Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

To a glorious morning, Ethics-Lovers!

1. Bad Alito, Good Alito.  As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.

These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.

Nevertheless, the Professional and Amateur Sports Protection Act, a 1992  law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Got it.

Good decision.

2.  Curiouser and Curiouser. Missouri Governor Eric Greitens refuses to resign despite evidence that he took a partially nude photograph of a woman without her consent while they were having an affair in 2015. She was allegedly bound and blindfolded when the photo was taken, and she says he threatened to release it if she ever spoke about the affair. (Now, I would repeat the challenge (“Guess what party!)  that I offered regarding the New Mexico candidate for Congress who said “Fuck the NRA!” in his TV ad last week, except that there would be no way to guess: both parties have featured prominent elected officials who do this sort of thing, or similar, or worse. However, despite the accusation of a trolling commenter that my query regarding New Mexico’s Pat Davis was “unethical,” the public use of “fuck” in public discourse combined with the claim that the NRA is “responsible” for gun deaths takes the odds that the speaker is a Democrat near certainty. Greitens is a Repiblican, incidentally.) Grietens is taking the Clinton course, claiming that he did nothing illegal—just disgusting and the kind of conduct that high elected officials have an ethical obligation to eschew.

But I digress.

St. Louis Circuit Attorney Kim Gardner yesterday dropped the charges against Missouri Gov. Eric Greitens after the defense team announced its plan to call her as a witness. Gardner’s office then asked the court to appoint a special prosecutor to refile the felony charge of invasion of privacy against the governor.

This is a legal ethics story. Missouri’s identical version of ABA Model Rule 5.7, Lawyer as Witness, states,

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;(2) the testimony relates to the nature and value of legal services rendered in the case; or(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 4-1.7 or Rule 4-1.9.

Once the judge in the case approved the defense’s plan to call Gardner as a witness, she had to recuse herself, and, though some experts disagree, her whole office was knocked out of the case by conflict of interest. How could her own assistants cross-examine her? A special prosecutor is the correct course. It is also being speculated that the case was dropped because a search of the governor’s Apple cloud data yielded no evidence of the photograph, meaning that sufficient evidence for a conviction is lacking.

Never mind: the legislature doesn’t need a conviction to impeach Grietens, and state Republican leaders say they will try to get the Missouri General Assembly to do just that. They also called on Greitens to resign immediately.

3. Ah, yes, the old “force the other side to hurt you” tactic. Gets sympathy every time!  Some day I’m going to have to take the time to figure out how it is that the American Left became anti-Israel and pro-Palestinian. I’m pretty sure its just historical ignorance and short term attention span combined with a few high profile demagogues, excessive defense of Islam and a lot of “Think of the children!,” but I need to make sure. The efforts by the news media to make yesterday’s violence in Gaza into an Israeli atrocity is classic distorted news, but the mainstream media is following the lead of its Dark Masters, like  Democratic Party co-chair Keith Ellison, Louis Farrakhan supporter and apologist, along with three other Democrats issued a statement reading in part,

(Sorry about that missing “l” there.)

The rest of the statement goes on to blame, naturally, the President for the violence, because he finally kept the promise every President since Reagan has made to Israel about moving the U.S. embassy to Jerusalem.

Note what Rep. Ellison—the term “weasel” comes to mind—does in that statement. After casually noting that the protesters were “mostly unarmed”—meaning that some were armed, and indeed we know some were armed with lethal weapons like Molotov cocktails—he states that only imminent  threat to life justifies lethal force, as if he made the armed protesters vanish with his previous sentence. If there is a mob in which some are armed, the whole mob is a threat. If was partially on this basis that John Adams got most of the British soldier accused of murder in the Boston Massacre acquitted. The protest tactic of forcing a violent response is a well-loved page of the revolutionary’s play-book, used in Boston, at Kent State, at Harvard (I witnessed that one), in the streets of Chicago during the Democratic National Convention, by Occupy Wall Street in several cities, in Ferguson, and in Charlottesville. It always “works,” sacrificing a few martyrs for sympathy for the cause, however misguided or wrong it might be. That doesn’t make it ethical, or justify the deliberate distortion of the dynamics of such confrontations.

4. Ethical Tweet of the Week: Frank J. Fleming, Twitter satirist, tweeted…




24 thoughts on “Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

  1. From SCOTUSblog:

    “Judgment: Reversed, 6-3, in an opinion by Justice Alito on May 14, 2018. Justice Alito delivered the opinion of the court, in which Chief Justice Roberts and Justices Kennedy, Thomas, Kagan, and Gorsuch joined, and in which Justice Breyer joined as to all but Part VI–B. Justice Thomas filed a concurring opinion. Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined, and in which Justice Breyer joined in part.”

    Presented without comment.

  2. 3) I noted earlier to pay attention to those who a rabidly rushing to the defense of one of our Enemies: Iran. They are the same people rushing to trash one of our Allies: Israel.

    I wonder why this is?

    4) Bingo.

    • 3) I wonder what the Euler diagram looks like with a circle of people defending our Enemy, Iran, trashing our Friend, Israel, and celebrating the recently passed birthday of Karl Marx?

    • After a brief ethics struggle, I posted Frank’s tweet on Facebook, knowing it would prompt head explosions from my knee-jerk Leftist talking points friends.

      Did I do wrong?

      • ABSOLUTELY NOT!! It’s possible but not likely, that his comment may make a few people think. Expect Chris to defend the Palestinians, for example.

        • Expect Chris to defend the Palestinians, for example

          You’ll have to time travel to around 2012, when I was younger and still thought expressing an opinion on Israel/Palestine was a good idea.

      • Did you do wrong? Well, you know your FB friends better than we do, and whether you want to keep them as friends.
        For me, family members are more of a concern. I’ve kicked over the hornets nest more than once by pointing out what to me appeared to be hypocritical, wrong-headed, or just plain stupid posts. There are a couple of very close family members who cannot tolerate anyone questioning their views and others who would side with them.
        One example: we had our villa ‘tented’ to deal with termites. [A large tent is erected over the entire building, poison gas is pumped in, and the termites all die, as well as any other living thing inside. The next day, the tent is removed, the place is aired out, and it is once again habitable.]
        A family member asked on FB if this could be done to the White House, ‘asking for a friend’. Others joined in, supporting the idea. I commented that this was sick, even as a joke. Later, during dinner at a restaurant, the post came up, and there was a discussion that turned into a loud argument about the ethics of wishing death for the current president, one saying they hoped he and his entire family died.
        I’ve been stung by those hornets enough that I seldom comment on political stuff on FB any more, but it gnaws at me ethically to see some of the posts there and let them pass. I console myself with the knowledge, or at least belief, that I’m not going to change their minds anyway.
        So, did you do wrong by posting that tweet? I say no, if you have the kind of friends and (especially) family who welcome serious discussion and and can stand some disagreement.

  3. By-the-bye, my wife always loved “Ode To Joy” and over the course of 34 years, I came to be rather fond of it as well. Thanks for the memories.

  4. Justice Alito is no dummy, although he got it wrong in McCoy. As for the picture case, without the picture, it’s just an allegation, and that alone might not be enough for an impeachment. He’s still wrong, and should step aside for having the affair, same as Eliot Spitzer, but not because of the picture issue.

    Now, let’s talk about how the American Left became pro-Palestine and anti-Israel. I think I have talked about this elsewhere, but I’ll recapitulate. Part of it, I think, is that the left has always cast itself as standing up for the underdog: for the worker against capital and management, for average income folks against the privileged rich, and, at least from the time of LBJ, for the disadvantaged people of color against the privileged whites. The Jews, for a very long time in history, were the ultimate underprivileged class, forced to convert or be burned by the Catholic Kings and the Perfect Prince, thrown out of England by Edward I (he hated them more than the Scots), welcome here but not there in the Holy Roman Empire, restricted to the Pale by the Russians, and so on. They were a majority nowhere, and, as such, they were a perfect match to the American left and a good strong ally, since the closed nature of their society led them to come on strong with contributions, vote for whoever their community leader said to, and so on. Some drew the line at liberal groups like the ACLU advocating for the Nazis in Skokie, but largely they stayed with the left. Many were active in the civil rights movement.

    However, in 1948 the long-simmering but never acted on idea of a national homeland for the Jewish people, where they would be the majority and have the ability to run things their way, where any Jew could come if he wished to live in such a place, came to be, as Israel came into being (not without some violence against the British overseers of the Mandate, but that’s a long story). The surrounding states of Egypt, Transjordan and Syria didn’t like the idea of a Jewish state in their midst, and tried to destroy it. In advance of this move, many of the Arabs who were living in the land now known as Israel left, thinking after Israel was defeated they would just walk back in. What followed is history, and Israeli victory left this displaced population, now identifying as the Palestinians, with nowhere to go, as the Israelis didn’t want a hostile Arab population living among them, nor did the surrounding states particularly want them, especially not rabble-rousers like those that later became the PLO leadership. They WERE useful as pawns in the larger Arab-Israeli conflict, though, and both the surrounding states and the wealthy (Saudi Arabia) and the fanatical (Iran) financed their living in exchange for them being a thorn in Israel’s side that occasionally wounded them with a suicide bombing or a rocket attack. The USSR may have slipped the PLO some resources here and there and the Libyans probably provided refuge and training facilities. What the Palestinians never had, however, was an actual military force.

    This did not compute, at least not initially, with the American left. Suddenly the folks they thought of as hospitable, bearded merchants, scholars, and artisans, some of whom still dressed like they were in 19th century Russia, were kepi-wearing policemen and drab-clad soldiers putting the boots, clubs, and, when necessary, bullets, to ragged, often dirty people who called themselves freedom fighters. A lot of them didn’t ask questions, but simply sided with the new underdogs. Others actually believed the Israelis were hypocrites engaging in the same behavior that they had just suffered in the Holocaust. Still others, who were already anti-American swallowed Soviet propaganda that cast Israel, now America’s only firm ally in the region, as the villain. Add the later Israeli victories, and Israel’s reputation as a villain by nature was cemented for a large portion of the American left.

    There’s more to it now, of course. The American left has always been practical about getting votes by any means, fair or foul, and no matter whether today’s friend was yesterday’s foe or vice versa. For much of the 20th century the largely Italian and Irish unions were heavily Democratic and it was said that the Catholic Church was merely the Democratic Party at prayer. You went to the yearly Red Mass or Blue Mass or other color masses as much to hobnob with Democratic power brokers as anything else. Then came Roe v. Wade, and suddenly they could get more female voters by going pro-abortion, and they started to cater more to women voters, though it cost them among the Catholics. Time moved on, and it looked like the US was becoming less and less religious, so they played more and more to the religion-haters, to the point where God was getting booed at the DNC and their presidential candidate was accusing his foes of clinging to guns and religion.

    Now the U.S. is getting more and more Arab and Muslim refugees crying “oppression” and some of them are entering politics and producing people like Keith Ellison, who dutifully spout the party line about oppression of their people. A lot of them are concentrated in places like Minneapolis, which is already in a pretty Democratic state, but others are concentrated in Dearborn and Detroit, in Michigan, one of the places where the blue wall cracked last time out. It would not surprise me if there were many in Duluth, Milwaukee, and other places in not-too-far-from-there Wisconsin, the second of the three key lost bricks in the blue wall. The left wants power back so badly they can taste it, partly because they had it for eight years, partly because they are convinced they are right, partly because they are still in denial that the “most qualified candidate ever” lost to this orange buffoon. They are going to do whatever it takes to stack up those votes to get there, and if that means siding with Palestinian Arabs, most of whom loathe America, or importing undocumented voters from Latin America who may be more inclined to see it their way, so be it.

    Thus endeth the history lesson for today.

  5. I don’t know what to think about the Missouri Governor case. He had an affair and now that he has ended it and is the Donald Trump of Missouri, the husband of the woman claims the governor tried to blackmail her with a picture. However, he never went to the police, he went to the press. The attorney in St. Louis wrote up and indictment of the governor, then started an investigation 20 days later, and a rather unorthodox investigation at that. She hired an ex-FBI agent as a PI instead of using government employees and that ex-FBI agent is a former bigamist who was disciplined for lying to the FBI about it. She also hired a Harvard University Attorney at $12,000/month to help her and allowed him to hire anyone he wants with private funds (Democratic donors). She also withheld interviews of the victim because they apparently contained exculpatory evidence. So, there is no police report of this crime, there is no picture, and the victim is just pleading for privacy and for the investigation to end. Again, this seems so politicized and unorthodox that I really don’t know what to think.

  6. Why should the accused resign? Democrats have affairs all the time (and worse) and are not asked to resign. There is NO proof of the allegations, and it is looking like this IS a witch hunt by Democrats (again)

    The GOP has to stop shooting itself in the foot if they want to remain a viable party.

    I believe the hypocrisy is coming home to roost, where the left can get the GOP to destroy itself for misdeeds real or imagined.

    Until the tactic no longer works (or is enforced both ways) it will continue to be used.

    Trump being immune to this tactic has the left perplexed: good.

  7. 1) That this case (and the McCoy case, as well) was not a unanimous verdict is a depressing indictment on the state of our government in general, and the courts in particular.

    I mean, it’s right there in the 10th Amendment. This was a law that prohibited state legislatures from acting. As the decision says, it would be hard to imagine a more plain and obvious violation of the 10th. That we have justices on the Supreme Court who apparently need to take a remedial civics class is shameful.

  8. The alleged photo is not Greitens’ only problem. He has also been charged with using a fundraising list he illegally obtained from a charity he co-founded, then lying about it to the Missouri Ethics Commission. If anything will stick, I think this will be it. Since the very title, “Missouri Ethics Commission” is an oxymoron, don’t count on that, either.

  9. 3) My favorite was the leaked clip of a Palestinian “protestor” taking a prat fall in an area outside of danger, be picked up on a stretcher by his “brave” fellows and run in “panic” off the “field”…then after running long enough for their own cameraman to capture some “legit footage of an innocent cut down by Israelis”, the leaked footage shows the man hop off the stretcher and his four “saviors” walk casually away.

    Sorry Israel-haters, the truth is the Palestinians are led by a violent regime ELECTED by the Palestinians to lead them in violence against Israel.

    Violence in Israel will end when one group stops initiating violence.

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