Ethics Proposition: Justice Barrett Should Immediately Recuse Herself From Any Future SCOTUS Decisions Relating to the 2020 Presidential Election

Barrett Trump

I will stipulate that the newest Supreme Court Justice does not have to recuse, and that even the judicial ethics rules applying to other Federal judges (no judicial ethics rules are controlling for Supreme Court justices) would not require recusal in Justice Barrett’s circumstances.

I will also concede that the arguments that she should not recuse are significant and important:

1. Were she to recuse, it would be interpreted by many as an acknowledgment that her Senate critics and others were correct to suspect that she was nominated to assist the President if necessary in any Supreme Court challenges to the election results.

2. Her recusal would suggest a precedent holding that a Justice being nominated by a President creates a rebuttable presumption that such a Justice has a conflict of interest that would interfere with the Justice’s ability to exercise independent and objective judgment in any case directly affecting that President’s interests.

3. Her recusal would leave the Court with a potential 4-4 split on a case that would have major impact on the nation.

4. Democratic officials’ demands that she recuse herself are driven purely by partisanship, and are hypocritical. Justice Kagan, appointed by President Obama, did not recuse herself in cases involving the Affordable Care Act, for example.

All this is true,

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Sunday Evening Ethics, 11/22/2020: A Day That Changed Everything Edition

One of the things November 22 changed was my wedding: we were scheduled to get married on November 22, 1980, until I protested that I did not want to have the anniversary of what was going to be one of the happiest days of my life coincide with one of the most traumatic days in my childhood, and in the nation’s history.

On this date in 1963, John Fitzgerald Kennedy, the 35th president of the United States, was assassinated while traveling through Dallas, Texas, in an open-top convertible. Kennedy was, in some ways, the opposite of Donald Trump, a youthful, inspiring, charismatic President who radiated promise and good will, and who seemed poised to lead a united and vibrant America into the second half of the 20th Century. It was all hype: JFK’s was the ultimate “golden dancer presidency” even before Barack Obama. As P.J. O’Roarke writes this week in Commentary, Kennedy “was a man of no abiding political principles, a plagiaristic pseudo-intellectual, a liar about his health and fitness, and a gross philanderer. But, it turns out, he also wasn’t a very nice guy.” Yet he made the nation feel good, optimistic, excited about the future. His sudden death was shattering and transforming in ways, I would argue, even 9/11 couldn’t match.

The previous assassination had occurred when McKinley was shot, leading us into the era of Teddy Roosevelt and Progressivism. Kennedy’s death made the U.S. lurch into the Vietnam era, campus activism, civil rights protests, Richard Nixon and Watergate, and the drugs, sex and cynicism of the Sixties. They might be listening to more boring music in the multiverse where JFK lived to a ripe old age, but I’d take my chances with it.

Talk about an ethics train wreck! Gross incompetence allowed Kennedy to be vulnerable to a sniper that day. The Dallas police let Jack Ruby shoot and kill Lee Harvey Oswald on live TV. The official Warren Commission report of 1964 concluded that neither Oswald nor Ruby were part of a larger conspiracy to assassinate President Kennedy, but few believed it, and irresponsible conspiracy-mongers from Jim Garrison to Oliver Stone were able to exploit the giant holes in the report to plant a cancer of suspicion and distrust that has thoroughly metastasized. In 1978 Congress issued a “preliminary report” that Kennedy was “probably assassinated as a result of a conspiracy” that may have involved multiple shooters and organized crime.

That was one magic lugee.

1. And while we are on the topic of cult figures who died tragically…Netflix’s “The Crown” has revived all-matters-Diana, and now the BBC has reopened an inquiry into how journalist Martin Bashir arranged his sensational interview with the late Princess in which she openly attacked the Royal family and Prince Charles. A two-part documentary that aired on the British network ITV on last week included allegations that Bashir used dishonest tactics to earn Diana’s trust and persuade her to tell tales “out of school” with candor unprecedented in Royal Family history.

The documentary claims that Bashir used doctored bank statements to convince Diana that royal employees were being paid to spy on her.The British Broadcasting Corporation, which originally aired the interview on its “Panorama” program, announced that it would open an independent investigation into the allegations.

Martin Bashir? Where have I heard that name before? Oh, right, now I remember. He was the MSNBC host who had to resign after saying on the air that someone should shit in Sarah Palin’s mouth. But surely someone like that would never use unethical tactics to get the scoop interview of the century…

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Ethics Dunce: Unethical Groveler Kelly Stafford

It’s really simple. If you don’t have the fortitude to stand up for your opinions, resist bullying and tell the social media mobs to go fry an egg, then shelter in your metaphorical womb, check with the Woke and The Wonderful about their latest agenda items and directives so you can parrot them accurately, and shut the hell up.

At least Galileo was threatened with torture by an authority that wasn’t bluffing before he retracted what he knew to be true. What was Kelly Stafford, the wife of Detroit Lions quarterback Matthew Stafford, afraid of? Yet she quickly followed up her video, which was 100% correct, with a nauseating retraction on Instagram, as she wrote,

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The Damning Ethics Bombshell In “The Crown”

The Netflix series The Crown, which had its 4th season debut over the weekend, is a terrific historical soap-opera featuring some superb acting by its regulars and walk-ons. It is also historical fiction involving living people, notably Queen Elizabeth, Prince Charles, and other members of Great Britain’s royal family. This is an ethically problematic area that Ethics Alarms has delved into before. There are legitimate ethical objections to a work of fiction misrepresenting the actions of any historical figure to that individual’s detriment and damage to his or her reputation. The ethical breach is worse when the fictional version of reality involves those who are still alive, and worse still, at least in the eyes of many Brits, when the dubious narratives put into vivid dramatic form involve the current head of state. This is an issue in part because such works of artistic license are too often accepted as fact by viewers who are too lazy to check Google, Wikipedia, or a history book.

“The Crown’s” scriptwriter, Peter Morgan, has said, “Sometimes you have to forsake accuracy, but you must never forsake truth,” whatever that means. The four seasons of his series have made sensational use of some genuinely disturbing chapters of British royal history that the monarchy would like to forget—this infamous cover-up of a Communist spy in Buckingham Palace is particularly stunning— but Morgan has also been justly criticized for making up events out of gossamer and parallel universe annals.

In the current season, for example, a lot of time is devoted to a rift between Prince Charles and Lord Mountbatten that Morgan admits never happened. The problem is that when complete fantasy is mixed in with real events, public understanding of what is fact and what is fiction becomes blurred. (See “Titanic” and “JFK”)

This may allow the Royals to wiggle out of the implications of the astounding scandal revealed in one of Season 4’s episodes, “The Hereditary Principle.” Some of the details are fudged—the horrible truth was not, as far as we know, uncovered by Princess Margaret (played by Helena Bonham Carter)—but it is true that five of her and Queen Elizabeth’s cousins were secretly committed to a mental hospital in 1941 and declared dead.

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The Left’s Assault On The Rule Of Law And The Legal Profession’s Cowardice, Or “Nice Little Firm You Have Here—Be A Shame If Something Were To Happen To It!” (Continued)

A-Pistol-Against-My-Head.

As discussed in the first section of this post, the once sacrosanct principle that lawyers and law firms were ethically obligated to represent unpopular clients when they needed legal assistance has been deteriorating for the last decade, most recently under pressure from the self-righteous Left. Victims of the new progressive ethic that the ends justify the means, Lawyers and law firms have been threatened when they dared to align themselves with the opposition to progressive agenda items, because, in the universe to the port side of the ideological spectrum, those who don’t agree with the righteous are evil.

And it seems clear that few lawyers possess the courage and integrity to remains professional in their response to such threats.

After the King & Spalding embarrassment described in the earlier post, a similar episode occurred involving Obamacare.  In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. After the House authorized the suit, David Rivkin and his firm, Baker Hostetler, signed a contract to litigate the case.

Rivkin was warned by members of the firm that litigating a case in opposition to Obama could drive off potential clients and hurt Baker Hostetler’s credibility…that is, its bottom line. Within a week after the contract was announced, partners at the firm, which represents many hospital management firms and insurance companies, started to receive urgent calls from general counsels of clients in the health-care industry. The messages were identical: their companies could not continue to associate with Baker Hostetler if it litigated the House’s lawsuit. Many suspected that the Obama administration was behind the scenes, urging health-care companies to drop Baker Hostetler. The firm dropped the case.

The House, suddenly without legal representation, frantically sounded out many of the top firms in Washington without success. The House finally selected D.C. lawyer William Burck of Quinn Emanuel Urquhart & Sullivan LLP. Three weeks later, without any explanation, Burck also withdrew from the case under pressure from his firm’s partners.

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Monday PM Ethics Parcels, 11/16/2020: Hypocrisy, Hypocrisy, Harvard

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1. Hypocrisy One. Another note on crazy-making discussions with the Trump Deranged; I admit to snapping when a once-intelligent Biden voter tossed off the Big Lie that Trump was a danger to individual rights, specifically free speech. “What?” I exploded. “Give me a single example where the President has taken any action that threatens free speech! Meanwhile, conservative speakers have been blocked from reaching audiences on campus, members of  Congress, all Democrats, have argued that “hate speech” isn’t protected under the Constitution, executives, board members, faculty members and others have been forced to resign because of communications that do not comport with progressive positions; citizens wearing MAGA hats have been attacked; Democratic leaders have endorsed Black Lives Matter, which enforces compelled speech (because silence is violence), social media platforms run by Democratic Party supporters are actively censoring conservatives, the a  New York Times editor was forced to apologize and ultimately resigned for allowing an opinion the staff didn’t like to be published as an op-ed, a Democratic Representative and others area calling for supporters of the President to face accountability, and President Trump is a threat to free speech?

Do you know what her sole justification for that position was? The President attacked the news media and declared them the “enemy of the people.” That was it. That was enough: words, not actions. Barack Obama’s administration bugged a journalist. Obama himself attacked Fox News. But Donald Trump threatened the First Amendment.

I don’t understand how such nonsense can come out of an educated person’s mouth without her hearing it and gasping, “Wait! That was completely ridiculous! What’s the matter with me? How did I get this way?”

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“You Have No Enemies” By Charles Mackay (1814-1889)

Let’s start the week with some poetic inspiration.

The excellent Netflix series “The Crown” launched its fourth season yesterday, with Scully herself, Gillian Anderson, delivering a brilliant portrayal of “the Iron Lady,” Margaret Thatcher. At one point, Queen Elizabeth (Olivia Coleman) warns the Prime Minister that she is making enemies, and she responds by reciting from memory this poem, which I had never heard or read before.

You Have No Enemies

You have no enemies, you say?
Alas! my friend, the boast is poor;
He who has mingled in the fray
Of duty, that the brave endure,
Must have made foes! If you have none,
Small is the work that you have done.
You’ve hit no traitor on the hip,
You’ve dashed no cup from perjured lip,
You’ve never turned the wrong to right,
You’ve been a coward in the fight.

Mackay is not well-known in the U.S., and he was a marginal literary figure in England. But in 2019, a confidante of Thatcher’s revealed that she turned to the writings of Mackay for solace and inspiration, particularly “Enemies,” which she kept in her scrapbook.

I’d describe the poem as a simpler, more direct predecessor of Theodore’s Roosevelt’s famous “The Man in the Arena” speech. (Teddy did go on.) Mackay’s poem has the advantage of being suitable for children, who need to be taught, as do almost all of our current politicians, that popularity isn’t everything.

“How Is Rewarding Unethical Behavior Ethical?”

Every now and then a comment on Ethics Alarms that I have not answered personally sticks in my brain like a musical earworm, literally keeping me awake at night. This was one of those times. That proclivity is one reason I have made over 50,000 comments on my own blog among the 300,000 here in the decade Ethics Alarms has been in existence. The vast majority of bloggers don’t do that; most don’t comment at all. I do it because, in addition to the biological need for sleep, I designed this forum to be a colloquy and an ongoing ethics seminar as much as a platform for my own analysis.

This time, the comment that stuck in my brain like “Thank-You Girl,” the Beatles’ all-time earworm, began,

“How is rewarding unethical behavior ethical?”

The comment came as a response to yesterday’s post explaining why it would be best for all concerned  if President Trump would stop claiming that the election was “stolen” or “rigged” (though it was both) and concede with graciousness and honor now that the chances of his prevailing in the Electoral College are vanishingly small.

I could answer that question in two sentences, or with a book. I will try mightily to come much closer to the former than the latter.

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Remember, At The Bottom Of Pandora’s Box Was Hope! Comments Of The Day: “Comment Of The Day: Wednesday Ethics Windstorm,11/11/20: Liars, Knaves, Fools And Birds”

pandoras box

Boy, things are getting gloomy around here. Fortunately, I have in my metaphorical ethics holster not one but TWO sterling and inspirational Comments of the Day posted in response to Steve Witherspoon’s expression of ( I’m sure temporary) despair by a pair of the form: Glenn Logan and occasional Ethics Alarms columnist Mrs. Q. And here they are, back to back Comments of the Day on the post, “Comment Of The Day: Wednesday Ethics Windstorm,11/11/20: Liars, Knaves, Fools And Birds,”

First, Glenn Logan:

Steve, this is a grim comment to be sure. I doubt if I can elevate your mood, but I will make a couple of observations:

There are so many openly anti-Constitutional, anti-American, anti-freedom, anti-civility and anti-rule of law things being done and said by political leaders and common citizens across the USA and it’s been going on for so long now that I really am to the point that I truly and actually believe that all the societal signs are showing us that the United States of America is on its way towards some form of totalitarian styled socialism/communism and it will likely happen in my lifetime.

I don’t totally agree, but I do agree that this is a danger. I am heartened by the resurgence of the Republicans in the house and the conflagration of so much Democratic money attempting to unseat Republican incumbents. The Democrats burned almost 70 million dollars in the senate race in Kentucky alone (against 30 MUSD for McConnell) only for the pleasure of being curb-stomped. McGrath posters and ads blanketed the media and the streets, outnumbering “Team Mitch” 100-1 even in the most conservative areas of Kentucky, and that money might as well have been dropped in a bottomless hole for all the good it did.

That tells me the signal of freedom is still getting out there, and being heard.

The flood of new subscribers to Parler, MeWe and other alternate social media is heartening. The defenestration of Fox News after its sudden left turn is heartening. The bare margin of the presidential election even after rampant fraud and a non-stop 4-year fully-paid-for media campaign commercial for the Democrats is heartening. There are silver linings to be found, dark as the clouds may be.

There is more than just a little hope, but your point is not unworthy — there is also grave danger.

Biden’s statement’s about unity, Republicans are not our enemies and working together in peace are a rhetorical smoke screen from an empty suit puppet of the extreme political left.

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NOW President Trump Should Concede [Corrected]

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When I noted in last night’s ethics update that North Carolina’s Electoral College votes had been added to the Trump column, I was not aware that that Georgia had been called with Biden in a small but likely uncatchable lead (nonetheless, a recount is underway that will be complete on Wednesday: thanks to James Flood for the correction). Without Georgia, there is no sliver of a path for the President to be re-elected now. The Biden-Harris ticket has 307 EC votes, well above the 270 threshold required for election. RealClearPolitics, one of the very few news sources that did not display open bias and worse, a desire to push the election to a conclusion they favored, has the race marked as decided.

President Trump should make his concession speech today. He has a duty to concede as soon as possible, for the good of the country, in fairness to President-Elect Biden, and, though I doubt anyone could convince him of this (though I would love to have the opportunity to try), himself.

The President should do everything in his power to establish a clear contrast with the irresponsible conduct of Hillary Clinton after her defeat in 2016. She set out to undermined Trump from the beginning by refusing to accept that her loss was genuine and legitimate, thus setting the stage for a four-year effort by Democrats, the “resistance,” and the news media (the “Axis of Unethical Conduct”) to withhold national support of his leadership and wreck his term in office by unscrupulous and despicable means.

One reason this conduct by Clinton and her supporters was so destructive is that it created a precedent that risked being followed going forward to future elections, permanently weakening what had been a strength of American democracy. The President can go a long way toward undoing that damage. I think it is crucial to our national health that he do so, and the sooner the better.

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