Morning Ethics Warm-Up: The “I Should Be At The Beach” Edition…

Good Morning!

Is everyone vacationing this week but me? I can detect such things from blog traffic—this week has been sparse. Unfortunately this is the legal ethics CLE busy season, so I have been furious preparing materials for three new three-hour programs: “The Legal Ethics Mine Field,” “Legal Ethics Squeeze,” and a new musical ethics seminar for the New Jersey Bar Association, “Ethics Blues,” with the talented Esther Covington. It features legal issues-stuffed parodies of such songs as “Copacabana,” “Sweet Caroline,” “Piano Man,” “You Made Me Love You,” “Isn’t It Romantic” and “Let it Be,” among others. I’ve been writing parody song lyrics since I was 9, and much as I enjoy it, it is mentally exhausting in a way nothing else is.

1.  The anti-Trump news media is all a twitter because former GOP Congressman Joe Walsh might challenge President Trump for the nomination. Joe Walsh!  He’s the only member of Congress ever designated a fick by Ethics Alarms, in this post, about how Walsh, a Tea Party fiscal responsibility hawk who once lectured Barack Obama about how he was placing a burden on the backs of Walsh’s children, owed  $117,437 in unpaid child support to his ex-wife and those already burdened, kids, three of them. For this and other transgressions he was defeated for re-election, and Joe’s now a talk show host, presumably with the same audience that took guidance from former radio bloviators Ollie North and Gordon Liddy.

2. On the innocent until proven guilty front…there has been a spate of defamation lawsuits lately in which priests accused of sexually molesting boys accuse the Catholic Church of ruining their reputations based on publicizing unsubstantiated accusations of pederasty.

A Fresno, California priest,  Craig Harrison, who is facing multiple allegations of sexual abuse, is suing an established  Catholic watchdog group Roman Catholic Faithful (RCF). seeking “unlimited” damages as a result of RCF President Stephen Brady’s “appearance at a press conference in Bakersfield” that addressed “allegations of sexual misconduct” made against Harrison. The lawsuit and summons were filed this month after the Bakersfield Police Department (BPD) concluded an investigation that it said  exonerated Harrison. Brady says that the lawsuit may be intended to discourage other ongoing RCF investigations. Continue reading

Obamacare’s Epitaph: “Live By The Rationalization, Die By The Rationalization”

obamacare-gravestoneRemember in 2010, when the Democrats ensured that the Affordable Care Act would clear its final hurdle to passage this way?

Democrats will finish their health reform efforts within the next two months by using a majority-vote maneuver in the Senate, Majority Leader Harry Reid (D-Nev.) said. Reid said that congressional Democrats would likely opt for a procedural tactic in the Senate allowing the upper chamber to make final changes to its healthcare bill with only a simple majority of senators, instead of the 60 it takes to normally end a filibuster.The move would allow Democrats to essentially go it alone on health reform, especially after losing their fillibuster-proof majority in the Senate after Sen. Scott Brown’s (R) special election victory in Massachusetts.

Republicans have protested the maneuver as a hyperpartisan tactic to ram through a health bill, and have said that plans to use the reconciliation process make moot a bipartisan summit at the White House this week, where both GOP and Democratic leaders are supposed to present their ideas on healthcare.

At the time, Republicans, as is their wont, over-stated their objections to the maneuver, calling it unconstitutional and a breach of rules. No, it wasn’t quite that, nor was it as unusual as the GOP claimed. It was within Senate rules, but still the first time it was ever used to amend a bill that had already passed the Senate via cloture, and under such contentious circumstances.  Reconciliation was legal, all right, but since the Affordable Care Act was so revolutionary and controversial, its passage needed to be seen as democratic, and it wasn’t. Democrats ignored the Golden Rule, and extended the acceptable use of reconciliation by using a number of rationalizations, as well as “the ends justify the means.”

Let’s see: “Everybody Does It” wouldn’t work, because the problem with using reconciliation was that everybody didn’t do it, at least not very often.  So Democrats opted for 13. The Saint’s Excuse: “It’s for a good cause”23. Woody’s Excuse: “The heart wants what the heart wants”#24. Juror 3’s Stand (“It’s My Right!”)25. The Coercion Myth: “I have no choice!”28. The Revolutionary’s Excuse: “These are not ordinary times.”31. The Troublesome Luxury: “Ethics is a luxury we can’t afford right now” 40. The Desperation Dodge or “I’ll do anything!”59. The Ironic Rationalization, or “It’s The Right Thing To Do”…and perhaps a few other rationalizations on the list. Continue reading

NOW Do You Agree That Congress Should Read Bills Before It Passes Them?


The Obamacare meltdown should not be cause for joy anywhere, although I can understand why the Republicans are giddy and conservative pundits are searching for ways to say “Didn’t I tell you?” in unobnoxious ways. There are no obnoxious ways. There is no worse feeling than knowing that a leader, a movement or a cause that you fervently believed in and defended against doubts and criticism was not worthy of your trust. For the politically and socially committed, comparing this experience to losing a loved one is no exaggeration. Are you in the habit of pointing at your neighbor and shouting, “Haha, your mother died! I told you she looked sick!”? Mocking and razzing the Democrats or progressives in your life is not much better.

We all, however, share responsibility for running this republic, and lessons must be learned. Back in 2010, I wrote of the process whereby the Affordable Care Act was passed…

“…Once the bills began to emerge, though, things got worse. They were far too long and convoluted to read and understand; this was incompetent and irresponsible. None of the Senators or Representatives (or the President himself) who advocated the bills in the most emphatic terms had read them, which is a breach of diligence, and many frequently made statements in public that misstated the provisions of the bill, sometimes egregiously. Not reading a technical bill on a well-understood or narrow matter and still voting for it may be common (though, I would argue, outrageous), but doing so with a massively expensive and complex bill affecting the life of every American is irresponsible and an abuse of power. This has continued. Politicians who the public should be able to trust are still making assertions of fact that are not facts they have independently confirmed, and they are insufficiently familiar with the details to either make fair arguments or inform the public.

“Since nobody could read the bill, this allowed the President and his allies to make general arguments that were often half-truths devised to mislead the public or avoid raising sensitive subjects. President made many “promises” about what would and would not be in the bill, knowing that they were promises he might well not be able or willing to keep. Indeed, the bill now being voted on fails to fulfill many of those pledges.  Important policy trade-offs that might erode support were not discussed, or misrepresented.”

This isn’t a partisan point, you know. I am sure that Republicans don’t read bills before voting for them either, but the practice is unconscionable, professional negligence and reckless, and if nothing else good comes out of this miserable blot on democracy, if the public finally demand that its law-makers read, understand and be candid about the laws they make, then something of value may lie beneath the rubble. Continue reading

Obamacare Defenders, Spinning

Are you hypnotized yet?

It would be nice, it really would, if partisans on both sides of a legitimate, close issue of national importance would admit that there are valid arguments on each side, show some mutual respect, and not frame their arguments as if anyone who thinks differently is deluded, stupid or evil.

Thus it has been elevating, if, I suppose, misleading, to read over a year’s worth of debate on the topic now under consideration by the Supreme Court, Obamacare’s so-called individual mandate, over on the scholar and lawyer- glutted blog, the Volokh Conspiracy. Written by distinguished and articulate academics, it is a right-leaning and libertarian site for sure, yet manages to cover all sides of most of the issues it considers thoroughly and fairly. Nobody could read the detailed, case and precedent-filled essays about the individual mandate and think for a moment that its constitutionality is an open and shut case. It’s obviously a very close question, and one that involves far wider implications than merely one health care law. This is one of the periodic landmark constitutional cases in which the Supreme Court is being asked to approve another key adjustment in the meaning of our remarkably flexible but hard to amend national by-laws, or, in the alternative, put up a red flag and a brick wall that reminds our government that there are some things is cannot do, even if it would dearly like to.

If you care about the case being argued in the Supreme Court as I write this, go read some—it would take you a month to read it all—of the discussions on this topic over at Volokh. If you can understand the sometimes technical and overly-dense writing, you will recognize how difficult a legal issue this is. If you can’t understand it, then stop rendering opinions about the case, the mandate, and the inevitability of its approval or rejection. Journalists and pundits should follow the same advice. Continue reading

Ethics Train Wreck Chronicles: Villains, Victims, Hypocrites and Unlikely Heroes In the Contraception / Limbaugh / Fluke Debacle

If this isn’t the Ethics Train Wreck of the Year, we have something truly horrible in store for us down the line. A no-so-brief brief re-cap:

  • The Obama Administration announces that church-run institutions like hospitals and universities will still be required to offer insurance coverage for abortions, sterilizations and other medical matters that might be in direct opposition to church beliefs. It’s a cynical move, designed to cater to the Democratic base at the expense of religious institutions. It is also irresponsible, since it jeopardizes the huge proportion of medical services performed by church institutions.
  • Conservatives scream that the measure is a breach of religious freedom. The is either ignorant or a lie. The Constitution has no provision requiring the government to make special accommodations for churches or church-operated institutions.
  • Caught by surprise by the intensity of the backlash, the Administration crafts a “compromise,” which is essentially deceitful sleight-of-hand, form over substance. The insurance companies now have to provide those services but the religious institutions don’t have to pay for it. But of course they will, through increased premiums elsewhere.
  • Flagging the deceit, Republican attacks on the measure continue. Democrats successfully frame the debate as a conservative attack on contraception, which it is a misrepresentation, and a “war on women,” which is ridiculous and unfair. The issue is churches being forced to provide or pay for services that violate their faith—which the government has every right to do.
  • The controversy activates GOP presidential candidate Rick Santorum, who is a fringe extremist in sexual matters and toes the Roman Catholic line. He really thinks birth control is immoral. This position, which is unethical, is suddenly given exposure it doesn’t deserve in the 21st Century Continue reading

Dear Former Rep. Dahlkemper: Oh, Shut Up!

Actually, this is just a cartoon of the former Congresswoman from Erie, but then a Toon could have cast a vote for a bill without reading it too.

Former Democratic congresswoman Kathy Dahlkemper, a Catholic from Erie, Pennsylvania, voted for the health care mega-law in 2010. Now she says she would have never voted for the  bill had she known that the Department of Health and Human Services would require all private insurers, including Catholic charities and hospitals, to provide free coverage of contraception, sterilization procedures, and the “week-after” pill .

In a press release sent out while the HHS ruling was still pending, the pro-life Dahlkemper said,

“I would have never voted for the final version of the bill if I expected the Obama Administration to force Catholic hospitals and Catholic Colleges and Universities to pay for contraception,. We worked hard to prevent abortion funding in health care and to include clear conscience protections for those with moral objections to abortion and contraceptive devices that cause abortion. I trust that the President will honor the commitment he made to those of us who supported final passage.”

To which I reply, “Oh, shut up!” Continue reading

In The Catholic Institutions vs Obamacare Showdown, Law and Ethics Trump Morality…And Should

The Christian Soldiers are on the wrong side of this argument.

A controversial rule, announced last month as part of President Obama’s health-care overhaul, requires religiously affiliated colleges and hospitals to provide female employees the full range of contraceptive coverage, including contraceptives, the “morning-after pill” and sterilization services. The measure has  Catholic Church-run institutions up in arms over a system that would force them would  to offer plans that contradict their teachings. Catholic bishops have been leading the growing criticism of the rule,  distributing letters and other materials for distribution to millions of worshipers. Talk radio is abuzz with talk of Obama’s escalating “war on religion.” Even the Washington Post editorial staff criticized the move.

Naturally, the Republican-run Congress announced, via Speaker Boehner, that it would protect Freedom of Religion and block the measure with legislation. All in all, it is a spectacular collision of law, morality and ethics the likes of which we seldom see.

As for simple-minded me, I don’t think this is an especially difficult problem from an ethical point of view. Politics? Practicalities? Culture wars? Yes, those are all extremely difficult considerations in this argument, but they are also not my proper realm. The ethics are clear.

President Obama is right. Continue reading

Ethics Hero: Judge Laurence Silberman

Here President Bush attempts to strangle Judge Silberman for being insifficiently loyal to conservative causes.

Judge Laurence H. Silberman, a senior judge on the federal appeals court, cast the deciding vote as the U.S. Court of Appeals for the D.C. Circuit  upheld, 2-1, the constitutionality of the controversial individual mandate. The mandate, which is almost certain to be reviewed by the U.S. Supreme Court, is the linchpin of President Obama’s health-care insurance law that requires most individuals to purchase insurance coverage or be fined.

You can hardly have more impeccable conservative or Republican credentials than Silberman. He served in the Nixon administration, was appointed by President Reagan to the court and is a Federalist Society stalwart as well as a favorite judicial scholar of the political right. An appeals judge shouldn’t be praised for doing his job, which is deciding cases based on the law and the Constitution rather than political loyalties or ideological bias. Unfortunately, political loyalties and ideology is how the press, partisan groups, elected officials and, it must be said, too many judges, do think cases are decided, and that belief  grievously harms faith in the justice system and trust in the rule of law. Continue reading

The Disgrace of the Health Care Reform Debacle, Brought Into Focus

Nice image. Unfortunately, the open book is "Catch 22"

“Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government’s taxing power. Some of these same academics have argued that opponents of the individual mandate’s constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps not even a single federal judge — who has accepted the taxing power argument. Not a one. And yet a half-dozen federal judges have found the mandate to be unconstitutional. So which arguments are outside of the mainstream again?”

Thus did Jonathan Adler, Case Western law professor and Director of the Center for Business Law and Regulation, chide the arrogant supporters of the health care reform act who dismissed as wackos and radicals critics who were alarmed at its intrusions onto personal freedom. The 11th Circuit Court of Appeals’ rejection of the individual mandate, the provision requiring all adult citizens to buy private health insurance, is the most striking proof yet of the arrogant, unethical, dishonest, corrupt and incompetent manner in which the Democratic majority passed its version of health care reform. Continue reading

Comment of the Day #3 on “Ethics Dunces: The Senate and House Leadership”

Come back, Ross! We need your charts!

The third Comment of the Day on this “Comment of the Day Friday” is an epic from Michael, expanding on the theme of my original post.

“I hate the fact that no one is talking facts, only ideology. In such an atmosphere, these selections make sense. The S&P statement said our downgrade was because we failed to tacked long-term indebtedness especially the main drivers of long-term debt: Medicare and SS, but no one really wants to deal with that. To talk facts, you really need some tables, figures, and analysis. I’m not just talking about politicians, here. Isn’t this the reason we tolerate the media? Aren’t they supposed to keep us informed of about things like this so we can then get outraged by such a stupid selection of people to ‘fix’ our problem.

“Why can’t we find a news outlet that will break things down like this?” Continue reading