fairness

Ethics Quote Of The Week: Peggy Noonan

/ Jack Marshall / 8 Comments

“Why does all this matter? Because we are losing history. It is not the fault of Hollywood, as they used to call it, but Hollywood is a contributor to it. When people care enough about history to study and read it, it’s a small sin to lie and mislead in dramas. But when people get their history through entertainment, when they absorb the story of their times only through screens, then the tendency to fabricate is more damaging. Those who make movies and television dramas should start caring about this. It is wrong in an age of lies to add to their sum total. It’s not right. It will do harm.”

—-Former Reagan speechwriter and current columnist Peggy Noonan, after citing the material historical misrepresentations in the Netflix series “The Crown” and the new Spielberg film, “The Post.”

I have written about the ethics of misrepresenting history in films many times, always facing the “Lighten up! It’s just a movie!” chorus. As Noonan explains deftly, the stakes are different now, in an age of rotten public education, mass media and internet indoctrination. The first time I wrote about this issue was 2010, in the post “Titanic” Ethics. It concluded in part,

I don’t blame Cameron for not basing his portrayal on evidence that only was clarified years after his film. I fault him for discounting the testimony of survivors, and misinforming the public by plastering a false version on a giant screen for millions to see, knowing that they would trust that a man who would insist that the doomed ship’s china pattern was accurate…Now the film is back, bigger than ever, and false representations of Officer Murdock, “Unsinkable” Molly Brown, the sinking itself, and other aspects of the iconic event will be embedded even deeper into our historical understanding. It didn’t have to be that way, and it is wrong that it is. History, the public, and the 1500 who died that night in 1912 deserve better.

I’ve seen “The Crown,” and like it a lot. The portrayals that Noonan complains about, however, especially the suggestion that Jack Kennedy abused Jackie, rang false immediately. As for “The Post,” which I haven’t seen, Noonan calls out a misrepresentation of a cultural villain whom the film-makers probably thought nobody would rise to defend: Continue reading →

Morning Ethics Warm-Up, 12/28/2017: Bad Lawyer, Bad Losers, Bad Lottery, Bad Policy

/ Jack Marshall / 10 Comments

 

GOOD MORNING!

1 Gee, I wonder how this happened? I’m doing a year-end legal ethics seminar for D.C. Bar members this afternoon, and this story showed up in time for me to use. A federal jury has found Evan Greebel, the former lawyer for convicted fraudster Martin “Pharma Bro” Shkreli guilty of helping the fick pharmaceutical executive craft a scam to repay defrauded investors. You remember Shkreli—this guy, who entered the Hall of Infamy for his unapologetic price-gouging of the HIV drug Daraprim after he bought the rights to the drug and  then hiked its price from $13.50 to $750.

Prosecutors  claimed Greebel, Shkreli’s lawyer during  scheme, gave his client detailed advice on how to pay off investors in his  hedge funds, MSMB Capital and MSMB Healthcare, with his company’s  funds, as well as how to circumvent trading restrictions. He was also was accused of participating in fraudulent backdating of documents and helping draft phony settlement and consulting agreements. Greebel’s lawyers countered that Shkreli was an evil manipulator who dragged his own lawyers, unaware, into his crimes. his own lawyers. Greebel, they said, acted in good faith as the outside attorney for Shkreli’s company, and lacked criminal intent.

The news story ends with this:

“Greebel, a partner with Katten Muchin Rosenman, saw his annual salary triple from $355,000 in fiscal year 2013 to $900,000 in 2014, when he was advising Shkreli.”

The moral: Nothing freezes ethics alarms like a lot of money.

2. What do Roy Moore, Al Gore and Hillary Clinton have in common? They are lousy losers. Moore, the horrible GOP candidate for the empty Alabama Senate seat, has filed a lawsuit to try to stop Alabama from certifying Democrat Doug Jones as the winner of the U.S. Senate race. Moore lost by 20,000 votes, but insists that there were irregularities. He wants a fraud investigation and a new election. Once upon a time, even the losers in close elections where some funny things went on conceded gracefully and accepted the results. This was a traditional demonstration of respect for the system and democracy, and girded our elections from cynicism and distrust. Even Samuel J. Tilden, the Democrat who was cheated out of the Presidency despite winning both the popular and the electoral vote, acceded to the back room deal that gave Hayes the victory.

No longer. Al Gore permanently killed that tradition in 2000, and Hillary’s minions set the corpse on fire in 2016. Now losing candidates can be expected to exploit any excuse imaginable to try to reverse election results. This is a dangerous slippery slope the endless Florida recount put us on, and I fear that it will eventually slide into violence. Better that the occasional election be won illicitly than to have every election be a potential court case.

In other news, the determination of a tie-breaker to settle who won a decisive seat in Virginia’s House of Delegates has been delayed after lawyers representing Democratic candidate Shelly Simonds filed a motion asking a trio of circuit court judges to reconsider their decision to allow a controversial ballot to be counted as a vote cast for her Republican opponent.

Of course! Continue reading →

From The “UGH! Will They EVER Stop Making Me Defend President Trump?” Files: The Kennedy Center Honors Double-Bind

/ Jack Marshall / 63 Comments

I really, really wanted to bury this one in the Morning Warm-Up. I’m thoroughly sick of writing about the dishonest manipulation of facts and principle used to attack President Trump every day, many times, in the mainstream news media. I am sick of pointing out how unprofessional the Trump-hating publications are that uncritically publish screeds that they would never accept as meeting basic standards of ethical journalism if it weren’t for the identity their target: this President of the United States. I’m also sick of readding proyests from readers trying to rationalize such miserabl ejournalism and punditry. I know readers are sick of all of this too, but the important point is that gullible members of the public and partisan journalists are not sick of the tactic, or ready to play it straight.  They are counting on those who care about fairness, process and truth to give up before they do.

Well, they will wait a long time for me, especially when they publish opinion pieces as bad—misleading, unfair, and unethical— as this one, by playwright Sarah Ruhl.

Ruhl criticizes the President in inflammatory terms for not attending the Kennedy Center Honors ceremony as its host. The White House announced in August that the Trumps would not participate in the December 3 event in Washington, D.C. to avoid “political distraction.” “The president and first lady have decided not to participate in this year’s activities to allow the honorees to celebrate without any political distraction,”  Sarah Sanders said in a statement, adding that the president and Melania Trump “extend their sincerest congratulations and well wishes to all of this year’s award recipients for their many accomplishments.”

Ruhl criticizes the decision in the most inflammatory terms:

“In dictatorships, the artists are often the first to go. Or maybe they are the third to go, after the press and the intellectuals. The refusal of the president to celebrate them is a chilling and clear departure from American values. Perhaps the Trumps didn’t want to compete with the Obamas, who at the 2016 Kennedy Center awards received the longest standing ovation of the evening.”

What unbelievable gall!  Nowhere in Ruhl’s piece, which unflatteringly compares Trump to previous Presidents who attended the gala, does she mention a material fact. Did you catch the omission? Do you think Times readers and the people who are being primed to detest the President did?

The announcement that the Trumps would not be attending came only after honoree Norman Lear, creator of “All in the Family,” “Maude” and “Sanford and Son,”—and also of the ultra-left advocacy group People for the American Way—said that he would boycott the White House reception in protest of the President’s proposed funding cuts to the National Endowment for the Arts and the National Endowment for the Humanities. His fellow 2017 honorees musician Lionel Ritchie and singer Gloria Estefan also hinted that they were considering making a snub of their host a centerpiece of the event. Continue reading →

Reluctant And Uncertain Ethics Observations On The U.S., Israel, And United Nations Squabble

/ Jack Marshall / 42 Comments

International relations is an ethical morass, and the Israel/Palestinian mess is an ethical morass inside an ethical morass. In international relations, gaffes turn out to be masterstrokes, and vice-versa, and my usual rejection of consequentialism doesn’t always fit. It is politics on steroids, and a never ending Ethics Train Wreck. Thus I approach the topic of the events that roiled the U.N. right before Christmas with trepidation. There were obviously ethical principles in play here, but beyond that, my certainty recedes like my hairline in 1976.

The background: On December 18, UN ambassador Nikki Haley vetoed an Arab-proposed Security Council resolution that rebuked President Trump’s decision to recognize Jerusalem as Israel’s capital and start the process of moving the US embassy there. All other 14 Security Council members supported the anti-American resolution, including U.S. allies Great Britain, France, and Japan. Then the UN General Assembly went on to pass a non-binding resolution disapproving of the Trump administration’s decision. Several more U.S. allies failed to vote with the U.S., including Canada and Australia, which abstained.  Before the general assembly vote, Haley announced the US was “taking names” of those voting against the US. and afterward, the U.S. held a party where the only countries invited were Guatemala, Honduras, Israel, the Marshall Islands, Micronesia, Nauru, Palau, and Togo, all of which voted with the U.S.

Finally, Haley announced that the U.S. had negotiated quarter billion dollar cut to the UN’s annual budget, saying  “We will no longer let the generosity of the American people be taken advantage of or remain unchecked.”

1 Was it responsible for the U.S. to condemn the actions of the nations, including its allies, that voted for the resolution in the Security Council and the the General Assembly?

The U.S. should be strong rather than weak, and must stand up for core principles. It is beyond argument that much of the hostility to the U.S. decision to move its embassy to Jerusalem was based on anti-Israel bigotry, which flourishes in many of the nations that voted against Israel and the U.s., notably France. The Obama policy was to generally allow the U.N. to direct the U.S., with Obama “leading from behind,” an oxymoron that was a euphemism for “not leading at all.” Many of the nations opposing the U.S. are Arab nations, Muslim nations, and nations who are worried about unrest in their large Muslim populations.

The assertion of a false moral equivalency between Israel and the Palestinians among a majority of the world (and a lot of Democrats) should not be enabled. The Palestinians still officially refuse to acknowledge Israel’s right to exist. British UN Ambassador Matthew Rycroft, for example, said that “The status of Jerusalem should be determined through a negotiated settlement between the Israelis and the Palestinians} and that that Jerusalem must “ultimately be the shared capital” of Palestine and Israel. Yes, that will work well, with the Palestinians still refusing to acknowledge Israel’s right to exist.

The status of Jerusalem, like the status of Palestine, is what is technically known as “all messed up.” In 1949, Israel’s first Prime Minister, David Ben-Gurion, proclaimed Jerusalem as Israel’s “eternal” and “sacred” capital, saying that only hostilities against Israel  had “compelled” its  leadership to establish the seat of Government in Tel Aviv.  “For the State of Israel, he said, “there has always been and always will be one capital only – Jerusalem the Eternal. In 1950 all branches of the Israeli government—legislative, judicial, and executive—were moved to Jerusalem, except that the Ministry of Defense, stayed in Tel Aviv. At the time of Ben Gurion’s proclamations Jerusalem was divided between Israel and Jordan and thus only West Jerusalem was proclaimed Israel’s capital. Then, in 1980, Israel passed the  Jerusalem Law, which declared Jerusalem the “complete and united” capital of Israel. In response, the United Nations Security Council passed Resolution 478 that same year, declaring  the law  “a violation of international law.”  “null and void” and that it “must be rescinded forthwith.” Member states were told to withdraw their diplomatic representation from Jerusalem, and 22 of the 24 countries that previously had their embassy there moved back to Tel Aviv.  In 1995, under President Clinton, the United States Congress passed the Jerusalem Embassy Act, which required, subject to conditions, that its embassy be moved from Tel Aviv to Jerusalem.

Whether the U.S. tactics will work out well or not is a matter of conjecture, and impossible to know. Are they ethical? Sure they are, compared to the alternative.

2. Was Haley’s Trumpian, tit-for-tat, we take this personally and you’ll regret it rhetoric responsible and ethical? Continue reading →

From “The Ethics Incompleteness Principle” Files: Memphis, Tennessee’s Confederate Statues

/ Jack Marshall / 93 Comments

A better application of the Ethics Incompleteness Principle would be difficult to find than the decision by Memphis, Tennessee to remove a huge monument to Jefferson Davis, the president of the Confederacy, and an even larger heroic equestrian statue (above) of Nathan Bedford Forrest, swashbuckling Confederate general and (allegedly) the first Grand Wizard of the Ku Klux Klan,  from two public parks.

As we have discussed here in great detail, I am unalterably opposed to the current mania among our Left-leaning friends and neighbors  of tearing down statues, monuments and memorials honoring  past historical figures because their lives, beliefs and character do not comport with current day standards or political norms.  This primitive exercise in historical censorship has been especially focused on famous and notable figures from the Confederacy, although recent efforts have targeted George Washington, Thomas Jefferson, Andrew Jackson and even Theodore Roosevelt. Of the attacks on memorials to Confederate figures, I wrote,

[ Union veterans]  didn’t think of the former Confederates as traitors, or racists, or slavery advocates. They, like the Union veterans, were just men of their times, caught up in a great political and human rights conflict that came too fast and too furiously for any of them to manage. They were caught in the same, violent maelstrom, and knew it even 50 years earlier. Soldiers on both side wrote how they admired the courage of the enemy combatants they were killing, because they knew they were, in all the ways that mattered, just like them. It was the Golden Rule.  After the war, these soldiers who had faced death at the hands of these same generals, officers and troops, did not begrudge them the honor of their statues and memorials, nor their families pride in the bravery of their loved ones.

Yet now,  self-righteous social justice censors who never took up arms for any cause and in many cases never would, employ their pitifully inadequate knowledge of history to proclaim all the Civil War’s combatants on the losing side as racists and traitors, and decree that they should be hidden from future generations in shame. We have honored men and women for the good that they represent, not the mistakes, sins and misconduct that are usually the product of the times and values in which they lived. In doing so, we leave clues, memories, controversies, differing views, and stories for new generations to consider and better understand their own culture and society, and how it came to be what it is.

Those who want to tear down monuments to the imperfect, whether they know it or not, are impeding knowledge, perspective, wisdom, and understanding. They want only one view of history, because they will only tolerate one that advances their ideology and values—just as the Americans of the past believed in their values. Foolishly, I suppose, they trusted future generations to act on their own ethical enlightenment without corrupting the historical record.

I feel strongly about this, as the tone of that post, far from my first on the subject, shows.

But… Continue reading →

The New York Times’ “Lessons From A Year Talking Race”: Not Fake News, Just Divisive And Misleading Propaganda

/ Jack Marshall / 15 Comments

“Over the past year, we have hosted weekly live conversations about race and ethnicity on Facebook, tackling topics that ranged from black royalty to Latino baseball players to Asian-American slurs. RaceNYT, as we call the segment, is an extension of the crucial coverage on race — in America and beyond — that appears in The New York Times. We see it as a chance not only to explore important stories of race and what they mean to society, but also to give you, our readers and viewers, a chance to join the conversation.

These subjects are not always easy to talk about. Why, for instance, is affordable housing built mostly in poor, heavily minority areas? What are the terms about race that make us uncomfortable? And what do the United States and major institutions like universities owe the descendants of the enslaved people they profited from?

We explored these issues and more with a wide range of guests, including political strategists, filmmakers, academics and Times viewers. Here are five takeaways from the show…”

Thus spake the New York Times, online a couple of days ago, and in today’s print edition. What are stated as “takeaways” are, however, the product of confirmation bias, dubious assumptions, and efforts at political manipulation. For example…

Like racial minorities in the United States, Indigenous Australians are often relegated to the fringe of society, Craig Quartermaine, an Aboriginal television reporter and comedian, told us. “We’re window dressing,” he said.

Why this is unethical: Comparing the problems of Indigenous Australians to “racial minorities in the United States” is unsupportable. A comparison with indigenous North American populations would arguably be valid.

Madeline Vann reached out to us, wondering how she should handle the racially offensive remarks she was hearing in her community. She is a white freelance writer in Virginia.

Why this is unethical: Uh-uh. Ethics foul. You can’t tar a community like that without giving concrete examples. I live in Virginia: I almost never hear any “racially offensive remarks.” The New York Times core audience is the same group that believes it is “racially offensive” to object to NFL players using stadium time to issue half-baked protests they can’t articulate during the national anthem. The Times’ supposedly open inquiry on race begins with the assumption that the nation is racist. That’s called a bias. What kind of remarks are you talking about Madeline? How many, how often and from how many people?

“The first year of the Trump presidency has been marked by a vast racial chasm where perspectives often exist in different worlds.”

Why this is unethical: Wow, all that division in such a short time! This statement is deceitful. The reason there is a vast racial chasm is because the previous administration had eight years to put it there, and the because the news media fully committed to the project. The Congressional Black Caucus boycotted the Trump Inauguration, because part of the campaign strategy against him was to declare he was a racist, and that anyone who voted for him was a racist. That was a strategy developed into an art form to protect Barack Obama from legitimate criticism, and keep his loyal African American base angry and afraid.

Trayvon Martin’s death at the hands of a “white Hispanic” was politicized by Obama and the CDC to widen that “chasm,” and it occurred midway through the Obama years. In 2012, Joe Biden said that the Republicans wanted to put blacks “back in chains.” Black Lives Matter wasn’t a creature of the Trump administration. Black college students didn’t start demanding “safe spaces” without whites and special privileges after Trump’s election: they did it before. The historical airbrushing madness to use slavery to justify erasing any references to the confederacy was an Obama era phenomenon that has extended into Trump’s administration. The Oscars were bullied into making race a criteria for artistic honors during Obama’s administration.

The more I read that quote, the more misleading and intentionally dishonest it seems.

The Muslim-American activists Aber Kawas and Dalia Mogahed told us how they felt last month when the authorities quickly described an attack by a Muslim man in Manhattan as terrorism, while that term was never officially applied to a white man who fatally shot more than 50 people in Las Vegas weeks earlier.

“Pretty much we define terror attacks as something that’s done by a Muslim,” Ms. Kawas said. Continue reading →

Morning Ethics Warm-Up, 12/23/2017: Robots And “Star Wars” And Whiskers On Kittens

/ Jack Marshall / 64 Comments

Good Morning!

1 When Darth Vader cuts off Luke’s hand, that’s not news. When Mark Hamill bites the hand that feeds him…In recent interview, Mark Hamill, the one-trick pony, one-role actor who had been playing cameo parts on SyFy cable channel movies because he wasn’t enough of a draw to put in “Sharknado 6,” criticized how director Rian Johnson had him play Luke Skywalker in “Star Wars: The Last Jedi.” “He’s not my Luke Skywalker,” said Hamill in a recent interview, who originated the part four decades ago, when he had a career.

This is astounding ingratitude, and shows a lack of professionalism that suggests it wasn’t only limited range that strangled Hamill’s non-“Star Wars” prospects. The movie is still in theaters. The fact that he is in the latest trilogy at all is a gift. If he wants to knock the film in about ten years or so when he’s doing Fishin’ Magician informercials on cable and his comments get him 12 and a half minutes of fame on TMZ, that’s fine, but right now, he has an ethical obligation to the studio and his fellow artists to do everything he can to make the “Star Wars” geeks want to see the film.

You know Luke—can I call you Luke?—most of those other actors aren’t as lucky as you were, and don’t have a cushy guaranteed lifetime income from a single surprise hit that easily could have ended up on the second half of drive-in double features.

May the Force slap some sense into you.

2. Update: Governor Kasich is an idiot. But I bet you knew that. Yup, John Kasich signed into law that Ohio bill that made it illegal to abort a fetus diagnosed with Down Syndrome. This law is going to be struck down as unconstitutional, and it makes no sense. Signing it into law displays a bad combination of incompetence and cowardice.

BOY, that was a horrible crew of Republicans who all were thinking about Donald Trump, “Well, at least I know I can beat THIS guy!” I know many people like me, including some moderate Democrats, who were rooting for Kasich because he seemed preferable to having another Bush, the theocracy craving Mike Huckabee, the corrupt Chris Christie, weird Rand Paul, diabolical Ted Cruz, not-ready-for-prime- time Marco Rubio, dumb-as-a-box-of-whoopie-cushions Ben Carson, scary Carly Fiorina, or, as the alternative, the venal, inept and frighteningly ambitious Hillary Clinton. No, he’s a conservative hack with an honest face. This proves it. Continue reading →

Comment of the Day: “I’m Curious: Do Women—Any Women, A Lot Of Women, Adult Women, Rational Women—Think This Times Column Makes Sense? (Because It Doesn’t)”

/ Jack Marshall / 9 Comments

(This is sort of what Juliet has in mind, I think...)

Juliet Macur’s column in the New York Times calling for what was essentially Old Testament Biblical vengeance against one of the more recently accused sexual harassers disturbed me greatly, and the resulting Ethics Alarms post reflected my reaction.  Steve-O-in NJ picked up the baton, and the result was this, his Comment of the Day on the post, I’m Curious: Do Women—Any Women, A Lot Of Women, Adult Women, Rational Women—Think This Times Column Makes Sense? (Because It Doesn’t):

The principle that those who do wrong should not be allowed to profit from their wrongs is not without basis in either ethics or the law. It is that principle which gave rise to the “Son of Sam” laws that allow suits against convicted criminals by their victims or the victims’ families if they receive assets from the sale of their stories. It is also that principle that sometimes leads to “Son of Sam” clauses being worked into plea agreements, whereby any profits made from the sale of a pleading wise guy or terrorist’s story goes to the government. Much more than that, and you run into First Amendment problems. It’s also a given that courts can order restitution to victims as part of a sentence or as part of a plea deal.

However, as pointed out above, all of these legal principles involve, presumably, a wrongdoer who has either had his day in court or decided to forego his day in court in the hopes of better terms. Even in an employment or other civil setting, an accused wrongdoer is not without rights. A company who not only terminated an accused harasser but stripped him of his pension and whatever other assets came with the position, all without so much as an investigation, would almost unquestionably find itself on the wrong end of a lawsuit, and could conceivably lose, which is why a lot of those situations resolve with a more favorable deal. In this case, the accused is choosing to walk away before it even comes to that, and cash out.

Juliet Macur is looking for blood, or the equivalent. I know the feeling, we all know the feeling, and writers and sports entertainers the world over know how to exploit that feeling very well. That’s why thrillers almost always end with the initial wrongdoer dead and WWE kayfabe angles always end with the heel badly injured and humiliated. We all have that urge to jump to revenge, that snap reaction of “why that blankety-blank, I’ll teach him!” Continue reading →

I’m Curious: Do Women—Any Women, A Lot Of Women, Adult Women, Rational Women—Think This Times Column Makes Sense? (Because It Doesn’t)

/ Jack Marshall / 37 Comments

Jerry Richardson (above), the 81-year-old original owner of the Carolina Panthers in the NFL,  has decided that rather than ride out the sexual harassment allegations  recently reported  by Sports Illustrated, the wisest (and most lucrative course) will be to sell the team after this season. His profit will be somewhere in the billions, not that he isn’t a billionaire already.

New York Times sportswriter Juliet Macur is grievously offended by this, writing,

“Here’s what would make more sense: For Richardson to announce that the proceeds of the sale — or even just a couple hundred million? — would be donated to the women he harassed…[Many men] have been chased from the top of their professions for disgusting behavior involving women they worked with. They are suddenly pariahs, their reputations destroyed. But they remain very rich men, and their families, for generations, will be able to live off the financial rewards they collected while perpetuating these offenses….Richardson, who made his fortune in the fast-food industry, might be the richest of all the men accused in the #MeToo movement so far. Perhaps it’s appropriate, in a legal sense, that he is able to sell his company and walk off the stage. But it doesn’t seem morally fair that he should benefit so richly from it.”

This is pure, unadulterated emotionalism and indignation unfiltered by thought or coherent societal values. If these are the kinds of ethical arguments—and it is an ethical argument–major information sources are going to publish as worthy of being injected into public discourse, we might as well tear up the laws, forswear ethical systems, embrace passion, anger, vengeance and the rest as our sole tools to govern human affairs, and resign ourselves to chaos. Continue reading →

The Unprepared Judicial Nominee [Updated]

/ Jack Marshall / 12 Comments

 

Matthew S.] Petersen, a lawyer serving on the Federal Election Commission, was one of five President Trump judicial nominees to be questioned by the Senate Judiciary Committee last week. Senator John N. Kennedy, a Republican from Louisiana, subjected Petersen to questions regarding basic litigation law, such as the Daubert standard, which has to do with qualifying expert witness testimony, the definition of a motion in limine, and several other bits of information a junior litigator would have to have in his memory banks. The potential judge told the Senator that he had never tried a case or argued a motion in court. He said he last read the Federal Rules of evidence in law school. “I understand that the path that many successful district court judges have taken has been a different one than I’ve taken,” Petersen said.

Naturally, being a Trump nominee, Petersen is being widely mocked in the news media and by Democrats. Some legal experts have been more sympathetic, like Judge Wayne R. Andersen, who was a federal judge in the Northern District of Illinois for nearly 20 years. He told reporters  that there was a continuing debate within the legal profession about the qualifications required of a trial judge, saying, “Anyone who steps to the federal bench lacks a huge amount of federal experience necessary to do the job,” and that Senator Kennedy’s questions, while fair, “would eliminate 80 percent of the nation’s lawyers and many of the most talented lawyers.”

Lawyer/Blogger John Hinderaker wrote in part,

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?…does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

… Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence….Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench. I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.

I agree; he shouldn’t be ridiculed for that. Continue reading →