“bias makes you stupid”

A Smoking Flip-Flop: Here Is Why Larry Tribe Cannot Be Regarded As An Objective Legal Authority Any More

/ Jack Marshall / 14 Comments

…well, other than the fact that his recent tweets indicate that the 77-year-old  prof is no longer playing with a full deck…*

I had a back-and-forth with a smart non-lawyer who is suffering from Trump Derangement, and who cited the opinions of Professor Tribe to counter Alan Dershowitz’s critique of the Mueller Report. He didn’t like my assertion that Tribe has proven himself to be a partisan hack of late, willing to espouse whatever public opinion the Left and “the resistance” will find useful.

Ed Whelan, the President of the Ethics and Public Policy Center, found this example of a cynical Tribe flip-flop, worthy of the gymnasts above, that shows what I mean:

 Back in early March 2016, a few weeks after Justice Scalia’s death created a vacancy on the Supreme Court, Harvard law professor Laurence Tribe was perhaps the most prominent of some 350 law professors to sign a letter asserting that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Declaring that “[t]he Senate’s obligation in this circumstance is clear,” the letter invoked the Appointments Clause of the Constitution.

But, as I and others (including liberal law professors Noah Feldman and Vik Amar) pointed out at the time, the position that Tribe took had no support in the text of the Constitution and contradicted perennial Senate practice on nominations. The Appointments Clause states only that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various executive-branch and judicial-branch officers. In other words, it restricts the president’s power of appointment by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But it says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Tribe’s position in March 2016 further surprised me because it contradicted Tribe’s own earlier (correct) recognition, in his 1985 book God Save This Honorable Court, that the Senate may block a Supreme Court nomination “by simply refusing to act upon it.”

I’m pleased to discover that Tribe now agrees that the Senate does not have a constitutional duty to take any action on a Supreme Court nominee. Continue reading →

Morning Ethics Drill, 5/7/19: Unethical Headlines, A Missing Coffee Cup, And A Comment Of The Day

/ Jack Marshall / 22 Comments

A morning that begins with a trip to the dentist and a referral to an oral surgeon can’t be good. Sorry.

And now I see that without warning or explanation, WordPress has removed its spellcheck feature. I’m sure those of you who are sick of my typos will appreciate THAT…

1. Stop making me defend Anderson Cooper, sort of! Here’s a cheap shot Fox News headline:

Anderson Cooper denies he’s ‘on the left,’ then rips Trump for tweeting about Kentucky Derby

Well, I’m also not on “the left” (Cooper is, of course), and I’m going to rip the President for tweeting his opinion on the Kentucky Derby, without even getting into the fact that his opinion was ill-informed and stupid.

As I wrote more than once during the Obama administration, the President is not the national arbiter of everything, and should keep his opinion to himself unless it directly and clearly involves the national interest. President Obama had a proclivity for injecting himself into controversies large and small, from the Trayvon Martin shooting to picking brackets for the NCAA college basketball tournament.  I wrote in this post,

This can no longer be called a rookie mistake, like the Prof. Gates arrest affair. President Obama has now had plenty of time to absorb the fact that the President does not have a blank check to insert himself into every local controversy and use his office to sway public opinion and the conduct of others regarding matters outside his responsibilities. Still, he continues to do it. It may seem trivial at first: the President gave an interview on TNT in which he pointedly suggested that NBA superstar LeBron James consider the Chicago Bulls as he faces free agency.  After weighing in on the most important things for James to seek from his current team, the Cleveland Cavaliers, if he was going to stay there, the President said, “You know, like I said, I don’t want to meddle. I will say this: (Derrick) Rose, Joakim Noah it’s a pretty good core. You know, you could see LeBron fitting in pretty well there.”

Now, I don’t care what Cooper thinks of Trump’s meddling in matters that don’t concern him if the CNN anchor didn’t have the integrity to knock Obama for doing the same thing, and repeatedly. Still, Anderson was on the right track—finally—to say, as he did,

“The president of the United States seems to have a lot of time on his hands And he can’t even stand some horses getting uninterrupted airtime. He’s got to be a part of every frickin news cycle. He can’t help himself!”

(I guess “frickin” is now considered professional lexicon at CNN. Stay classy, Anderson!)

Less defensible was this comment: Continue reading →

Ethics Dunces: “More Than 370 Former Federal Prosecutors”

/ Jack Marshall / 24 Comments

It’s time to add former federal prosecutors to the nauseatingly long list of professionals and professions who have violated basic ethical principles out of uncontrolled animus towards President Trump.

From the Washington Post:

“More than 370 former federal prosecutors who worked in Republican and Democratic administrations have signed on to a statement asserting special counsel Robert S. Mueller III’s findings would have produced obstruction charges against President Trump — if not for the office he held.

The statement — signed by myriad former career government employees as well as high-profile political appointees — offers a rebuttal to Attorney General William P. Barr’s determination that the evidence Mueller uncovered was “not sufficient” to establish that Trump committed a crime.

Mueller had declined to say one way or the other whether Trump should have been charged, citing a Justice Department legal opinion that sitting presidents cannot be indicted, as well as concerns about the fairness of accusing someone for whom there can be no court proceeding.

“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice,” the former federal prosecutors wrote.

“We emphasize that these are not matters of close professional judgment,” they added. “Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here. . . . But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.”

…It was posted online Monday afternoon.

This isn’t even a close call. Professionals don’t do this if they have any respect for their profession, whatever it is. Continue reading →

Althouse Ethics

/ Jack Marshall / 14 Comments

Blogger Ann Althouse, who doesn’t write an ethics blog but does a good job flagging ethics issues and outrages, had an unusually ethics-centered day of blogging. Here are brief comments from me on four of her posts, which you should read. I had two of these in my queue, and I’m grateful to Ann for saving me some time I desperately need,

Ann notes how, in the Post comments to the article, which has nothing to do with Donald Trump, some people cannot help using the topic to attack the President, as she writes, “Trump Derangement Syndrome, symptom #1: When things aren’t at all about Trump, you visualize violence against him and get off on your vision.”

This is, in a nutshell, what Facebook is like, every day. I could spend all my time writing, “Do you listen to yourself? You’re completely consumed by blind hate of the President of the United States. Get help. You’re embarrassing yourself, and making  society divided and ugly. You, and everyone like you. Not him. YOU. “

This is why Democrats are deluding themselves if they think poor Joe is a viable candidate. They can’t possibly attack President Trump for being dumb, inattentive, incompetent, old or mentally unfit with Biden making gaffes like this—or worse—almost daily, and he will make them almost daily, Continue reading →

Morning Ethics Warm-Up, 5/3/2019: The “All They Had To Do Is Not Be Crazy, And They Couldn’t Even Do That” Edition [Part II]

/ Jack Marshall / 14 Comments

I’d recommend reading the Introduction to this two-part post before diving into this. I also recommend holding down the top of your head…

1. You want crazy, I’ll give you crazy... The Washington Post, one of the two loudest media heralds for the  Woke, progressive and nuts, felt it was necessary to raise this question: “Why didn’t Chewbacca get a medal?” As I’m sure you know, Peter Mayhew, the tall actor who played the lovable, if inarticulate Wookie, died yesterday. Thus the Washington Post felt it was newsworthy to discuss whether the Rebels in the original Star Wars were white supremacists or something because the final scene shows Luke and Han wearing medals for saving the galaxy far away but poor Chewbacca with nothing, although he’s obviously being honored too.

We really do have to be trained to see racism everywhere, especially when white bitches like Princess Leia call the shots.

This comes on top of another Post  article by John Broich, who teaches WWII and British Empire history at Case Western Reserve University, and typifies why sending your kid to college today is irresponsible. His position:  “Allied leaders were anti-Nazi, but not anti-racist. We’re now paying the price for their failure.”

Now if I read this right, the logic of the current history-cleansing Left would require that all monuments to W.W. II leaders, generals and soldiers should be hauled down, since they enabled racism. He concludes,

“After Charlottesville, too, social media echoed with variations of the line: “My grandpa didn’t fight the Nazis only for them to return.” And it’s possible that a good many of our grandfathers might have fought the Nazis expressly to oppose their race supremacy. But it’s worth putting this plainly: The Allied leadership did not fight the war over fascist race-nationalism. That was the historical path not taken.”

The allied leadership and its soldiers fought the war to win, and did.  The total defeat of Hitler and Japan sent the most powerful message possible to the public and the world that genocide and race hatred were suicidal ideologies. Continue reading →

Morning Ethics Warm-Up, 5/3/2019: The “All They Had To Do Is Not Be Crazy, And They Couldn’t Even Do That” Edition [Introduction]

/ Jack Marshall / 26 Comments

Good Morning!

See, I can say still say that because each new day brings promise, even when the previous day was profoundly depressing and ended for me when the Red Sox lost in the 9th on an error and a walk-off home run.

The theme today was unavoidable., and believe me, I try to avoid a imbalance that enables those who want to dismiss Ethics Alarms as a conservative blog, rather than as a neutral, objective blog that has been forced over the past three years to focus heavily on the unethical conduct of “the resistance,” the biased news media, and the Democratic Party. Today, however, the imbalance isn’t mine, but the news.

Today the April economic report shows that wages are up, and unemployment is down. CNN is, I’m sure with clenched teeth, reporting on its poll showing that approval of how President Trump is handling the economy is at 56%. (“Now Congressional Democrats will have to figure out how to destroy the economy” tweets one wag). Another CNN poll finds optimism about the economy the highest it has been in at least 18 years. I know, believe me: polls. Still, one of the most pervasive Big Lies wielded by the “resistance” and the news media is that things are just terrible in the United States. I read some version of this alternate universe in New York Times interviews, features, and book reviews almost every day. You heard it from Joe Biden in his fantasy based video announcing his candidacy. Scott Adams, Dilbert’s creator who is a self-styled “Trump whisperer,” nicely summed up how this Big Lie is going:

“In 2016, if everything the Democrats believed had been true, we would have a depression, nuclear war, prison camps, and an insane Russian puppet as our president. In 2019, if Dems are right about everything they believe, Trump might have almost impeded a witch hunt but didn’t.”

But wait! There’s more. Continue reading →

Facebook And Instagram Leap Down The Slippery Slope To Thought-Policing

/ Jack Marshall / 22 Comments

Facebook has banned right-wing activists Alex Jones, Milo Yiannopoulos, Laura Loomer, Joseph Watson, white supremacist Paul Nehlen,  Jones’s company, Infowars, and  Nation of Islam leader Louis Farrakhan.

And yes, it is unethical. And frightening. The irony is that Facebook says that the ideas promoted by these mostly fringe figures are “dangerous.” Nothing any of them say or write are anywhere nearly as dangerous as promoting censorship based on content and political viewpoint.

It doesn’t matter that all of the political and opinion figures Facebook banned from its two social media platforms are assholes, bigots and hate-mongers—I can’t say for sure that all of them are, since I only bump into any of them when I take a wrong turn on the Information Superhighway, as Al Gore liked to call it. I can say for sure that Nation of Islam leader Louis Farrakhan meets that description, just as I can say for sure the media spin that he is “right wing” is ridiculous. If he’s so far right, why have so many members of the Congressional Black Caucus, including the only-recently resigned co-chair of the Democratic National Committee, met with him, posed with him, and generally given him legitimacy?  Barack Obama posed with him too, though that photo was stored in the media memory hole until he was safely elected President.

Oh, I get it: only conservatives spread hate, ergo Farrakhan must be a right winger.  I suspect that the real reason Farrakhan was on the initial list of banned users was so Facebook could claim, when challenged, that it wasn’t just banning  advocates for the far right.

Progressives and their allies need to get their stories straight.

Let me get back to the first sentence: for a major source of communication in our society to permanently censor anyone based purely on the ideas and opinions they advocate is unethical, and is a serious threat to freedom of expression in the United States. Continue reading →

Unfair, Obviously Unfair, Scandalously Unfair. Why Are Athletic Organizations Allowing This? Why Are Women Tolerating It?

/ Jack Marshall / 36 Comments

Over the weekend , powertlifter Mary Gregory, a biological man who identifies as a woman and thus is to be regarded as transgender,  set the Masters world records for women’s squat, women’s bench press, and women’s deadlift. Mary has testicles and a penis. Presumably all she would need to compete in a male weightlifting competition is a new name, and an announcement that the he turned she now identifies as a male again.

An exhilarated Mary wrote on Instagram,

“What a day, 9 for 9! Masters world squat record, open world bench record, masters world dl record, and masters world total record!” Mary Gregory posted on Instagram. Gregory thanked the Raw Powerlifting Federation. “As a transgender lifter I was unsure what to expect going into this meet and everyone – all the spotters, loaders, referees, staff, meet director, all made me welcome and treated me as just another female lifter- thank you!”

I’m happy for you, Mary. Your cheating was allowed. Be proud. You go…girl. Continue reading →

Morning Ethics Warm-Up, 5/1/2019: May Day! May Day!

/ Jack Marshall / 52 Comments

Good morning to you,

me, not so much…

I’m ticked off at myself this morning for being cripplingly anxious. I have a looming appointment with a specialist later today regarding a medical issue that could be minor or, in a worst case scenario, could be “curtains.” My father taught me better than this: my anxiety is completely irrational. If I dropped dead tomorrow, I would have no basis for complaints; as Clarence tells George Bailey, I’ve had a wonderful life. Regrets? I’ve had a few, but then again, too few to mention….

1. About the cultural literacy test...To be fair, I’m going to put up a second test that requires recognizing the name and significance of various figures rather than identifying photographs. They are indeed two different kinds of knowledge, although some of those in the current test are also iconic images. I tried to include some visual clues when I could: the guy with the cigar was famous for his cigar, and that basketball player is an iconic basketball player. The complaints about the figure holding the gun are fair, but literally every other photo I could find of him gave his identity away. Commenter Zoltar’s scoring method of taking half the points when he knew why the person was famous or important but couldn’t fetch the name was justified.

I checked the score of the photos I felt culturally literate Americans ought to be able to identify, and the total was 40. Let’s check the most recent poll…ah! 21 of the 46 results so far met that benchmark. And someone score a perfect 125! My score was only 118…

I felt a little guilty about including the old movie star, but she was the inspiration for the test. Her Academy Award-winning turn was on TV, and she has always been a favorite of mine, as well as legendary with film buffs for her comic technique. I wondered how many Americans recognize her today, for once she had one of the best known faces in the nation. And what a face it was! Continue reading →

Oh, I Can’t Let THIS Pass! Unethical Quote Of The Week: White House Correspondents’ Association President Olivier Knox

/ Jack Marshall / 15 Comments

“February 2017 is when the President called us the enemy of the people. A few days later my son asked me, ‘Is Donald Trump going to put you in prison?’”

—Olivier Knox at last week’s White House Correspondents Dinner.

At the same dinner, “entertainment” Ron Chernow—will he trade in his historian gig for stand-up? I can see it now—Laugh with the Hysterical Hystorian!—said in one of his funnier lines,

“H.L. Mencken once warned of a political system that would ‘keep the populace alarmed by menacing it with an endless series of hobgoblins, all of them imaginary.’ We simply cannot allow the press to become an imaginary hobgoblin exploited for political gain.”

Great irony, Ron! The press has just completed nearly three years of trying to frighten the public by claiming that the President stole the election and is a Russian agent, but it’s the President who is alarming the public with “an endless series of hobgoblins, all of them imaginary.'” HAHAHAHAHAHA! Good one!

Well, as someone who has written some comedy routines, I agree that it’s important to know your audience. In this case, that means knowing your audience is smug, arrogant, lacks self-awareness, and afflicted with permanent delusions of virtue.

But back to Knox. The device he stooped to use is known (here)as the Amy Carter Maneuver, when an adult places words in his child’s mouth for dramatic effect. Surely you recall Jimmy Carter’s infamous gaffe in his debate with Ronald Regan, when he said,  “I had a discussion with my daughter, Amy, the other day, before I came here, to ask her what the most important issue was. She said she thought nuclear weaponry — and the control of nuclear arms.”  Amy was 13, and most viewers found the device nauseating. Continue reading →