I hate this stuff; I condemn it frequently in my legal ethics seminars as a sign of the public’s ignorance regarding the function of lawyers, and when practiced by political parties and the news media, it is particularly disgusting. And here comes supposed GOP star, Senator Josh Hawley (R-Mo), to pull this despicable stunt in a hearing on the qualifications of Judge Loren AliKhan, nominated for a federal district court judgeship by President Biden.
Hawley’s “gotcha!” employed to discredit AliKhan was that in 2020, when she served as Washington, D.C. Solicitor General, she defended the city in court after the Capitol Hill Baptist Church sued D.C. Mayor Bowser for religious discrimination. Bowser (who, as I’ve already mentioned once today, is one of the worst major city mayors) shut down church events to protect public health during the pandemic freak-out, but encouraged and allowed mass Black Lives Matter protests. A federal judge ruled in Capitol Hill Baptist’s favor, and the city did not appeal because as almost everyone with any legal literacy knew at the outset that Bowser’s double standard was pretty much indefensible.
Hawley asked AliKhan why she lost the case. She responded by explaining that the court determined that “the restrictions did not meet the standard of strict scrutiny,” which is the threshold required to justify any government infringement of Constitutional rights. “Meaning they were unconstitutional?” Hawley pressed.
“Meaning that they did not survive strict scrutiny and it’s a matter of public record that the District of Columbia did not appeal that decision,” she responded. “Why, why, why were they struck down?” Hawley asked again. “Why were the restrictions that you defended struck down as discriminatory?”
“Because they did not satisfy…” and Hawley interrupted “Why didn’t they?” he asked again.
“The court concluded that there were restrictions that were not neutral of general applicability…” she began, and Hawley interrupted again.
“Yeah, yeah, yeah, yeah that’s legalese. Why didn’t they? Why didn’t they on the facts? You know the facts, you’re a good lawyer. Why’d you lose?” he asked again.
“We lost because applying the strict-scrutiny test, the court concluded that the restrictions were not narrowly tailored to serve a compelling governmental interest,” AliKhan answered, again.
“Because?” Hawley insisted.”Oh, come on, Judge, don’t make me do this. Do you want me to go through it for you? You lost this because Mayor Bowser was going to mass protests, herself personally, with thousands of people,” Hawley said. “At the same time she was doing that, she was prohibiting churches, religious people, from gathering socially-distanced outside, wearing masks, and the district court said, ‘You can’t do that, that’s discrimination.'”
Hawley continued attempting to hold AliKhan responsible for her client’s policies that prompted the lawsuit. Finally, after more hectoring, the judge said, “I was representing my client.”
That was the whole and complete answer to Hawley’s attack from the beginning. My only fault with her in the exchange is that she didn’t throw Hawley’s words back at him, saying,
“Oh, come on, Senator, don’t make me do this. Do you want me to go through it for you? You’re a Yale Law grad and you were a state Attorney General. You know, despite your grandstanding here, that Rule 1.2 (b) of the lawyer ethics rules that apply to government attorneys as well as private attorneys states, ‘A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.’ As Solicitor General, it was my job to represent my client’s position when it was subject to a challenge in court. Doing that to the best of my ability was my job and my duty, and my own beliefs regarding the merits of the policy or the challenge to it were irrelevant. In addition, you also know that it would be unethical for me to criticize the policy I was required to defend, other than to state the fact that the mayor’s position was rejected by the court, and we did not appeal. Nor can I reveal what my advice was when I was asked my opinion of Mayor Bowser’s actions.”
Hawley does know all of those things, but he knows most of the public does not, so he weaponized that ignorance to flog a completely irrelevant episode in AliKhan’s legal career to give the impression that she agreed with what the district court held was a breach of the First Amendment right of religious freedom.
Naturally, the conservative press missed what was really going on: “GOP senator schools Biden judicial nominee for defending religious discrimination: ‘Don’t make me do this'” crowed the Blaze. Hawley didn’t “school” anyone. In fact, he did the opposite: he deliberately made the public dumber. Lawyers are not ethically responsible for the actions and position of the clients they represent: the Golden Rule should have stopped Hawley from this miserable strategy, because as a lawyer, he would be outraged if it were aimed at him.
I have no idea what Biden’s nominee really thinks about Bowser’s policy, and Hawley’s unethical line of questioning revealed nothing useful regarding her qualifications to be a federal judge. It did, however, reveal quite a bit about Josh Hawley. He’s a ruthless hypocrite who will deceive the public for his political ends.
Good to know.
Ethics Alarms 
I hate most hearings like this.
They seemed more designed for politicians to strut around and look tough.
After all, generally, those asking questions are not genuinely trying to gather information or really learn anything.
It is primarily a vanity exercise.
-Jut
I think ethics has died in DC. What we have now is a war and in war you do what you have to do to win. Power and its handmaiden, money are the only things most of the politicos in Washington are there to obtain. This includes all those on K Street who suckle on the teat of the American taxpayer. I am not going to condemn Hawley individually; that would be unfair. There are some who are fighting to preserve the Republic, but they are outnumbered by the ones that are merely loud pretenders.
The demise of legal ethics is just collateral damage. Get used to it. Lawyers, in the White House, on the Hill and at the DOJ have destroyed ethics because the judicial system has been politically weaponized. Subsequently the same behavior has been adopted by society. Far too many now believe that an indictment is in itself evidence of guilt.
If the public is being dumbed down with respect to the rule of law and justice, then it is because they look to the lawyers as authority figures that they can trust. Sorry, lawyers brought this on themselves and until lawyers are disbarred for ethical breaches and not given a pass because they subscribe to the preferred political ideology will you not see an end to unethical behavior.
I would like someone to explain to me how it is better to lose an existential fight by behaving ethically when your opponent exploits that as a weakness by acting unethically. When does behaving unethically in response to an unethical attack stop being a tit-for-tat rationalization and become a defensible ethical behavior. There are no ethics in a street fight.
If our republic falls it will be because of lawyers who put winning and punishing their adversaries for personal glory and the money, that often comes with it, above all else.
An indictment is evidence of ‘something’. All other things being equal I may continue to prefer the (job) applicant who has not been even suspected of crime, let alone been indicted.
Andrew,
You have to be kidding me. The extension of this is that racial profiling does not exist because police would never pull someone over unless the occupants were guilty of some crime.
There is a reason for the saying you can indict a ham sandwich. The double standard in this Justice department is blinding.
I was the foreperson of a Grand Jury and I can tell you from experience that it is a once sided presentation in which the majority of the members just vote the way a couple of people voted. They don’t pay attention to details, or they let their own biases shape their opinions about the facts.
I might agree, but that’s irrelevant to the issue at hand. There is no justification for even suspecting a lawyer of agreeing with or supporting the objectives of a client. Lawyer also represent rapists, murderers and spies, who have a right to representation. If the “suspicion” of support or sympathy followed that duty, rights in the justice system would be a sham.
Yes, I agree in those contexts. My point stems from simple logic and is one which regularly irritates actuaries. Many tests, say to determine whether you have cancer, will be intentionally biased. There will be a low chance of false positives, but if so, inevitably there is a relatively high chance of false negatives.
The presumption of innocence is a very fine and proper part of our formal culture, and of course I support it. But in practical matters, like whether I can trust you to look after my children, I look at all the evidence I can find.
Being found ‘not guilty’ is not and was never intended to be ‘proof of innocence’. You might believe yourself a very fine lawyer in ignoring unproven allegations against your baby sitter, but to do so might not in my view be responsible parenting.
Andrew
You are conflating a civil issue where the evidentiary requirement is substantially different (lower) than in a criminal case.
Actually, if you are presumed innocent going into court and it was not proven that you were guilty then logically we must presume that the defendant is innocent when a not guilty verdict is rendered. You cannot impute guilt because you want to.
Formal legal ethics may set ‘rules’ relating to our exercise of power over each other. It is unwise to be unaware of this framework (of ‘rules’) and how they may be enforced. It is however naive to think the setting of such ‘rules’ can eliminate discrimination and bias. Our success through evolution has been significantly assisted by our ability to learn from our experiences. Some sabre tooth tigers might be charming pussy cats but fortunately my ancestors weren’t prepared to hang around with ‘presumptions of friendliness’.
What is happening is that the exercise of illegal bias is in increasingly being hidden and to my mind this is unfortunate. I will of course interview the mother of young children applying for a stressful job with demanding clients but I no longer dare ask her how she will cope . Sadly this means I can no longer discuss with her how we might be able to help her – perhaps by redesigning the job or splitting it with someone else. If I follow the rule book I won’t even acknowledge the fact that she looks pregnant and there seems to be no way we can talk about maternity leave.
The job interview will be very properly recorded with an HR professional present. I won’t leave any trace of discriminatory bias. But sadly (only between you and me of course) she is unlikely to get the job: unless of course she explains to me without any explicit prompting how her partner , friends and family can back her up ; and how long she expects to be away on maternity leave.
My point was that the lawyers of DC set the ethical baseline which routinely violates the written rules and only those who are not within the power group are subject to sanctions. Hawley is meeting the de-facto standard established by the legal community who profit by arguing the law for the highest bidder.
She knew or should have known instantly the answer to the question Because? but was not intelligent enough to answer him with the facts the Court decided. The Senator performed a public service.
What part of “this has nothing to do with her qualifications as a judge or a lawyer” doesn’t register? She was refusing to cooperate with unethical and idiotic questioning, and assist the Hawley’s cheap shot of getting her to say she tried to keep an unconstitutional policy in place. Her position was that it was not unconstitutional as a measure necessary to protect public health and welfare. The court rejected it BECAUSE is their view she hadn’t made that case.
Admit bad facts and move on. Appellate justices expect it or they maul you as this nominee has done probably during her service on the bench. This “has [everything] to do with…”
No. An advocate does not “admit bad facts.” Lawyers and judges have different duties and ethical requirements. If you are representing OJ, you still don’t admit the “bad fact” that he did it.
That was not an appeal was it?
No! In fact, it was stated in the exchange and my post that there was no appeal.
That’s right. So the opinion with its factual assessment, unmodified, was the topic wasn’t it?
No. The topic was and is that lawyer cannot be criticized for representing their clients, even when their clients’ position is hopeless unless the court buys a Hail Mary argument. Thus the case, its resolution and the judge’s representation was completely irrelevant to her qualifications as a judge. This isn’t hard.
Stop.
Jack
Please understand that I am in agreement with your statements. Unfortunately, this type of behavior is modeled by far too many with impunity and that is why it continues. I asked when does it become ethical to defend your positions when the other side routinely behaves unethically without any sanctions.
As for this nominees qualifications I have no idea but given Biden’s past appointments or nominations I would very interested to know what political ideology she supports and if it affects her judgement. If judges were impartial prosecutors would not engage in judge shopping.
When the appropriate bar starts suspending licenses to practice for breaches of ethical standards uniformly across the political spectrum such practices will stop.
The problem is we have gone well past the tipping point when so many are drooling at the prospect of incarcerating their political adversaries that they will excuse unethical or criminal behavior practiced by their side while condemning the unethical or criminal behavior of the other side.
This is plain as the nose on one’s face and proximate cause of the decline in ethics can be laid at the feet of those activists working in the criminal justice system. I have lost faith that the unflavored will ever be treated fairly in our current system.