Under normal circumstances—but what is normal any more?—my conclusion regarding whether Clarence Thomas should or should not recuse himself in any cases involving the January 6 riot (which the Washington Post again calls “an insurrection” today)because of his conservative activist wife’s vocal support of vigorous responses by the Trump White House in response to what she felt was a fraudulent 2020 election would follow the same reasoning that my analysis of Justice Scalia’s recusal controversy trod almost exactly 18 years ago. The question then was whether Scalia’s participation in a duck hunt with Vice-president Cheney and his pals created a sufficient conflict of interest to trigger the “appearance of impropriety” standard that is supposed to govern judicial decisions whether to recuse, since Cheney was technically—but only technically—a party to lawsuit that had ended up in the Supreme Court.

Scalia adamantly insisted that there was no conflict and no impropriety, and authored an impressive memorandum to support his position. He indeed judged that case. I wrote in part,

Those who have criticized Scalia for his stance on this controversy have an obligation to read the Justice’s memorandum. They are sure to learn some things, such as why it is unwise to trust media accounts regarding anything more complicated than your typical Sponge Bob Square Pants episode; what constitutes a legally persuasive argument and why even Scalia’s ideological foes admire his sharp intellect and lively writing….

[I make] no pretense of being able to match Justice Scalia’s intellect or knowledge of the law. And he makes one especially chilling point: is appearance of impropriety sufficient to force recusal when that appearance is a false illusion created by inaccurate reporting, sloppy analysis, and misinformed reading of the law? It looked like an easy call based on what appeared in the papers; Scalia’s memorandum is a clarification that shows that his position is not just a product of stubbornness, but of careful scholarship. He wins the debate, hands down.

He should still recuse himself….

Scalia is right: there is the potential here for more than one bad precedent, and justices should not permit themselves to be run out of deliberating on politically sensitive cases by partisan misinformation campaigns. But the damage is done. To most of the public, the raw circumstances of the Scalia-Cheney outing will call Scalia’s impartiality into question, and because it is a high profile case, this will damage the public’s faith in the Supreme Court. It isn’t worth it. Americans, even Americans that don’t comprehend the legal requirements of recusal, need to believe in the integrity of the Supreme Court.

Next, the Court should recognize the new political realities of its role, and devise a review system that would make the whole court the arbiter of whether one of the brethren has a conflict, or an unacceptable appearance of one. Such a system would have made Scalia’s current dilemma less of a lightning rod for criticism.

For now, though, Justice Scalia needs to face facts: he may be right on the law, but he’s a dead man walking.

I like that post a great deal; I think I was right. (I also look wistfully back at the time when I could spend up to a week a week polishing a single post.) The parallels between Justice Thomas’s Left-and-news media contrived conflict is similar to Scalia’s. But if you think that means that I now must side with those who are pushing for Thomas’s recusal, you are wrong. Continue reading →

I guess I should mark this weeks selection “BWSC”: Before Will Slapped Chris.”

Here are my top five picks from last week:

• The New York Times Scandal Regarding The Mainstream Media’s Cover-Up Of The Hunter Biden Laptop Story Is Bigger Than The Laptop Story Itself

I’m cheating a bit here; this one was 8 days ago, but I didn’t do a Monday Retrospective last week (I forgot) and this is an important topic. Come for the post, stay for the comments.

• Bias Makes You Stupid, And Only Bias Can Explain Why A Prosecutor Would Argue That It Is Unethical To Ask a Juror About His Biases

From 3/21, and too astounding to miss.

• So Many Unethical Laws Are Being Passed, They Get Shut Down Before We Can Get Properly Outraged By Them: D.C.’s Sinister “Minor Consent for Vaccinations Amendment Act of 2020”

On 3/22, we discussed how the District government, among others, are trying to over-ride parental rights.

• Ethics Observations On The Judge Ketanji Brown Jackson Senate Hearings, Part 1 and Part 2

From 3/24…, and,

• “Now That Judge Jackson Has Settled One SCOTUS Recusal Issue, Another, Much Tougher One, Looms, Part I: The Issues.”

From 2/26, just in time for Part 2 today.

I’m squeezing today’s potpourri in while I labor to finish a client’s opinion letter on a weird type of lawyer conflict of interest where an attorney represents multiple clients seeking damages from the same defendant who doesn’t have the assets to satisfy everyone. Yes, compared to technical legal ethics, thinking about the rest is recreation.

Tonight is the Oscars broadcast, which I will assiduously miss despite having seen at least some of more Best Picture nominees than in recent years. From an ethics point of view, I must note that on this date in 1973, Marlon Brando confirmed his status as one of the biggest jerks in Hollywood by declines his Academy Award for Best Actor in “The Godfather.” Instead, he inflicted Native American activist Sasheen Littlefeather (that’s her, today and then) on the attendees and the TV audience. She appeared in Brando’s place and said that the actor “very regretfully” would not accept the award, in protest of the portrayals of Native Americans in film. This abuse of the ceremony for narcissistic political grandstanding helped start the Oscars on their long decline from being a celebration of popular entertainment to becoming an obnoxious platform for ill-educated and ill-informed celebrities to presume to lecture the American public.

1. From New York City, a “laws are for the little people” classic. NYC Mayor Eric Adams formally announced last week that he was lifting the vaccine mandate in for professional athletes and performers. He can spin all he wants, and the news media will spin for him, but there is no ethical way out of the hypocrisy. Adams claimed that his decision was driven by concern for the economic recovery of the city from the pandemic, noting that sports and entertainment played vital roles in generating jobs and tax dollars. Yes, and they also poured thousands of dollars into lobbying for this exemption. Adams said he had always believed it to be unfair that New York City-based athletes had to be vaccinated to play but visiting players did not, under an earlier Mayor De Blasio executive order dating to the prior administration. The disparate treatment of highly paid, celebrity workers and less starry, influential and powerful ones looks bad, and is bad.

Continue reading →

Massey University (New Zealand) Fat studies scholar Cat Pause ( I cannot determine if this was her real name) has died suddenly and unexpectedly. The PhD specialized in “Fat studies” and lectured on “fat positivity,” how to fight “fat stigma,” and achieving well-being for overweight people.

She was just 42 years old. [Notice of Correction: My original source said she was 50. That was wrong.]

Your Ethics Alarms Ethics Quiz of the Day—it’s more of a query than a quiz, really—is

What is the most ethical reaction to this news?

I ask because I’m puzzled, frankly. Obviously, it’s a tragedy for a woman to die so young. On the other hand, as Capt. Hook used to say, this doesn’t exactly validate her life’s work, does it? If you devote your research to showing how being obese is nothing to hide from, worry about or accept criticism for, I’m inclined to say that you better make damned sure you don’t drop dead suddenly at the tender age of 42. Isn’t this like defiant smokers getting lung cancer before retirement age, or Timothy Treadwell, aka “Grizzly Man,” getting mauled to death by a bear at 46?

Stipulated: It is mean and heartless to find such outrageously predictable demises funny, or to think, “They asked for it, they got it.” So what should we think that is constructive as well as compassionate?