I write here often that we must distinguish between law and ethics, and as a lawyer, I am comfortable with the reality that a decision required by the law may be unethical, in that the results may harmful and undermine the broad goal of what a law or laws are supposed to accomplish: a healthy society, a functioning government, a safe and happy public and justice. Just as doctors need to develop emotional armor that allows them to go on practicing medicine when the operation is a success but the patient dies, so must judges learn to move on when interpreting a law as written has an absurd result, and they must allow that result to occur. I understand all that.
I still can’t understand the opinion in Taylor v. Kobach, however.Maybe someone can explain it to me with a straight face. The opinion itself is beyond reproach, clear and unassailable. The problem is that it ignores the Mastodon in the courtroom: the letter that the opinion deems sufficient to meet the requirements of the statute in question embodies a lie, and defeats the intent of the very statute that the court is using to declare the letter valid.
How can judges do that? How can they stand doing that?
Let’s review. GOP U.S. Senator Pat Roberts has lost his once formidable popularity in Kansas, and the Democrats see an opportunity to pick up a Senate seat in a year where they stand to lose several. Beating Roberts might just save Democratic control of the Senate. Roberts’ Democratic opposition, however, is Chad Taylor, and it was becoming rapidly apparent that he was likely to run third in a three major candidate race, with an independent candidate, Greg Orman, besting him. The political analysts in Kansas and elsewhere wrote extensively how Taylor’s prospects had been wounded by a discrimination suit brought against him by two former female employees, and his initial refusal to prosecute sexual harassment cases as District Attorney, citing budget cuts, had made him unpopular among women voters in the state. He couldn’t raise money and was regarded as a weak campaigner. The Democratic leadership decided that he had to be persuaded to withdraw in order to give Orman a clear shot at unseating Roberts. The leadership, including Missouri Senator Claire McCaskill, pressured/persuaded/encouraged Taylor to take one for the team, and get out. He agreed.
Note that none of this, nor any news reports, nor any statement by Taylor himself, nor the evidence of any public appearance by Taylor or statements from his staff, associates, family or friends, suggests that he is ill, handicapped, disabled or dead. This is, or should be important.
K.S.A. 25 306b(b) provides that no person nominated for any national, state, county or township office may cause his or her name to be withdrawn from nomination after the primary election, except when the nominee declares that he or she is incapable of fulfilling the duties of office if elected. Such a person must request that his or her name to be withdrawn from nomination by filing with the Secretary of State a written, signed and notarized letter. Taylor did send such a letter to the Kansas secretary of state as required, and it said, simply:
“I, Chadwick J. Taylor, Democratic nominee for the United States Senate race, do hereby withdraw my nomination for election effective immediately and request my name be withdrawn from the ballot, pursuant to K.S.A. 25 306b(b).”
The official, Kris Kobach, refused to remove Taylor, arguing that he had not affirmatively represented that he met the requirements of the statute, that he was in fact unable to serve. That he was motivated to do so by the fact that he is a partisan Republican dedicated to re-electing Pat Roberts is hard to deny (though Kobach denies it), but I share his objection to the document. It’s an exercise in deceit. Taylor is a lawyer, and he can’t lie on an official document without violating his ethical obligations. Signing a false assertion on a notarized document is grounds for suspension of his legal license or disbarment, which is not a good career move for a prosecutor. As I have already noted, if Taylor is really disabled, no one, including him, has said so….because he isn’t. Kobach believes, I think correctly, that Taylor chose the weasel words “pursuant to K.S.A. 25 306b(b)” to avoid actually having to write “because I am unable to serve as U.S. Senator if elected.” That would, I believe, put him in jeopardy of bar discipline.
The Court ruled that since the statute laid out the conditions for withdrawal, “pursuant” was sufficient to constitute a valid request to be removed under the statute. This is technically true, except Taylor isn’t unable to fulfill the duties of the office he’s running for, everyone knows he withdrew because his party forced him out, and thus the law, which the Kansas Supreme Court is supposedly enforcing in this decision, is being violated by the very letter that it rules meets the requirement of that same statute. The words meet the requirement for the letter, but Taylor’s claim that the Court has ruled is being properly asserted by the letter is 100% false.
Shouldn’t a court ask for more? Shouldn’t a court be troubled by the fact that the “plain meaning” of the law is being defied even as the language required by the law has been adequately employed while defying it? Doesn’t a lawyer carefully trying to lie as subtly as possible to pull off a political switcheroo justify some expression of judicial contempt?
The court’s decision says that the law has been broken in compliance with the law. It also shows that Taylor has breached the legal ethics rules, and seriously so, by claiming on an official, notorized document what he knows to be false, but doing it with sufficient compliance with the statute that the Kansas Supreme Court ordered the secretary of state to remove him from the ballot for asserting that he is unable to serve to the minimum extent required by the law’s “plain meaning,”even though everyone, including the members of the court, know that he is able to serve, violating both the intent and the plain meaning of the statute’s expression of that intent.
I don’t think I’ve ever seen such a blatant judicial endorsement of a violation of law.