Dear Political Blogs: Be As Partisan As You Like, But Don’t Make Your Readers Stupid

It's a coincidence that Monsanto had the better legal argument each time, yes. Is that what you mean?

It’s a coincidence that Monsanto had the better legal argument each time, yes. Is that what you mean?

It pains me greatly when a Facebook friend (and real friend too) posts something from a right-wing or left-wing website that is ignorant and misleading, as if she has something enlightening to share. Then I am forced to point out that 1) the post was written by someone pretending to have knowledge he did not; 2) those agreeing with him and assuming he had a valid point are hanging out with like-minded partisans who reinforce each others’ happy misconceptions, and 3) that the lawyers who cheer on conclusions that can only be explained by the fact that the concluder can’t spell law, much less under stand it. This typically loses two to ten names off my Facebook friends list. Well, too bad. They should be ashamed of themselves.

The case I have in mind: a site called “Forward Progressive: Forward Thinking for Progressive Action”—hmmm, I think it is a progressive site!—attacked Clarence Thomas for his participation in the recent SCOTUS decision in Bowman v. Monsanto. The Court ruled for Monsanto in a patent case against farmers in a matter involving the reproduction of products whose patents have expired. To Dyssa Fuchs, the writer for Forward Progressive in this case, Thomas had a clear conflict of interest and should have recused himself.

She cites the judicial code, she cites the U.S. statutes, she–of course—cites her belief that Monsanto is evil, and of course, like all good progressives, she hates Thomas, who has the effrontery to be both a hard-core conservative and black. The fact is, however, that she has no idea what she is talking about. Thomas had no conflict of interest in this case, nor does he have an “appearance of impropriety” problem because someone determined to prove that he is corrupt doesn’t understand what improprieties or judicial conflicts are, or for that matter, what lawyers do.

The ethical prohibition against lawyers being involved in a case opposing a party they once represented in a similar matter is not based, as many ill-informed citizens like Fuchs seem to think, on a presumption that the lawyer will be biased toward the former client. To the contrary, the prohibition exists to protect the former client against the appearance of disloyalty (if the matter is related to the matter the lawyer once handled for that client) and confidences that the ex-lawyer could use against the former client to benefit his current one. There is no presumption of lingering loyalties to former clients in the law, at least none that can be assumed by the mere fact of past representation. Thus there are no assumed conflicts when a former corporate client is a litigant before a judge who once represented it, absent other factors. For a judge, the presumption of a bias in favor of a former client is even less logical than with a lawyer.

Lawyers don’t represent clients because they like them, because they necessarily endorse their objectives, or because they have a personal bond with them: in fact, they do a better job when none of these things are true. A genuine appearance of impropriety, as used in the judicial ethics rules, does not include a mistaken belief based on  misinformation and confusion about how the legal profession works, encouraged by partisan blogs determined to smear judges they hate. No citizen who understands what constitutes a conflict or even a reasonable appearance of one for a judge or a lawyer, or a former lawyer sitting as a judge, would see any impropriety at all.

Thomas worked for Monsanto, early in his career, as a staff attorney from 1976-1979. The chances that he worked on a matter over thirty years ago sufficiently related to one that comes before the Supreme Court now are miniscule, and the question didn’t arise at all in Bowman.  It is likely that there isn’t anyone still at Monsanto that Thomas had a personal relationship with, either. They haven’t paid him for 35 years: where, exactly, is this bias supposedly coming from?

I notice that nobody at the site is alarmed that Justice Kagan sits in judgment of cases where the U.S. government is a party, though she was Solicitor General, meaning that her client was the United States. When Kagan had personally represented the U.S. on a matter closely related to a matter before the court, she recuses herself, and correctly so. No such issue has arisen involving Thomas and Monsanto. Nor can the fact that Thomas ruled for Monsanto in the case at hand be used to impugn his integrity: all nine justices did.

The tradition that federal judges have complete discretion regarding their own conflicts is a matter for serious debate, but Forward Progressive was less interested in the general problem than the specific goal of smearing its target, Clarence Thomas. In so doing, it completely misinformed its readers regarding conflicts, legal ethics, judicial ethics, Thomas’s obligations, and the appearance of impropriety.

There is nothing wrong with a political blog trying to persuade readers to adopt its political views. Expounding on ethical duties the writer hasn’t taken the time to understand, making readers dumber and prompting them to spread their misunderstandings far and wide, however, cannot be excused, justified, or forgiven.


Pointer: Facebook

Source: Forward Progressive

14 thoughts on “Dear Political Blogs: Be As Partisan As You Like, But Don’t Make Your Readers Stupid

  1. I’ve had ever so much “fun” trying to explain what’s wrong with the facebook memes people post as if they are real arguments. I’ve got at least one friend that is usually eventually amenable to reason on any given item, but prior to that point I can count on numerous illogical “stop focusing on technicalities” style quotes AND it may not last through the next similar meme. It’s much easier to just let it go, which is usually what I do anymore. I haven’t even bothered with pointing out the flaws in various Bernie Sanders quotes.

    • I struggle with this…. I used to correct my friends constantly, but I often felt like I was nagging them into common sense kicking and screaming. Which you shouldn’t have to do, really. I ended up culling my friends list to save my sanity, which is probably not the best way to deal with that, truth be told, but it’s what I did.

  2. I would add that, in cases involving the NAACP, Justice Marshall routinely recused himself. In later years, he reversed that decision, concluding that he was far enough removed to be able to maintain objectivity. In this case, the Marshall Rule applies.

    I’ve crossed swords with Alyssa before. Not the sharpest tool in the shed. If I need to spit coffee up my nose to clean my nasal passages, I go to FP.

    That having been said, his failure to recuse in Bush v. Gore while wife Ginni was vetting candidates for the new Bush administration was so over the top that it necessarily cast aspersions on the decision. And his association with developer Harlan Crow is even more unseemly. One of the arguable bribes — I call it a retainer — Justice Thomas received on account of his ascension to the Supreme Court is the Bible of firebrand Black abolitionist Frederick Douglass, Mike McIntire, The Justice and the Magnate, N.Y. Times, Jun. 19, 2011, at A-1. In every case involving Crow’s political interests, Thomas is in his corner — even if it is a lone dissent. And then, there is the oily matter of Scalia’s little duck-hunting foray with a person who had business before his court. Scalia’s defense would have been far more persuasive, had he had enough integrity to apply it consistently.

    Alyssa forgets Frankfurter’s axiom about the clock that struck thirteen. It is true that Justice Thomas is biased toward Monsanto, but that is more of a product of his judicial worldview than any disqualifying event.

    • 1. (T.) Marshall CHOOSING to recuse himself may have been exemplary—it was not required (and those cases, as far as I can see, were substantially related to matters he had handled.)
      2. The legal profession and the courts have decided, with a nudge from feminists, that marriage and spousal activities do NOT spark conflicts. It is another legal fiction, as far as I can see, but with so many lawyers married to each other, the theory is (or has to be?) that they never discuss business/clients/issues/ cases. You can’t cheery-pick Thomas on this. The judge who decided the Prop. 8 case in California was married to the head of the ACLU! Same thing: we are ships passing in the night. I’ve lectured on this: yes, I agree, its a conflict, but its a conflict that makes activist women a liability, so we ignore it.


      3. “…Justice Thomas is biased toward Monsanto, but that is more of a product of his judicial worldview than any disqualifying event.” BINGO.

      • 2a. When was Section 455 amended? Did I miss the memo?

        2b. I don’t cherry-pick. Thomas’s ethics fails are well-publicized; those of federal district court judges, not so much. As for Judge Walker, he is gay and by definition, could not have a spouse. Ergo, 455(b)(4) and (b)(5) do not apply. (IIRC, the matter of his orientation as a source of disqualifying bias was raised by opponents, and they lost.)

        I have filed recusal motions before, and have been successful at times. If I have the resources, I have the judge tailed by a PI.

        2c. We all know that when a judge doesn’t like a law, s/he simply ignores it. “Judicial ethics” is like “jumbo shrimp” and “military intelligence.” If you tell them to simply ignore it, you are telling them to knowingly defy the law.

        3. The problem with Thomas being biased is that it is his job to overcome that bias, by virtue of his oath of office. If he couldn’t do it, he had a duty to recuse. 455(b)(1).

        • I wasn’t referring to Walker (who should have recused, as he had a clear conflict: the liberal legal ethics establishment just chose to give him a pass), but Judge Reinhardt, who refused to recuse here.

          The system says that he gets to decide, in good faith, if his biases interfere with his judgment, not you or I. I presume, while he may have been mistaken, he honestly believed that they do not. Thus he need not recuse. And since the Justices not similarly biased reached the same conclusion, you can hardly assert otherwise with confidence.

          • Even one biased judge poisons the process, as the winner is decided by majority vote. Think Bush v. Gore: If Thomas had recused, the lower court decision would have stood, and the count would have continued. Would it have changed the election? I don’t know, and we will never know. But I do know that Thomas should never have sat in that case, as the outcome will always be tainted by that act. As you often say, “it’s the optics.”

            Remember, VLT was receiving a paycheck for vetting possible appointees to the new Bush administration. Yeah, that is a direct financial interest. By contrast, the ACLU had no dog in the hunt in Prop 8, as it merely filed an amicus at the trial court level. An amicus is a friend of the court, even if it is really a friend of either the plaintiff or the defendant. I don’t see how it is that Reinhardt violated Section 455 by not recusing, because by that rule of decision, Justice Thomas would have been required to recuse in every case where the HF intervened as an amicus, even at the trial court level.

            Scalia’s wife is a pro-life activist. Should we require him to recuse in every case involving abortion rights? Section 455 provides a reasonably clear rule of decision, which Reinhardt appears to have abided by. He said that he would have been recused automatically, had the ACLU filed an amicus in HIS court — which is in keeping with the spirit of the statute. For those reasons, I fail to see where he has violated Section 455 by not recusing.

  3. My “favorite” political meme of this type is one about how capitalism hurts women. Basically, it’s a bunch of statistics without context. The statistics may even be true: every so many minutes a woman somewhere in the world dies in childbirth, worldwide there are x number of women who can’t read, etc. The implication is that these statistics represent how badly off women are in the modern world, and that this is all the fault of capitalism. I tried to challenge this meme politely and in a way that would make my liberal friend and her like-minded buddies really understand what was wrong with it, but they came up with more vacuous rhetoric. I asked if women were better off in non-capitalist societies, or in pre-capitalist European society. They said ‘Sometimes’ but didn’t even try to support this assertion with facts. I posed a challenge: ‘Look up some statistics about how often women died in childbirth 400 years ago, and how many women then could read, and then come back and tell me about how capitalism hurts women.’ The reply? ‘Why don’t you look up your own statistics instead of trying to get us to do it for you.’ They really thought I was asking them to look up that information to satisfy my personal curiosity, not because I already knew exactly what they would find: that the individual woman’s risk of dying of pregnancy/birth complications today is a fraction of what it once was, and the percentage of women who are literate today is greater than the percentage of *men* who were literate a few centuries ago. I gave up then, because I’ve got better things to do with my time, my mental energies, and my aching filaments of sanity – but this exchange has haunted me for weeks. If that’s the level of intellectual reasoning the people who propagate this Clarence Thomas meme are functioning at, I have to give them some credit: it’s a flimsy argument that’s easily taken apart, but at least I can believe whoever came up with it didn’t consciously set out to take advantage of the ignorant.

  4. Also … was that graphic created by someone outside the United States who takes a morbid interest in American legal affairs, or did some American not get the spelling-reform memo from Noah Webster?

  5. For all the wonderful things the Internet has done for us, there is one major (and potentially disastrous) negative: it has become a purveyor of lies, slime, misunderstanding, bad information. Bad data in; bad data out. It is NOT, for certain blogsters, an avenue to the truth or thought or just common everyday communications. It has been the purveyor of the BIG LIE as well. Wouldn’t it have been great if Gore had been alive in the 1930-40s to “invent” the Internet? Wouldn’t Hitler/Goebbels have had fun? And so much easier, too!

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