Daybreak Ethics Warm-Up,12/4/2020: An Ancient Judge, A Non-Binary Actor, An Idiotic Team, An Icky Teacher, And An Absurd Columnist Walk Into An Ethics Bar…

1. Political, not logical, honest or competent…Actress Ellen Page, 33, best known for her performance as the pregnant teen in “Juno,” announced this week that she was “non-binary” trans. “My pronouns are he/they and my name is Elliot. I feel lucky to be writing this. To be here. To have arrived at this place in my life,” she wrote. Immediately, Netflix began changing Ellen Page’s name to Elliot in the credits all Netflix movies and series she had participated in. Now, for example, the IMDb page for the Netflix original series “The Umbrella Academy” says Elliot Page was in the cast. This is being called an “update.” It isn’t an update. It’s a lie, and airbrushing history.

When Al Hedison starred as “The Fly” in the original horror movie, that’s who he was. Later, Al changed his name to David Hedison for some reason, and that was the actor we watched in “Voyage to the Bottom of the Sea,” Irwin Allen’s wonderfully cheesy Sixties TV sci-fi series, and as one of the many Felix Leiters in the James Bond films. They didn’t change his credit on “The Fly.” Nor do you see the name Jack Palance in the credits as the evil gunslinger in “Shane” In that film, the actor we now know as Jack was going by “Walter.” And that’s who he was…then.

Identities are not retroactive. Actress Linda Day had a substantial career in television before she met and married actor Christopher George in 1970. Thereafter, she performed under the name of Linda Day George, but no one changed her credits on the shows she had previously performed in as Linda Day, because Christoper George was barely a twinkle in her eye then. This isn’t hard. Netflix is rushing to retroactively alter history not because doing so is accurate or true, but to demonstrate that the company is “woke,” and thus supporting Page as well as trans people everywhere. It’s virtue-signaling, and a particularly dumb and misleading version of it.

Oh, I should mention that Olympic athlete Bruce Jenner was not Caitlyn Jenner when he won his Gold medals in male events. Olympic records were not changed to claim a falsehood and an impossibility.

2. “Was that wrong? Should I not have done that?” The New York Daily News reports that a Staten Island high school teacher, so far unnamed, was seen naked and masturbating during a Zoom conference this week.

Apparently he tried to invoke Rationalization #3, The Unethical Role Model: “He/She would have done the same thing,” pointing out that “Jeffrey Toobin did it!” (Kidding!)

As with Toobin, I don’t understand the thought process, if you could call it that, that could produce such conduct. I also don’t understand the various statements in the aftermath of the Staten Island incident as described in the story. It wasn’t clear if the teacher intentionally exposed himself or if the video call involved students, the Daily News noted. So what? The conduct is nuts and requires firing for cause either way. I suppose intentionally behaving like this on Zoom is a crime, or more likely, evidence of mental illness.

I also enjoyed the Captain Obvious aspect of the statement by the school:

Continue reading

Now THIS Is An Incompetent Judge…

oops

U.S. District Judge Patricia Minaldi was removed from St. Charles, Louisiana jury trial for criminal fraud in February, then her replacement declared a mistrial. Nobody knew why until the Associated Press got transcripts unsealed. They do not give one great confidence in the management of the justice system.

In one unsealed transcript (PDF), federal prosecutors and a public defender jointly called  U.S. District Judge Donald Walter ,who took over the case from Minaldi,  to ask him to grant a mistrial. The chief judge had assigned Walter to the case in an order that cited Minaldi’s inability to be present at the trial, but provided no additional explanation.

Minaldi was unable to be present because she doesn’t have the requisite awareness of the world around her or of the requirements of her job to be a judge. The botched trial included this ominous incident:

On the last day of the trial before it was suspended, Assistant U.S. Attorney Robert Moore was questioning a witness about the defendant’s grant application which had been filled out on a computer. Judge Minaldi interrupted the witness to ask what a “drop-down box” and “drop-down menus”  were.

“I have no idea what that means,” Minaldi said, regarding the reference to drop-down menus.  “No offense, but if I don’t understand it, I don’t think anybody else is going to understand it,” she continued. “I’ve been to law school. I’ve been doing this for 30 years. I have no idea what y’all are talking about.” After another question—Minaldi didn’t understand references to “Y’s and yeses” in relation to the answers to yes or no questions on the application—the judge recessed the court for lunch.

“Get your act together. Okay,” Minaldi told Moore. “I have no idea what’s going on here. Get your act together.”

Because it was HIS fault she had no idea what was going on. Continue reading

From The “I Told You So” Files: Judge Kopf Finally Decides To “STFU”

There go de judge!

There go de judge!

Last year, I wrote a post about the intemperate blogging of Judge Richard G. Kopf, a senior district court judge on the U.S. District Court for the District of Nebraska. Actually intemperate doesn’t quite describe it: in his criticism of the Supreme Court’s decision in the Hobby Lobby case (the Ethics Alarms discussion is here) he wrote, “As the kids say, it is time for the Court to stfu” and linked to the Urban Dictionary so his less cool readers would take his meaning. I wrote:

That he did this on his blog, Hercules and the Umpire, doesn’t matter. It was in print, in public, and he’s a Federal judge. The obscenity came in the context of Judge Kopf’s criticism of the recent Hobby Lobby decision, but the context doesn’t matter either. There is no context in which it would be appropriate, judicial and ethical for a member of the judiciary to tell the Supreme Court of the United States to shut the fuck up. Nor does it matter that he used the texting code stfu rather than spelling out the words.

For a Federal judge to be openly disrespectful, uncivil and abusive to the top of the nation’s judicial branch is an assault on the rule of law, and undermines public respect for our institutions…. If the objective is to speed a complete breakdown in public respect for our institutions, divisive partisans like Kopf  and Wilson are doing a bang-up job. Neither they, nor you, nor I will like where this will lead if our leaders and officials don’t come to their senses.

This post, of all posts (I don’t think my position is rationally assailable, frankly) managed to get three commenters banned from the blog, essentially by 1) arguing that the Roberts Court doesn’t deserve the usual respect due to any court, and 2) telling me to “stfu.”  All were Judge Kopf acolytes who weren’t going to stay here to contribute anything positive, just uncivil, arrogant progressive lawyers who the judge-blogger had trained well.

Last month, a year after his obscene riff on SCOTUS, Kopf slipped again, writing that  “Senator Ted Cruz is not fit to be President.” The post wasn’t obscene; in fact it was  funny: Kopf, who had a year earlier condemned the Supreme Court for bias, argued that Cruz was not fit to be President because…

“Any rational person understands that we must accept decisions we like and decisions we don’t like when we ask the highest Court in the land to decide difficult hot button questions for an entire country. Judicial retention elections are fine for Nebraska and all the other states that have developed unique and parochial histories and traditions. However, we are talking about a federal Constitution–one that protects and covers 320 million people from Maine to Hawaii. Given the fractious divisions in our country that exist now (and many times in the past) and the obvious geographical fissures among the states (Red State/Blue State), judicial retention elections, fueled by whether a majority likes or dislikes particular Supreme Court rulings at a given point in time, is a formula for chaos and for further dividing our country into factions, a well placed fear held by the Founders.”

Wait…who is this guy? Surely he bears no relation to the sneering, potty-mouthed anti-Supreme Court critic I wrote about the last time? Continue reading

Dear Political Blogs: Be As Partisan As You Like, But Don’t Make Your Readers Stupid

It's a coincidence that Monsanto had the better legal argument each time, yes. Is that what you mean?

It’s a coincidence that Monsanto had the better legal argument each time, yes. Is that what you mean?

It pains me greatly when a Facebook friend (and real friend too) posts something from a right-wing or left-wing website that is ignorant and misleading, as if she has something enlightening to share. Then I am forced to point out that 1) the post was written by someone pretending to have knowledge he did not; 2) those agreeing with him and assuming he had a valid point are hanging out with like-minded partisans who reinforce each others’ happy misconceptions, and 3) that the lawyers who cheer on conclusions that can only be explained by the fact that the concluder can’t spell law, much less under stand it. This typically loses two to ten names off my Facebook friends list. Well, too bad. They should be ashamed of themselves.

The case I have in mind: a site called “Forward Progressive: Forward Thinking for Progressive Action”—hmmm, I think it is a progressive site!—attacked Clarence Thomas for his participation in the recent SCOTUS decision in Bowman v. Monsanto. The Court ruled for Monsanto in a patent case against farmers in a matter involving the reproduction of products whose patents have expired. To Dyssa Fuchs, the writer for Forward Progressive in this case, Thomas had a clear conflict of interest and should have recused himself.

She cites the judicial code, she cites the U.S. statutes, she–of course—cites her belief that Monsanto is evil, and of course, like all good progressives, she hates Thomas, who has the effrontery to be both a hard-core conservative and black. The fact is, however, that she has no idea what she is talking about. Thomas had no conflict of interest in this case, nor does he have an “appearance of impropriety” problem because someone determined to prove that he is corrupt doesn’t understand what improprieties or judicial conflicts are, or for that matter, what lawyers do. Continue reading

Judges At Work

Supreme Court protests

In the threads here stemming from Judge Kopf’s impolite and unprofessional verbiage directed at the Supreme Court, some members of the Nebraska federal jurist’s fan club have sought to justify his incivility by asserting that the judicial system itself is “broken,” and that, more specifically, judges ought to just concern themselves with judicial errors of their lower court colleagues and eschew political controversies, such as, I must presume based on the context of the judge’s compliant, when the other branches of the government break laws and violate constitutional principles.

To say that I’m cynical about this argument understates the case.What it means, I believe, is that members of one partisan orientation believe that the system is broken as long as judges who do not share their progressive biases are in a position to rule on various controversies where judicial intervention is necessary and appropriate, but will no longer be considered “broken” once progressive-minded jurists are in a position to do the intervening, whereupon the critics like Judge Kopf will drop their objections.

The fact that the system is not “broken” and that judges are doing their jobs when called upon to protect the public from abuse of power was illustrated by two events this week: Continue reading

Ethics Dunce: Federal Judge Richard G. Kopf

"Oh dear...and he looks like such a NICE federal judge!"

“Oh dear…and he looks like such a NICE federal judge!”

Richard G. Kopf is a senior district court judge on the U.S. District Court for the District of Nebraska, and a blogger. He is also,I would say obviously, an Ethics Dunce. Why?

He told the U.S. Supreme Court to shut the fuck up.

He really did.

That he did this on his blog, Hercules and the Umpire, doesn’t matter. It was in print, in public, and he’s a Federal judge. The obscenity came in the context of Judge Kopf’s criticism of the recent Hobby Lobby decision, but the context doesn’t matter either. There is no context in which it would be appropriate, judicial and ethical for a member of the judiciary to tell the Supreme Court of the United States to shut the fuck up. Nor does it matter that he used the texting code stfu rather than spelling out the words.

For a Federal judge to be openly disrespectful, uncivil and abusive to the top of the nation’s judicial branch is an assault on the rule of law, and undermines public respect for our institutions. As lawyer and blogger Rich Hasen wrote, Continue reading

Appearance of Impropriety I: Federal Judge in a Whites Only Club? Ethical, As Long As He Doesn’t Like The Policy. Wait…WHAT?

Our Motto: "Trying to find a qualified black member for 110 years...and still looking!"

Is it an ethical violation for a Federal judge to belong to a whites-only country club?

Sure it is. Was that so hard?

Apparently for a judicial appeals panel in Tennessee, it is.

In May of 2008, an anonymous woman complained to the chief judge of the 6th Circuit Court of Appeals that Federal bankruptcy  Judge George Paine II’s  membership in the ritzy Belle Meade Country Club violated the judicial ethics code of conduct that decrees that judges “should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  This was a reasonable complaint to make, since the judicial codes for both Federal judges and Tennessee judges say that…

 CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

2 C   A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin. Continue reading