Comment Of The Day: “The Complete List Of Rationalizations To Excuse Justice Thomas’ Gross Betrayal Of Judicial Ethics, And Other Updates (Part II)”

I briefly considered slapping my name on this terrific comment by Extradimensional Cephalopod and posting it, but as Richard Nixon memorably said, “That would be wrong.” Here is his Comment of the Day on the post, “The Complete List Of Rationalizations To Excuse Justice Thomas’ Gross Betrayal Of Judicial Ethics, And Other Updates (Part II)”:


Stipulated: In theory, the ethical course of action is for Justice Thomas to resign, because the institution of the Supreme Court functions based on the assumption that the justices are not corrupt, i.e. they do not accept incentives to influence their decisions. Anything that introduces serious doubt about that assumption damages trust in the court’s integrity, and is unethical.

Ethics does not exist as a set of arbitrary rules. The purpose of ethics is that it puts a society in a better position in the future. For Justice Thomas to resign would demonstrate a measure of good faith on his part (albeit diminished by having gone on the trips in the first place). It makes a statement that conservative justices value trust in the Supreme Court as an institution more than they value a political advantage. It indicates they will respect progressive justices for stepping down in a similar situation, that they would not press a political advantage which might incentivize progressive justices not to do so.

The reason that some people feel it is more desirable for Justice Thomas to remain on the court is because it seems like a critical short-term measure, a stopgap. If the point of ethics is to build the trust that allows society to function at its best, it seems to them that starting with this situation would build very little trust at the cost of sacrificing political power* to people who are perceived as destructive and unreasonable. If you apply ethics as you would in an ethical society, and it has a heavy short-term cost because of unethical actors, you had better be sure your sacrifice is helping set up some long-term change towards a more ethical society, or it’s a pointless gesture.

Because humans treat politics as a high-stakes game, they feel that losing is worse than cheating (corruption) even though cheating damages the game and brings the game closer to an outright fight (turmoil). Because each side cheats and knows the other side is also cheating, the cheating has a tendency to slowly escalate. Welcome to the iterated prisoner’s dilemma, as played by people who have never learned what that is.

A long-term response is to eschew cheating at the risk of possibly losing the game, because it preserves the integrity of the game and avoids a fight. A short-term response is to cheat to avoid the immediate risk of losing, at the long-term risk of a fight.

However, the choice between short-term and long-term solutions is a false dichotomy. Long-term solutions don’t work if people feel they cannot afford the up-front costs they require, and no amount of short-term solutions laid end to end are going to lead to a world we’d be proud of. Humans have a nasty habit of pushing one and ignoring the other, instead of figuring out short- and long-term solutions that are mutually compatible. From an outside perspective, it’s rather infuriating.

If Justice Thomas were to step down, we should make sure it contributes to trust in its institutional integrity and figure out a replacement justice who would have bipartisan approval. Otherwise, we should be working to build trust somewhere, even if it’s not in the Supreme Court at the moment.

For those afraid of losing the current game, go ahead and do what you feel you have to do. But while you’re doing that, you need to work on setting up a different game. I won’t say this game was unethical from the start, because the stakes were never meant to be this high. When people started awarding the winners more spoils at the cost of everyone else, that’s when the game began to warp beyond recognition under the pressure of collective desperation.

If you want a system that people trust, one that rewards honesty and diligence, you need to make sure that those on the losing side of a conflict don’t have a reason to fear the consequences. (Sometimes that means going the extra mile to help them overcome their fears. It’s worth it.)

*Part of the problem is that the Supreme Court has any “political power” at all. I blame Congress for being incompetent at writing laws, and by extension I blame the voting public for not organizing to demand better legislators.

15 thoughts on “Comment Of The Day: “The Complete List Of Rationalizations To Excuse Justice Thomas’ Gross Betrayal Of Judicial Ethics, And Other Updates (Part II)”

    • There is a real fear, and I think it’s a justifiable fear, that the courts are our last effective non-violent barrier against totalitarianism and if the majority of the Supreme Court shifts heavily to the side that’s actively supporting the irrational social justice woke then the Constitution will likely fall.

      do you remember Rosemary Lehmberg?

      Here is a link to a thread on another forum.

      Your appeals to “common sense” do not impress me. Give me a good reason why a moral failing, which incidentally has nothing to do with investigating corruption, should automatically disqualify a person from holding office. You assert without cause that this is the case. Please provide evidence that Lehmberg’s DUI has harmed the PIU’s integrity in any way. If you can’t do this without repeating some version of your “DUIs are rly bad guys” silliness, then maybe you should just go away.

      – Maraxus

      Keep in mind that Maraxus was posting to defend the indictment of Rick Perry (which jack had blogged about).

      Jesus christ. Did you even read the article Chait wrote? He handwaves away the misuse of government powers charge by saying that it’s “hard to say” why a governor defunding an independent judicial agency for the flimsiest of reasons would be a “misuse” of the gubernatorial veto. Like, that’s literally all the analysis he has on that count. The whole reason behind the abuse of power charge is that Perry used ill-defined and ill-tested powers as governor to unduly influence a state agency that is by its very design supposed to be independent. Perry’s not supposed to be able to fire, or threaten to fire, or even hint about threatening to fire Lehmberg.

      – Maraxus

      And as for The Hammer, that’s true. He did get his conviction overturned by the Texas Supreme Court, an elected body that consists almost entirely of conservative Republicans. They didn’t think DeLay actually did all that stuff, and Texas doesn’t really have much in the way of campaign finance laws anyway. It makes no matter, though. He was still a cancerous growth on Congress’ asscheek, begging for a public fall from grace. And when he got convicted the first time around, we as a nation are better off for it. Ronnie Earle did humanity a favor when he realized that DeLay broke campaign finance laws, and he did us an even greater one when he got DeLay convicted. Whether or not “justice” was actually served against him isn’t so important. The fact that he no longer holds office though? That’s very important.

      – Maraxus

      Of course! And the people on the Travis Commissioner’s Court would have tossed Lehmberg out on her ass a long time ago. They’re not doing it because there are, frankly, more important things at stake. In a state like Texas where the GOP has historically run roughshod over the Dems, they cannot afford to lose powerful positions like this. Considering the number of cases coming out of the PIU,

      – Maraxus

      “Maraxus’s” ideals were adopted by the Democratic Party. There is no denying it.

  1. Well argued point. The conundrum occurs when acting ethically is treated as a strategic weakness.
    Trust is something that must be earned so it is incumbent on progressives to tone it down and start arguing from the point Jack is making instead of simply wanting Thomas’s head on a pike. They must also demonstrate reasonableness by not stonewalling investigations into members of their party,
    When trust and integrity are considered valuable everyone needs to be singing from the same song sheet.

    • Chris Marschner wrote, “The conundrum occurs when acting ethically is treated as a strategic weakness.”

      That’s quite a statement and it seems like that’s how the political left has been seeing it since at lease 2016, if not before.

      • Do you remember the Rick Perry indictment?

        He was indicted for abuse of power, on the argument that using the threat of a veto to pressure Rosemary Lehmberg to resign was abuse of power.

        What did Rosemary Lehmberg do?

        Drive drunk.

        She was head of the Public Integrity Unit.

        the indictment of Rick Perry proved that there was no duty for Lehmberg to resign.

        Now, if a prosecutor Michael McCrum and that grand jury said that Lehmberg did not have to resign, why should Justice Thomas resign?

    • They won’t. On a practical level they want to keep as much of their own people in power while forcing as many of the other side from power as they possibly can, and if they were to stop stonewalling investigations and turn on their own people when they did wrong that goal would be compromised. They know a lot of Americans are quite easily persuaded to go along with whatever their party says, so there’s no reason for them to really provide moral leadership.

      Secondly, there are many many Democrats who are true believers and believe that their side is completely right on all things, or at least totally right on the most important things, and that’s all that matters. After all, what value is there to a bunch of racist gun fetishists who want to force women to give birth to unwanted children?

      Despite what the Democratic party may say, they are just as hateful racists as the other side. In some ways they are worse, because they single out one group: white men, as the target for their hate and blame for everything wrong with society and all the problems we’re experiencing now. How is that any different than the Nazis singling out the Jews as the one group responsible for all of Germany’s problems and the one group that should be wiped out towards the goal of being judenrein (Jew-free)?

      I said once that I didn’t see a lot of difference between a lot of the Nazi slogans and a lot of the current liberal slogans. There’s not a whole lot of real estate between “white privilege” and “reparations” and “the confiscation of ill-gotten Jewish wealth.” There’s really not a whole lot of space between cancel culture and the jailing of political opponents for trivial things. There’s not a whole lot of difference between treating a banner stained with the blood of a few relatively unimportant racist jerks as an object of worship and treating a career criminal who just happened to die at the hands of a police officer as a saint.

      I think I remember, when I was in college, a concept called “liberating tolerance.” I understood it to mean the discarding of objectivity in order to advance the priorities of your side while pushing the priorities of the other side out of reach. That idea has now caught on fully with the left.

      I fully agree that this shouldn’t be. A lot of things shouldn’t be. However, we have to play the hand that we’re holding, not the hand that we wish we had been dealt. The left has shown that many unethical practices, such as attacking the other side’s misdeeds while minimizing your side’s misdeeds, such as weaponizing the hatred of those different, such as silencing those who disagree and preventing them from defending themselves, such as indoctrinating the next generation with toxic hatred almost from the get-go, and a bunch of other practices I could list, are effective. If we aren’t going to use the same tactics, and maybe even get better at using them, then we might as well just all proceed to the nearest police station and turn ourselves in, just like many people said should happen after the 2008 election.

  2. EC,

    Kudos!! I have been wrestling with many of these thoughts since the news about Justice Thomas was revealed, but there is no way I could write about them the way you did. Yours was an outstanding effort and I thank you for it.

    Your entire paragraph about people treating politics as a high-stakes game was spot-on. Each side uses the misdeeds of the other – whether real or perceived – to rationalize their own decision to act unethically. And the mantra is always the same: it’s some form of “democracy is at stake” or “the republic is at stake.” Every political issue is couched as a “must-win” for each side, and that end justifies whatever means we deem necessary.

    So we have these two sides, standing at either ends of the field, staring at each other, unwilling to compromise and 100% willing to use whatever means possible for their side to win. In the middle is a vast wasteland of stench and rottenness, the end result of capitulating our standards, our morals, our ethics, our decency, and in many cases, even our willingness to associate with someone from the other side. It’s the collateral damage of our obsession with winning.

    This is tragic…and it needs to end. One side isn’t going to destroy the Republic…both sides working in concert will.

    I was at church this morning and on the way home, the ancient Biblical story of three young Jews came to mind. Given the choice of compromising their standards to please a tyrant king or facing a horrible death, the prophet Daniel records the three men telling that king, “The God we serve can save us from the death you hold over us, but even if He doesn’t, we will do what is right.”

    Oh, that people on the Right would say, “We face a difficult decision regarding Justice Thomas and the consequences of making the right choice may be significant, but even if they are, we will do what is right.”
    Not to show up the other side or even get them to reciprocate, but to do what is right because it IS right. As the Bible story records, God intervened in a miraculous way to save those three boys. Who’s to say He wouldn’t honor doing what is right again?

    • Thanks, Joel! I’m glad you found it helpful.

      I’d say that expecting people to cooperate unilaterally without any plan to protect themselves from betrayal is unreasonable and unnecessary. We don’t need everyone to have quite that much courage, not when we can empower people to prepare for, recognize, and respond to betrayal in ways that build trust rather than damage it further. How does that sound?

  3. Thomas accepted something from someone, a something I do not value. I prefer drinking coffee and watching my chickens.

    Must his acceptance of that something be considered unethical to me based on someone else’s calculations.

    If not, why should he resign?

  4. A long-term response is to eschew cheating at the risk of possibly losing the game, because it preserves the integrity of the game and avoids a fight. A short-term response is to cheat to avoid the immediate risk of losing, at the long-term risk of a fight.

    I quote Maraxus.

    Of course! And the people on the Travis Commissioner’s Court would have tossed Lehmberg out on her ass a long time ago. They’re not doing it because there are, frankly, more important things at stake. In a state like Texas where the GOP has historically run roughshod over the Dems, they cannot afford to lose powerful positions like this. Considering the number of cases coming out of the PIU, including, incidentally, a Perry-allied ex-official who channeled millions of dollars to some of his big contributors, the Travis DA’s office has more influence than just about any Democrat in the state. If Perry didn’t have the right to appoint her replacement, and he almost assuredly would have appointed a fairly right-wing replacement, I’m sure the Travis County Dems would like to tell Lehmberg to take a short walk off a long pier. Unhappily, there are more important considerations at hand.– Maraxus, posting in support of the indictment of Governor Rick Perry on the forums

    What would you reply to Maraxus?

  5. I still cannot understand why people think Thomas should resign. He did not break any laws or rules as none existed requiring him to disclose the trips, there is no indication or evidence that trips or anyone else that was on the same trips affected his decision making (other wise the lefty media would have made those claims).

    Basically it comes down to (supposedly) needing to maintain faith in the integrity of the institution of SCOTUS. However, here’s the thing: the vast majority of people (all except few purist ethicists like Jack) who are claiming that Thomas’ actions undermine that faith never believed in the integrity or impartiality of the Court; rather, they always viewed the Court as an institution that they control and use to shove through policy and societal changes that they cannot push through the legislative process.

    They are simply unhappy with the Court’s conservative majority and particularly with the presence of Thomas (black conservative), and want him out, and never cared nor will they ever care about integrity and faith therein.

    • I’m tempted to make a post out of all the fallacies you’re listing here, Ron.

      That there is no “rule” that SCOTUS jutsices are officially liable to have enforced against them doesn’t mean there is no rule: the rule is in the Code governing US judges: Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

      (A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

      The only reason SCOTUS is not governed by this rule is the beliefe that as the best of the best, Supreme Court Judges don’t need a Code because their integrity is beyond reprach—because it MUST be beyond reproach for the Court to function. Thomas has proven that he does not have the requisite integrity, and thus will only avoid the appearance of impropriety if he is forced to: thus he is not qualified to be on the Supreme Court.

      Then, incredibly, you argue that his trust-destroying conduct doesn’t matter because so many people don’t trust the Court anyway! hell, why not let the Justices take bribes then?? You’re avoiding ethics with spin, and not even very effective spin.

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