The Democratic Party’s Unethical And Irrational Obsession With Diversity

There is mass outrage in the Democratic Party, we are told,  over the fact that Cory Booker and Deval Patrick won’t be on the debate stage in December’s candidate’s debate, and neither will former housing secretary Julián Castro, or Representative Tulsi Gabbard of Hawaii. True, Andrew Yang has qualified, but Asians don’t count as minorities to progressives, because they are so successful and don’t commit many crimes, heaven knows why.  That’s why Harvard can discriminate against them and get away with it. But I digress…

There’s just one reason Yang will be the only non-white candidate on the stage: the other minority candidates couldn’t justify their candidacy, even among the frightening weak competition of Joe Biden, Bernie Sanders, Elizabeth Warren, Tom Steyer, Pete Buttigieg, and Amy Klobuchar. Naturally, Democrats being Democrats and primed to blame any result they don’t like on racism, sexism or bias, this obvious example of democracy working the way it’s supposed to is being condemned.  Well, I should clarify that: It’s working the way I think it’s supposed to, the way the Founders thought it was supposed to, and pretty much the way everyone thought it was supposed to until progressives came up with the moonbat idea that results were only fair if they distributed benefits in strict accordance with demographic percentages, and were even better if they gave an edge to “historically disadvantaged minorities.”

Thus, even though the process of deciding the winners in the slow motion musical chairs of the Democratic nomination game seems to rely on who the voters think is best qualified, that process is, according to moonbattism, bad, as in racist and unfair, if the process doesn’t yield sufficient numbers of contenders with the  right skin shades. The party really thinks like this, or at least significant numbers of the party to render the entire party untrustworthy.

I don’t understand how anyone can responsibly put a party in power that has adopted such an obviously destructive and non-democratic position.

“What message is that sending that we heralded the most diverse field in our history and now we’re seeing people like her dropping out of this campaign?” Senator Booker asked a crowd in Iowa. He darkly suggested that Kamala Harris left the race “not because Iowa voters had the voice. Voters did not determine her destiny,” but because bigotry was afoot.

The message being sent , Senator, was that lousy candidates like Kamala Harris (and you), who bungled every debate and who appear to have no leadership qualities at all, don’t appeal to voters seriously looking for a President rather than a symbol, like Bracak Obama. It is deeply self-serving for Booker to attribute Harris’s failure to racism, since he appeals to even fewer voters than she did, and is also, like her, wearing skin in the darker range.

The New York Times gasps, “The Democratic primary is facing a reckoning. In two weeks, Democrats will gather in Los Angeles for a debate that is likely to feature an entirely white roster. That is not, several candidates and prominent party members say, how the party that emphasizes diversity and fairness should want to represent itself.”

How about the fact that none of the candidates on that stage appear to be competent, trustworthy or responsible? Shouldn’t that be more of a concern than the skin-tones of the various socialists and panderers debating each other?

Not in Democrat Quota Land, I guess. Here’s a howler from the Times that only a thoroughly brain-washed progressive zombie could read without laughing:

“Some blame the rules for qualifying for the debates. The polling requirements give an advantage to candidates who can invest in extensive television advertising to get their name out. Others note, however, that the candidates of color in the 2020 field have not drawn significant support from black and Latino voters.”

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The Scourge Of Technologically Ignorant Judges

The American Bar Association and most state bars have added an ethical requirement for lawyers to be competent and knowledgeable regarding relevant technology. In 2012, the ABA adopted an amendment to ABA Model Rule of Professional Responsibility 1.1, comment 8, providing that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” Since then, at least twenty-seven states have officially adopted Comment 8 or some version of it as part of their rules of professional conduct. It’s still a long slog; many lawyers, far too many, are limited to email and Google searches, and often aren’t sufficiently adept at either.  There should be such a requirement in every jurisdiction, and the ABA language is far too vague and lenient.

Judges, however, often make lawyers look like  cyber-whizzes. Here’s a ridiculous example from Franklin Country in Washington, where superior court judges disagreed with their clerk about transitioning from paper to electronic files.  The clerk “deemed it unnecessary” to incur the expense of maintaining duplicate paper files after a paperless filing system was implemented . The judges declared an emergency (!) and issued an order directing clerks to keep paper files. One gutsy, probably soon to be unemployed clerk refused. The judges then appointed a special prosecutor to pursue civil claims against the clerk. Continue reading

What I Do For Ethics, Or Misadventures In Travel Hell

Am I imagining this, or was air travel once efficient, comfortable, and enjoyable? I can’t be sure now; it seems impossible. Of course, as bad as it is, things would be a lot better if basic standards of competence and professionalism were observed, or even attempted.

I just arrived at my hotel in Providence approximately 2 and a half hours after I was supposed to. The delay isn’t the issue; I’m used to that, and if there’s weather, there’s weather. (There was weather.) This trip, however was special.

  • My flight took off from infamous Gate 35X, which is portal gate from which passengers board buses that take them to smallish jets scattered around the tarmac. It is always crowded, and you are tasked with listening for the announcement telling you to go down the stairs to the sub-gates and line up for your bus. That is more tricky than it sounds, because the area is pure cacophony: people talking,  announcements from nearby gates, a recorded announcement on a loop telling you not to go down the stairs until you’re told, and as a special bonus, not one but three American gate employees making announcements in various heavily accented forms of pseudo-English, spoken at auctioneer  speed. All three were intermittently incomprehensible; people were constantly turning to companions and asking, “What did she say?”

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

…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

A Jumbo! One More Time: If You Trust PolitiFact, You Are As Biased As They Are

“Airplanes? I don’t see any airplanes!”

There are no good political factchecking organizations. Some are more ethical than others. Snopes is terrible, biased, and unreliable unless it is really checking urban legends. The Washington Post’s Glenn Kessler tries, but he works in the progressive bubble of Democrats who run the place, and he is corrupted. The Annenberg Foundation’s Fact-Check.org claims to be non-partisan and often succeeds, but of late it too has entered political advocacy into a category that is supposed to be only about objective facts.

As a general proposition, it is fair to call the  exercise of “factchecking” inherently misleading and so ripe for abuse that any fact check by a media organization should be viewed with extreme skepticism.

This goes double for PolitiFact; indeed, someone saying that this is their favorite fact checker has triggered signature significance. Nobody who is properly sensitive to partisan bias and committed to objectivity can possibly trust PolitiFact, a feature launched by a Democrat newspaper, the Tampa Bay Times, and recently taken over by the Poynter Institute, which I once respected as a voice for ethical journalism. Like its industry, however, it is corrupt. Either that, or Poynter isn’t providing oversight for PolitiFact.

This is res ipsa loquitur. PolitiFact, like many other media hacks from the Left, meaning almost all of them, is trying to provide cover for the “Green New Deal” that the Democratic Party has foolishly embraced, by throwing up dust, word-salads and lies. The current approach is pure Jumbo, the Ethics Alarms category for a lie in the style and scale of Jimmy Durante’s classic, trying to steal an elephant and upon being stopped by a constable and asked what he was doing with a pachyderm on a rope, exclaiming, “Elephant? WHAT elephant?”

Here’s Politifact, lying: Continue reading

Ethics Warm-Up, 2/28/2019: No Birthday For Frederick Edition [UPDATED]

Good Morning!

Back last night from a whirlwind day of ethics in NYC, and leaving today on an auto safari to Washington County, Pennsylvania, where I will address bar members to kick off their annual meeting. See Facebook? THEY don’t think I should be muzzled! Meanwhile, I will be celebrating the non-birthday of the pirate apprentice hero of Gilbert and Sullivan’s “The Pirates of Penzance,” who was, you recall, indentured to a pirate band until his 2ist birthday, and since he was born on Leap Year, legally committed to a life of crime until he was 84 years old.

1. Nah, Democrats don’t automatically default to race-baiting… Well this was certainly ugly and embarrassing. During  House Oversight Committee hearing with Michael Cohen, the fallen Trump fixer accused the President of making racist comments about African Americans. Let me interject here that this was obvious pandering to Cohen’s new pals in “the resistance.” It would have no probative value as hearsay even if the speaker wasn’t testifying with his pants on fire. Thus there was no need for Rep. Mark Meadows to try to rebut Cohen by asking Housing and Urban Development staffer Lynne Patton, who is black, to silently stand before the committee to (somehow) disprove that Trump is racist. Meadows (R-N.C.) said that Patton had told him there was “no way that she would work for an individual who was racist.”

Then Rep. Rashida Tlaib (D-Mich.) characterized Meadow’s stunt as racist, saying, “Just because someone has a person of color, a black person working for them does not mean they aren’t racist,” Tlaib said. “And it is insensitive that some would even say — the fact that some would actually use a prop, a black woman in this chamber in this committee is alone racist in itself.”

“You’re one of my best friends,” Cummings said to Meadows. “And I can see and I feel your pain, and I don’t think Ms. Tlaib intended to cause you that, that kind of pain.”

Tlaib then apologized to Meadows, saying it wasn’t her intention to call him racist. She just said that what he did was racist.

Oh.

2. Stop making me defend the Northam family! Gotcha! Just as Virginia Governor Northam was beginning to extract himself from the embarrassment of having to confess to being a Michael Jackson imitator via shoe polish, an enterprising black legislative page decided to nab her 15 minutes of fame by accusing Mrs. Northam of the dreaded “racial insensitivity.” It appears that Virginia’s First Lady, while narrating a tour of the Governor, triggered her my alluding to slavery.

“When in the cottage house you were speaking about cotton, and how the slaves had to pick it,” the teenaged page’s letter says. “There are only three Black pages in the page class of 2019. When you went to hand out the cotton you handed it straight to another African American page, then you proceeded to hand it to me, I did not take it. The other page took the cotton, but it made her very uncomfortable. I will give you the benefit of the doubt, because you gave it to some other pages. But you followed this up by asking: ‘Can you imagine being an enslaved person, and having to pick this all day?'”

“The comments and just the way you carried yourself during this time was beyond inappropriate, especially considering recent events with the Governor. From the time we walked into the mansion to the time in the cottage house, I did not receive a welcoming vibe.”

Ah. Now we see why Bernie Sanders was attacked by Democrats for saying that race shouldn’t matter. Mrs. Northam treated the black pages like she treated the rest, and that made this page feel unwelcome. And if Virginia’s First Lady had only given the cotton to the white pages? That would have been insensitive too, I’m sure.

To her credit, the Governor’s wife has not apologized. She responded that she has given “the same educational tour to Executive Mansion visitors over the last few months and used a variety of artifacts and agricultural crops.” Her intent is to illustrate “a painful period of Virginia history.” She said that she began last year to tell the “full story” of the governor’s mansion, including the Historic Kitchen. “I believe it does a disservice to Virginians to omit the stories of the enslaved people who lived and worked there — that’s why I have been engaged in an effort to thoughtfully and honestly share this important story since I arrived in Richmond. I regret that I have upset anyone,” she wrote, but she reiterated that she is  still committed to chronicling the history of the Historic Kitchen, and “will continue to engage historians and experts on the best way to do so in the future.”

Now, if she had given the tour made up as Janet Jackson, that would have been inappropriate.

3. My own private boycott: I will not buy products that continue the coarsening of our culture by employing juvenile references to gutter language to sell their wares. Now Mr. Clean joins the list, with the ad for “his” Clean Freak Mist. Today’s TV ad screamed out “Big freaking news!” As with Booking.com’s evocation of “fucking” its ads, this is neither clever nor novel. Shrug it off if you like. Continue reading

Ethics Observations On “The Green New Deal,” Part II : What’s Going On Here?

In retrospect, waiting a couple of days before completing the Ethics Alarms analysis of the “Green New Deal” was a propitious decision. The results of the ethics, integrity and IQ tests that this fiasco represents can clarified considerably. The key question to begin most ethical analysis is “What’s going on here?” Well..what is?

1. Incompetence. The Ethics Alarms reader poll asking which of the provisions of the GND would, by themselves, mandate rejecting the leadership and judgment of any public figure endorsing them showed about 58% choosing “all of them,” with the infamous “providing economic security for all who are unwilling to work” coming in a distant second. I erred terribly in not providing a positive option for readers who see nothing wrong with Rep. Ocasio-Cortez’s batty manifesto. Ethics Alarms gets 3000-4000 visits a day, and surely some readers must have flunked this test. After all, Democrats are counting on a large segment of the population being similarly obtuse. This is my own bias at work. There are some episodes involving ethics where I really cannot comprehend how anyone with all their faculties and raised a U.S. culture can possibly reach a different ethics verdict that I have. Ethics is hard, but it isn’t THAT hard. The fact that there are, apparently, progressives and useful idiots who can read the screed without giggling is itself ethics alarms-worthy. The culture, including crucial components like education, journalism, and the world of politics, is failing our society by allowing warped perceptions and unethical values to take root. If this were not true, no elected official would dare propose a document like the Green New Deal.

2. Dishonesty and deception. It sounds like a mad conspiracy theory, but it is difficult for an objective observer not to conclude that the GND is part of a long-term plan of propaganda and indoctrination to replace American democracy with a leftist totalitarian regime. The kinds of measures being promoted in the GND—forget for a moment that most of them are literally impossible—cannot be achieved through democratic means, except in the broad sense of the public voting to give dictatorial powers to the government. The process flows from eco-fascism, which employs fear-mongering about an inevitable environmental catastrophe to provide justification for sacrificing individual liberty in the pursuit of “safety.” This is, as readers of world history knows, the traditional trade-off sold by totalitarian regimes. Yes, it is true that the quality of life and personal freedoms of the American public would both be severely constrained by the car-less, plane-less, nuclear energy-less, combustion engine-less, money-less and cow-less future that the socialist Democrats propose, but the alternative, we are told, is death and destruction. Academy Award-winning actress Ellen Page ranted on Stephen Colbert’s alleged late night comedy show (It is a partisan propaganda program with jokes) that “We have been told…that, by 2030, the world as we know it, that’s it. That’s it!” Colbert, who has the undeserved reputation as a truth-teller and sage, nodded sympathetically, saying that “until the water started swamping Manhattan, or just washes away Mar-a-Lago,” the public and media wouldn’t take the existential threat seriously. “You don’t want to think such terrible things are going to happen!”

Oh sure you do, if it will give you leverage to gain power over the nation. Continue reading

“Miracle On 34th Street”…An Ethics Companion: Introduction

As with most holiday movies, but perhaps more than most, the entire concept of digging into the ethics of the plot of “Miracle on 34th Street”  can be criticized as beside the point. The movie, at least the 1947 original, is a classic; it works dramatically and emotionally, it makes people feel good, and it has held up over time. That’s all a Christmas movie is supposed to do, and if it does it without really making sense or avoiding ethics potholes along the way, so what?

I sympathize with this view. However, our ethical standards and ethics alarms are affected by what we see, hear, like and respond to. If popular holiday movies inject bad ethics habits and rationalizations into our character, especially at a young age, that is something we should at least be aware of by the tenth or eleventh time we watch one of them.

One ethical aspect of “Miracle on 34th Street” that must be flagged at the outset is competence. The film is so effortlessly engrossing and convincing that it is easy to forget how easily it could have failed miserably. Actually, it is also easy to remind oneself: just watch any of the attempts to remake the film. There have been four of these, starring, as Kris Kringle, Thomas Mitchell, Ed Wynn, Sebastian Cabot, and Richard Attenborough. That’s a distinguished crew, to be sure. Mitchell was one of the greatest character actors in Hollywood history. Wynn was nominated for an Academy Award (for “The Diary of Ann Frank”) and Attenborough won one, Best Supporting Actor Award in 1967 for “The Sand Pebbles.” Cabot wasn’t quite in their class, but he was a solid pro, and looked more like Santa Clause than Mitchell,  Wynn, or Richard Attenborough. None of them, however, were as convincing as Edmund Gwenn. He made many movies—all without a white beard— and had a distinguished career in films and on stage, but even audience members who knew his work had a hard time reminding themselves that he wasn’t Kris Kringle while they watched the movie. I still have a hard time. Continue reading

Is Continuing Legal Education A “Farce”?

Continuing legal education, or as it is fondly called, CLE, began being a staple of bar membership in most states by the 1980s. The theory is that the law is always changing and new developments in case law and practice resources are essential for lawyers to know about, so in order to keep practicing in good standing, lawyers should be required to take a set number of training hours to keep up with current techniques and information. The practice is also designed to emphasize the law’s position as a self-regulating profession with exemplary dedication to excellence.

AND the new system allows the bar associations to require the purchase of a product the associations themselves develop, provide, and most important of all,  charge for.

Most lawyers, it is fair to say, loathe mandatory CLE requirements. They resent the time and expense, and generally feel that having to take the courses is an insult.

Yesterday a Virginia lawyer named Paul Sherman—he might even have attended some of my courses!–laid out on Twitter his brief that CLE course are a “farce that do nothing to protect the public and impose big social costs.: Right wing blogger and law prof Glenn Reynolds endorsed the screed, calling CLE a scam. I teach about 45 CLE seminars a year on legal ethics, and I’ve spoken on the subject to the CLE providers association, so this obviously piqued my interest.

Here is Sherman’s argument (and by the way, Twitter is a ridiculous platform for extended commentary):

Since I’ve just finished my last Continuing Legal Education class of the year, allow me to say that these requirements are a farce that do nothing to protect the public and impose big social costs. For those of you who aren’t lawyers (who know this already), allow me to explain.

To continue practicing law in the Commonwealth of Virginia, I am required each year to take 12 hours of continuing legal education (4 of which must be live) by Oct. 31. Collectively, Virginia lawyers lose more than 290,000 work hours to CLE every year. Almost every lawyer I know satisfies these requirements in the same way: by buying whatever CLE courses are cheapest, regardless of subject. This is not at all surprising, because competent lawyers already stay on top of developments in their practice areas.E.g., I exclusively practice constitutional law, but this year I took CLE courses in international taxation, asset protection planning, independent contractor compliance, etc. None of these have anything to do with my practice, and the VA Bar does not care!

Consider also the direct and indirect monetary costs. Let’s say CLE packages cost $100. According to the National Consumer Law Center, in 2015-2016, the average attorney in Virginia charged $358/hr. That means the cost of these requirements is almost $4,400 per attorney. The total cost for all Virginia lawyers is about $106 million. Yet, of that, only $2.4 million ends up in the pockets of CLE providers. The rest is just value that has been destroyed. Even if we assume (with extreme generosity) that lawyers would voluntarily pay for 6 hours of relevant CLE each year, you’re still losing $50 million in value per year (which is almost exactly Virginia spends on indigent defense annually). In short, we would all be better off if Virginia ended this farce, abolished mandatory CLE, and instead required every Virginia lawyer to send an extra $100 to the Bar and/or to set $100 on fire.

This seems to have touched a nerve, so let’s make this an actual thing. Contact your state bar (mine is @VAStateBar) and tell them to end the shakedown. #EndMCLE!

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