could the present state of affairs be fairly derived from that rational and just precedent? This isn’t so much an ethics question as it is a legal one.

        Would independent judging be “impossible” if immunity was not absolute? Chief Justice Cockburn wrote that he “cannot believe that judges . . . would fail to discharge their duty faithfully and fearlessly according to their oaths and consciences . . . from any fear of exposing themselves to actions at law. I am persuaded that the number of such actions would be infinitely small, and would be easily disposed of. While, on the other hand, I can easily conceive cases [like in McCree] in which judicial opportunity might be so perverted and abused for the purpose of injustice as that, on sound principles, the authors of such wrong ought to be responsible to the parties wronged.” Per Pierson v. Ray (Douglas dissent). Again, it is a balance of harms, and not a calculus which self-interested judges have constitutional authority to solve.

        I’m not seeing the legal “trail” from Constitution to absolute sovereign and judicial immunity. I am suggesting that it is unethical for judges to take us there via fiat, following your “rationalization 44.” I heartily agree with you: the argument is comically nonsensical.

        I would further submit that the nature of tort claims is such that suits would almost never occur. Duty, breach, causation, and damages — if every error of the egregious nature we are talking about (the McCree case, and judges sitting in judgment of their own cases) was always reversed on appeal, you would rarely have more than nominal damages . . . and nobody really sues just for fun. Qualified immunity would address honest errors, and as Lord Cockburn suggests, what you would be left with is a handful of cases. And just as the threat of malpractice suits makes doctors and lawyers practice with more care, it would also have a positive effect on the quality of justice we receive.

        While I agree that the ideal remedy would be reversal, our system doesn’t guarantee the availability of effective review. The Supreme Court has said repeatedly that it doesn’t correct even obvious errors. If that remedy was foreclosed, how can you ethically deny damages in tort?

        Is bias “overwhelming?” I would respectfully submit that it is a function of what is at stake. The judge who would lose his own home if he ruled for the other guy just isn’t going to rule for the other guy. “Ethics” are, in that sense, a paper tiger. It’s nice to talk about how the world ought to be, but expecting it to meet that lofty standard would be a formidable climb, even for Pollyanna.

        Would there be thousands upon thousands of lawsuits if judges could be held personally liable for acts of willful misconduct? Congress could step in and establish standards that would reduce the flood to a trickle, letting justly aggrieved men like Mr. King secure appropriate an remedy without opening the door to abusive lawsuits. And if the Supreme Court actually did its constitutionally assigned job of superintending lower courts, there would be so few truly meritorious cases that a conscientious judge might never see one in his lifetime. On this, I must agree with Lord Cockburn.

        (I freely grant that Congress has a hard time passing gas these days, but an existential threat like this one could motivate even them to act.)

        As for the rare cases, I can find no ethical justification for depriving anyone of a meaningful remedy for a flagrant violation of his rights. If we measure our ethics in Jesuine terms — doing unto others as we would have them do unto us — I can only know how I would feel if I were the man skewered on the point of your spear of expediency. If I couldn’t do that to me, how can I in good conscience do that to you? That one is purely an ethics issue, and that form of utilitarianism — arguably violating your Rule #3, 11, 19, 22, 31, and 44 — offends my personal sense of ethics. In managing people, I have never asked anyone to do what I would not do myself.

        • I appreciate the thoughtful comment, Steve. Points:

          1. The need for judicial immunity is far greater now, in this hyper-litigious society, then when Cockburn and Blackstone were considering the issue.

          2. I see nothing unconstitutional about judicial immunity. I can’t find any controlling authority that asserts so, either.

          3. “Would there be thousands upon thousands of lawsuits if judges could be held personally liable for acts of willful misconduct? Congress could step in and establish standards that would reduce the flood to a trickle, letting justly aggrieved men like Mr. King secure appropriate an remedy without opening the door to abusive lawsuits.”

          “Who’s being naive now, Kay?”

          4. “And if the Supreme Court actually did its constitutionally assigned job of superintending lower courts, there would be so few truly meritorious cases that a conscientious judge might never see one in his lifetime.”

          Again, naive. The Supreme Court can’t possibly address all lower court error, nor is that a good use of its resources.

          5. As explored here early and often, the Golden Rule is one of several interlocking ethics systems, and one that is perhaps less useful in law than in any other setting.

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