Morning Ethics Warm-Up, 10/5/18: The Brett Kavanaugh Nomination Ethics Train Wreck STILL Keeps Rolling Along, But There’s Always Baseball, So Hope Survives

Good Morning!

1. Ethics Dunce, Brett Kavanaugh Nomination Ethics Train Wreck Division: Retired Justice John Paul Stevens, who has already set a record for Supreme Court justices making post-career foolish statements that undermine their reputations, just violated a previously unbreached principle of professional ethics and protocol for ex-Justices. He told a private group that Kavanaugh doesn’t belong on the Court because of his “temperament.” I was thinking of ranking the rapidly proliferating bogus excuses for voting down Kavavaugh (I posted this instead). The temperament one is near the bottom of the barrel, in a layer or two above throwing ice and the comments in his yearbook. In his entire judicial career, there have been no incidents of unprofessional temperament or demeanor, and somehow I think that if any sitting judge was accused of being a rapist by a witness or a lawyer in his courtroom, an outburst of anger would be considered excusable. It’s a bad and unfair “gotcha!” argument by Democrats, but even it it was valid, Stevens is not supposed to be commenting on who belongs on the Court….just as Barack Obama should not be attacking his predecessor after George W. Bush was so exemplary in not attacking his successor.

2. Weird baseball ethics. I meant to include this one yesterday. In the Colorado-Cubs wild card play-off game, runners were on first and second with one out when a slow bouncer was hit to Rockies third-sacker Nolan Arrenado just as Cubs runner Javy Baez approached him on the way to third. Arenado tagged Baez out, and Baez wrapped his arms around him. Meanwhile, the runner on first went to second, and the batter reached first. Arenado smiled and disentangled himself, but he didn’t–couldn’t—throw to either base for another out.

It was absolutely interference. A runner can’t do that, but the umpires didn’t call it (the double play would have been called without a throw, and the inning ended), so the frame continued.  The game was close, and if the Cubs had scored (they didn’t) that inning, it would have been because Baez broke the rules and the umpires didn’t notice (or care). The announcers opined that Arenado didn’t “sell it,” that if he had violently pushed Baez away and tried to make a throw, interference might have been called. Instead, he smiled and treated Baez’s hug  like a sentimental show of affection.

Once upon a time, before player unions, huge contracts and routine fraternization, no player would have expressed friendly amusement as Arenado did. Nolan is the Rockies best player, and he stopped concentrating on the game. Only moral luck stopped it from being a disastrous lapse.

3. Disturbing but true. It has long been my conclusion that America needs a compelling leader to fight off the corrupting forces of the increasingly totalitarian-tilting, anti-capitalism, anti-democracy, anti-free speech Left, and that the figure selected for the job is so inappropriate and loathsome that he may accelerate the nation and culture’s headlong plunge into a tribal hell by making the Presidency, democracy and our institutions seem ugly…you know, the  cognitive dissonance scale at work.

Ideologically schizophrenic Times columnist Bret Stephens—sometimes he sounds like the lonely conservative pundit he was allegedly recruited to be, sometimes he sounds like he has Stockholm Syndrome, had an interesting take this week. He begins,

…I’m grateful because Trump has not backed down in the face of the slipperiness, hypocrisy and dangerous standard-setting deployed by opponents of Brett Kavanaugh’s nomination to the Supreme Court. I’m grateful because ferocious and even crass obstinacy has its uses in life, and never more so than in the face of sly moral bullying. I’m grateful because he’s a big fat hammer fending off a razor-sharp dagger.

Then Stevens cites eight episodes along the Brett Kavanaugh Nomination Ethics Train Wreck (“Will a full-bore investigation of adolescent behavior now become a standard part of the “job interview” for all senior office holders? I’m for it — provided we can start with your adolescent behavior, as it relates to your next job.”) to track how he reached his epiphany, which is this: “I’ll admit to feeling grateful that, in Trump, at least one big bully was willing to stand up to others.”

Of course in other matters, like in dealing with Iran, North Korea and the Resistance News Media, the President has also played this role. I don’t believe this virtue outbalances all the bad stuff, but there is no question that it is a virtue.

4.  Legal Ethics Reminder: Lawyers must get approval from clients before taking material action that reflects on a clients’ credibility.

Sarah Gonzalez, A conservative female TV producer in Texas posted this on Twitter. It is a strong argument. Did any lawyer NOT assume that Ford was involved in the decision to withhold requested documents from the FBI? She had to be, under the ethics rules governing her lawyers. And that action was inconsistent with her stated intention, but very consistent with the partisan goal of delaying the vote and complaining about the FBI investigation when it turned up nothing.

Here is her tweet-stream:

I believed Dr. Ford experienced sexual assault at some point in her life. After reading the letter her lawyers sent to @ChuckGrassley yesterday, I don’t believe her anymore. At the beginning of her testimony, she said: “My motivation coming forward was to be helpful and to provide facts about how Mr. Kavanaugh’s actions have damaged my life… It is not my responsibility to determine whether Mr. Kavanaugh deserves to sit on the Supreme Court, my responsibility is to tell you the truth.” But yesterday, her lawyers stated they would not provide requested documents to the FBI that would support her testimony. They would hold on to them in an effort to strong arm the FBI to interview her (even though she had already been interviewed under oath).If Dr. Ford’s goal was truly as she stated above, that she wanted to be helpful, she would have handed over the documents so the FBI would have the “facts.” If you’ve already put your name out there and testified in front of the whole country, and it was true, you’d cooperate.

Then I thought maybe her lawyers were keeping information from her (e.g. her confusion upon being told the committee offered to come to her so she didn’t have to fly). But that would mean that she hadn’t been watching any coverage, she would have had to have been sequestered. Unless they threw her in a locked room with no access to the media and no communication with the outside world, there’s no way she didn’t know the FBI was requesting documents for their investigation, which means she was involved in the decision to withhold the documents.

And that’s not something a survivor of sexual assault would do if her intention was to “be helpful and provide facts.” It’s just not logical. And it’s a disgrace to sexual assault survivors who do speak out.

14 thoughts on “Morning Ethics Warm-Up, 10/5/18: The Brett Kavanaugh Nomination Ethics Train Wreck STILL Keeps Rolling Along, But There’s Always Baseball, So Hope Survives

  1. As I live in Colorado, I was glued to my couch during the Rox-Cubs game from 1st pitch to the end of the 13th. I was watching everything like a hawk and when that happened, I accepted it. Nolan was extremely focused on getting the tag on Baez who, it seemed, could have pulled some voodoo magic and dodged a simple swat of the glove. Nolan wasn’t going to muff the tag and got entangled in more than a routine tag. I also felt that if both players immediately separated and gave Nolan the best of circumstances that he was going to forego the throw…and he knew it too, which is why he was quick to end play.

    Honestly, the only way forward for Nolan would have been to use a shove for the tag and I don’t know if that’s frowned upon. As it stands, I felt in the moment that it was a fair call by the umps, but also would have welcomed the advantage of another out.

  2. So Kavanaugh will or will not be a Supreme Court Justice tomorrow and we can put the outrage behind us for a day’s break until it’s time for the Left to fly into an outrage over something else.

    Let’s see… Columbus Day is right around the corner… that’s a favorite day for Leftists to be outraged.

    • He will be—in part because John McCain isn’t around to cast another surprise “screw you, Trump” vote out of spite. But “the resistance’ is going to go crazy and not move on, even though this whole mess has been a disaster for them and an (unearned) bonanza for Republicans.

      • Looks like the primary lesson the Democrats are learning is manifesting in the scapegoating of lead smearmaster Michael Avenatti. Good job guys. Yeah, he was a key element in making you all look bad. But the lions share of blame here rests *fully* on Senate Democrats…not a single one of whom has chosen an introspective route post-Kavanaugh.

        The next biggest responsible element is… of course… the media AND the leftwing laity, who willing whip up and allow themselves to be whipped up into completely unnecessary frenzies.

        But yeah, as cool as I am with watching Head Clown, Michael Avenatti get his comeuppance, he isn’t the one to blame here.

  3. You can disagree with Retired Justice Stevens’ views on Brett Kavanagh but in my book you are wrong to call Stevens’ unethical for expressing his view, providing he honestly believes what he says and is not acting out of malice. As a retired Supreme Court Justice, Stephens has a considerable responsibility however to be careful with his words. But if he really believes what he says (that Kavanagh doesn’t have the necessary temperament) then arguably he would be ethically at fault not to make his views known. How he should do that is not an easy question, but given his considerable seniority and standing he should have had ready access to the appropriate channels. Whether he used them or not is unclear.

    • Justices don’t comment on Supreme Court cases or business once they retire, Andrew. That’s the norm, and the left claims to care about “norms.” The principle is that it harms the public faith in the Court if ex-members are second -guessing the institution. That’s why its virtually never done.

      Of course, Stevens’ opinion was also stupid, as I explained in the post about the professors’ letter making the same idiotic argument.

      • Yes, and Stevens could reasonably have held that in his opinion it would harms the Court even more so to confirm Kavanagh. Maybe in your view wrong, even ‘stupid’, but not unethical to express such a view.

        Sadly I think this saga has done enormous damage to the Court. The separation of powers between the ‘executive’ and the ‘judiciary’ is crucial for the running of decent society. And to realize how much Kavanagh was coached and scripted by the White House is simply awful. Goodbye any faith in integrity. With your professional experience Jack you could have warned us we were watching theatre, and not to take the grimacing and tears quite so seriously.

        • The institution long ago decided that the conduct of undermining the current court by an ex-Justice second-guessing was harmful. Your argument is negative-professional ethics. A lawyer can’t decide that in THIS case, it’s Ok to betray a client. As a member of the profession, he doesn’t have that discretion. And Stevens doesn’t have the right to just ignore his profession’s centuries’ old protocal because he feels like its a good idea.

          What coaching do you think you’re talking about? Every nominee since Bork has had handlers to help him navigate the politically perilous hearing process. How does that interfere with the separation of powers? What a bizarre theory.

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