Ethics Hero: Supreme Court Justice Neil Gorsuch

The Supreme Court this week granted 19 states’ request to temporarily block a lower court ruling that ordered the Biden administration to end Title 42, and agreed to expedite review of the Biden administration’s effort to eliminate the use of an alleged continuing pandemic emergency to justify border officials skipping asylum processing details to quickly expel illegal immigrants. The end of Title 42 will create “a surge of [illegal immigrants] at America’s southern border,” says The Hill. That’s amusing, since there is already such a surge and has been since Joe Biden threw out a virtual welcome mat for those wanting to take the benefits of U.S. residents regardless of what our laws say. The proper phrasing would be “even greater surge than the unacceptable and irresponsible level being permitted already.”

U.S. District Judge Emmet Sullivan had directed the Biden administration to end the policy this month, but the Court’s unsigned order put the ruling on hold and effectively kept the so-called Title 42 policy in place for now. This pleased opponents of the ongoing efforts by Democrats to allow as many illicit immigrants into the U.S. as possible, but many were surprised that the six Justice conservative majority didn’t follow the desires of Republican state attorneys-general en masse. The three-justice progressive minority dissented from the opinion in lock-step, as we would expect, and Justice Neil Gorsuch dissented from his conservative colleagues, based on law, principle, integrity and the Constitution. He wrote in part,

The States may question whether the government followed the right administrative steps before issuing this decision…But they do not seriously dispute that the public-health justification undergirding the Title 42 orders has lapsed. And it is hardly obvious why we should rush in to review a ruling on a motion to intervene in a case concerning emergency decrees that have outlived their shelf life….The only plausible reason for stepping in at this stage that I can discern has to do with the States’ second request. The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it. The only means left to mitigate the crisis, the States suggest, is an order from this Court directing the federal government to continue its COVID-era Title 42 policies as long as possible…For my part, I do not discount the States’ concerns. Even the federal government acknowledges “that the end of the Title 42 orders will likely have disruptive consequences.”

But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

Well, bingo. Continue reading

More Evidence Of Ethics Rot In The Legal Profession

The combination of The Great Stupid washing over the land, woke indoctrination and bullying, and the politicization of everything has perhaps taken its greatest toll on the trustworthiness of the professions. One after another has succumbed to ethics rot to an extent that one would have been unimaginable. The legal profession has been especially ravaged.

A depressing and horrifying op-ed in the Wall Street Journal told the first-hand account of how the writer was fired from her law firm, Hogan Lovells, for daring to express an opinion that was not deemed compliant with current progressive cant. She wrote in part,

After the Supreme Court issued its Dobbs decision overturning Roe v. Wade in June, global law firm Hogan Lovells organized an online conference call for female employees. As a retired equity partner still actively serving clients, I was invited to participate in what was billed as a “safe space” for women at the firm to discuss the decision. It might have been a safe space for some, but it wasn’t safe for me.

Everyone else who spoke on the call was unanimous in her anger and outrage about Dobbs. I spoke up to offer a different view. I noted that many jurists and commentators believed Roe had been wrongly decided. I said that the court was right to remand the issue to the states. I added that I thought abortion-rights advocates had brought much of the pushback against Roe on themselves by pushing for extreme policies. I referred to numerous reports of disproportionately high rates of abortion in the black community, which some have called a form of genocide. I said I thought this was tragic.

The outrage was immediate. The next speaker called me a racist and demanded that I leave the meeting. Other participants said they “lost their ability to breathe” on hearing my comments. After more of the same, I hung up.

Someone made a formal complaint to the firm. Later that day, Hogan Lovells suspended my contracts, cut off my contact with clients, removed me from email and document systems, and emailed all U.S. personnel saying that a forum participant had made “anti-Black comments” and was suspended pending an investigation. The firm also released a statement to the legal website Above the Law bemoaning the devastating impact my views had on participants in the forum—most of whom were lawyers participating in a call convened expressly for the purpose of discussing a controversial legal and political topic. Someone leaked my name to the press.

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Another Damning IIPTDXTTNMIAFB: President Biden Intentionally Violates The Constitution, Hoping He Can Get Away With It

IIPTDXTTNMIAFB are the Ethics Alarms initials for “Imagine if President Trump did X that the news media is accepting from Biden.” The phenomenon has been a theme of the Biden Presidency Ethics Train Wreck so far: The Washington Post isn’t keeping an archive of Biden’s lies like they did for President Trump (and most of what they archived weren’t lies anyway), and Biden has arguably engaged in far more substantive and deliberate untruths in less than two years than Trump did in four. It was a recent Biden lie of breathtaking audacity that reminded me to write about this issue: over the weekend just passed, Biden told an interviewer regarding his student loan debt bailout: “It’s passed. I got it passed by a vote or two.”

No, this was an Executive Order. It wasn’t a bill, it wasn’t voted on by Congress, and it didn’t “pass”—that’s exactly why it is unconstitutional. The scary possibility is that Biden actually thinks it did pass, but I refuse to accept “He’s senile, and doesn’t know what the hell is going on” as a defense for such blatant falsehoods.

Prof. Turley, who is becoming increasingly outraged at the Democratic Party’s disregard and disrespect for the Constitution, blasted away at Biden’s deliberate defiance of the law of the land in a recent post. Noting that Biden falsely (or ignorantly) boasted that the courts “are on his side” regarding the illegal EO despite the fact that the initial law suits blocking it were rejected on procedural and not substantive legal grounds (amazingly, Biden went to law school), Turley fumed

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Most Unethical Non-Criminal Cabinet Member In History?

Well, I don’t know. Quite a few Cabinet members have been convicted of crimes in office, and the Biden Cabinet has other bad apples, notably Attorney General Merrick Garland. Still, it’s hard to imagine any federal department head more incompetent or guilty of dereliction of duty than Homeland Security Secretary Alejandro Mayorkas. Or more of a weasel. To be fair, he is the first Cuban-born Homeland Security Secretary, which makes him “historic” and yet another diversity feather in the current Democratic regime’s cap. And after all, that’s what’s really important, right?

I wish I were kidding.

Mayorkas, you no doubt recall, says that our Southern border is “secure,” apparently using the archaic definition of “secure” that meant “as porous as cheesecloth” in Chaucerian English. He also attempted to install an Orwellian “Disinformation Governance Board, until even the Democratic Party’s captive news media objected, which always signals that the Left’s totalitarian aspirations are getting ahead of themselves. But he really secured his place in the U.S. Cabinet Members Chamber of Horrors, it has now been revealed, by deliberately condemning border agents of whipping illegal immigrants along the Texas-Mexico border when he knew the allegations were false.

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Prof. Turley’s Mutual Defense Proposal To Battle Ideological State Government Boycotts

Ethics Alarms wrote about the efforts by some “blue” states, notably California, to unethically bully other states into bending to their partisan will in opposition to their own voters in this post from last month, condemning the practice. That essay involved California’s “black list” preventing state travel to others states that in California’s consistently warped assessment, “discriminates” against LGBTQ Americans—you know, like by not allowing biological men to instantly become female collegiate swimmers just by saying they are.

This is not the first coercive effort of its kind, nor will it be the last. Major League Baseball was convinced to move its All-Star Game in 2021 from Atlanta because a reasonable Georgia voting integrity law was falsely labeled as “voter suppression.” California was at it again last week, as Gov. Newsome called upon Hollywood production companies to stop filming in states such as Georgia or Oklahoma with strict anti-abortion laws. In other states, legislation is developing  to block any state contracts with businesses in states with anti-LGBTQ legislation or pro-gun ownership laws, or that significantly limit abortion.

The July EA post concluded,

California’s attack on pluralism, democracy and federalism as well as its unethical efforts to try to influence governing decisions of other states is far, far worse that any imagined “discrimination” the Golden State claims to be reacting to. California has no respect for other states; it refuses to acknowledge that everyone doesn’t agree with California’s frequently warped vales and priorities and that there is nothing wrong with that; and it is deliberately acting as an agent of discord and division in the nation at a time when such conduct by a state, an official, or even a celebrity is particularly irresponsible.

California’s boycott list expresses exactly the same un-American spirit as bars, restaurants and other establishments that refuse service based on political views (Ethics Alarms has discussed that revolting trend many times)….

How can California’s toxic conduct be stopped? …This may be one of those rare exceptions where “tit for tat” becomes ethical as a last resort. The other states should consider taking retaliatory measures against California, and execute their own boycotts.

Now Jonathan Turley, the rapidly red-pilling Constitutional Law scholar from George Washington Law School in D.C., has proposed a formula to do exactly that. He writes in part,

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Ethics Quiz: The Secret Service Defies Orders!

As soon as I saw the headline to Prof. Turley’s latest post on his blog, “Res Ipsa Loquitur” I knew we had an ethics quiz: “Presidential Protection or Abduction: Why Secret Service Wrong for all the Right Reasons on Jan. 6.”

Turley’s article was prompted by one aspect of the Jan. 6 Commission testimony of Cassidy Hutchinson that President Trump ordered his official SUV to take him to the U.S. Capitol to be on hand with his supporters as they rallied (it turned out to be a “mostly peaceful” rally) against what Trump had told them was the stolen 2020 election. According to the witness, that she was told that T his Secret Service security team refused, causing the President to become furious.

Turley’s take, in brief:

…the Secret Service is trained to take immediate action to protect a president. On the other hand, it cannot effectively control the presidency by controlling a president like a modern Praetorian Guard. In the end, if this account is true, the security team was likely wrong in refusing the order of the President to be taken to Capitol Hill….Trump intended to do exactly what he promised and ordered the Secret Service to take him to the Capitol. But Tony Ornato, White House deputy chief of staff for operations, and Bobby Engel, who headed Trump’s security detail, reportedly refused.

…If true, the security team’s motivation certainly was commendable. It probably prevented Jan. 6 from getting much, much worse…what was the authority of the security team to refuse a direct order from a sitting president to go to Congress?

…The Secret Service has always assumed discretion in seizing a president to protect him from immediate harm [but there was no immediate harm threatened]…Trump reportedly decided he wanted to lead the protests to the Capitol and didn’t care about the security uncertainties — and he actually had a right to do so. Presidents can elect to put themselves in harm’s way… The Secret Service has no authority to put a president into effective custody against his will… In Trump’s case, he reportedly said he did not want to go back to the White House but was taken there anyway.

…This act of disobedience may have saved the country from an even greater crisis…

In the end, the security team was correct on the merits but probably wrong on the law. This was not an unlawful order, and a president must be able to control his own travel. In other words, the agents were wrong for all the right reasons.

Your Ethics Alarms Ethics Quiz of the Day is: Continue reading

Ethics Observations On The Dobbs SCOTUS Opinion Draft Leak And Reactions To It

Ethics Alarms posted briefly on the stunning leak of what appears to be a draft of a majority opinion striking down Roe v. Wade and the related Casey decision. [The link to the draft is in that article.] The position here is that any analysis based on the draft itself is premature and irresponsible, since the document is 1) a draft 2) not even necessarily the latest draft, and 3) the opinion as well as the support for it on the Court could change materially before the actual opinion is released.

The only ethics issue immediately clear is that regarding the leak itself, and, by extension, the leaker. Leaks always constitute a unethical breaches of trust; only in the rare cases where they reveal actual criminal activity can they be justified. For a lawyer to leak any information related to a professional obligation or representation is grounds for disbarment, and permanent infamy within the profession. This leak cannot be defended, and pundits, politicians or activists who praise the leaker reveal their own ethics bankruptcy. Keep a watch out for the leak apologists. Then relegate them to your “Untrustworthy” file.

Now the focus shifts to the reactions to the draft, and it is fair to say they constitute a freak-out. Prime among them is the hypocritical and hysterical joint statement by Sen. Schumer and Speaker Pelosi. Imagine: these are leaders of the party that has accused Donald Trump of undermining core American institutions.

The statement is breathtakingly dishonest. None of the members of the Court ever stated that they would not vote to overrule Roe. They said it was the law of the land, which is true, and stated their support for the principle of stare decisus. That did not preclude their voting to reverse Roe later based on a case that hadn’t been briefed or argued yet. I have read enough of the draft to know that Justice Alito clearly explains that stare decisus has always had exceptions (but I knew that) where a wrongfully decided Constitutional case had to be reversed, writing.

“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right….On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”

It should be very easy for Republicans and anyone else to explain the demise of Roe to the public. It was, as Alito says, a bad decision from the beginning, and it was time for the rights of the unborn to be considered, and not just the imaginary right of mothers to have their children snuffed out.

I’m going to spend most of my time devoted to this episode reading the draft, but here are links to various news reports and commentary: ABC News, The Daily Beast, HuffPost, CNN, New York Times, CBS News, Reuters, Washington Examiner, Associated Press, Fox News, NPR, Townhall, Slate, The Guardian, CNSNews, Al Jazeera, Outside the Beltway, Washington Post, De Civitate, Insider, Bloomberg, NewsOne, USA Today, A Lawyer Writes, emptywheel, pjmedia.com, The Nation, Breitbart, Los Angeles Times, The Daily Signal, Vox, Washington Times, The Comity Channel, Deadline, KLAS, The Daily Caller, Men Yell at Me, PennLive, The Hill, The Moderate Voice, littlegreenfootballs.com, NBC New York, Ninja Smith & Friends, WCMH-TV, HotAir, Variety, Deseret News, BuzzFeed News, NBC News, RedState, Mississippi Free Press, Mediaite, Things Worth Thinking About, thot pudding, homeculture, National Review, Big League Politics, WCTX-TV, Twitchy, Talking Points Memo, SCOTUSblog, CNBC, Jill Filipovic, Lawyers, Guns & Money, The Daily Wire, Maxwell’s Newsletter, A Propensity …, Gem State, Louder With Crowder, PharmaHeretic’s Newsletter, First We Think, Vanity Fair, New York Post, Law & Crime, Raw Story, The 19th, The Texas Tribune, Dana Loesch’s Chapter …, Power Line, The Racket News, New York Magazine, Fortune, Hennessy’s View, Trash Chair Thoughts, VICE, UPI, The Gateway Pundit, GC News, Instapundit, Watch Night News, Rolling Stone, Sacramento Bee, The Even Place, Let’s Get Politigal, WPRI-TV, Daily Insurrection, Mother Jones, Super-Probably Relevant …, Mercury News, The Right News, The Western Journal, TheBlaze, Althouse, Unfogged, Ace of Spades HQ, Teresa L’s Newsletter, Boing Boing, CBS Denver, IJR and Progress Report

Further observations:

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Turley On The Democrats’ Open Advocacy For Totalitarian Censorship

That sound Jeff Goldbloom and Sam Neill hear at the end of that clip is a newly freed Tyrannosaurus Rex, which I would much prefer having in my back yard than have what Democrats want to inflict on the nation.

I was all set to vote for Hillary Clinton, disgusting oozing metaphorical warts and all, a few days before Election Day 2016 when some new revelations sunk in, and I concluded that her party was an ideological outlaw, bent on destroying the basic foundations of our nation to ensure their power while using that power to corrupt the culture further. Boy do I hate being right about that—but I was.

The most chilling T-Rex roar yet may be the revelation during a House Appropriations Subcommittee hearing this week by Department of Homeland Security Secretary Mayorkashas. He revealed that his department is setting up a new board designed to counter what it deems to be “misinformation and disinformation” “Our Undersecretary for Policy, Rob Silvers is co-chair with our Principal Deputy General Counsel, Jennifer Gaskell, in leading a just recently constituted misinformation disinformation governance board….the goal is to bring the resources of the department together to address this threat.” New director Nina Jankowicz’s focus will reportedly be on “irregular migration and Russia.” That’s supposedly the “threat.”

Biden’s minions are so stupid, and so contemptuous of the public! True, many of them are as illiterate and badly educated as Democrats want and need them to be, but Mayorkashas might as well have announced that he was setting up a Ministry of Truth. This is why the news media have been almost completely silent on this (except for Fox News). They realize it sounds ominous. Right now what we know is ominous is only that Biden’s lackeys are so casual about throwing around the idea of the State determining what is “misinformation” and acting on the determination. They also didn’t think people would notice that the new “misinformation and disinformation” czar, Jankowicz, pushed the Biden false narrative that “50 national security officials, and 5 former CIA heads” were certain that the Hunter Biden laptop story was “a Russian influence op.”

It’s hard to be terrified of would-be totalitarians who are this incompetent, but what progressives these days lack in brains they make up for in arrogance and ruthlessness.

I’m not going to weigh in on Jankowicz’s ministry until I know what it really will be doing, but Prof. Turley, in his most recent article for USA Today (its there because none of the real newspapers like his focus on the Left’s ethics rot) does a superb job of blowing the whistle on Democrat-driven State censorship efforts that are exactly what they appear to be. Read it all, but here’s an excerpt…

Sen. Elizabeth Warren (D., Mass.) has declared Musk’s pledge to restore free speech values on social media as threatening Democracy itself. She has promised that “there are going to be rules” to block such changes. She is not alone. Former President Obama has declared “regulation has to be part of the answer” to disinformation. For her part, Hillary Clinton is looking to Europe to fill the vacuum and called upon her European counterparts to pass a massive censorship law to “bolster global democracy before it’s too late.”

For years, the First Amendment distinctions have been the focus of liberals who discovered a way to circumvent constitutional bans on censorship by using companies like Twitter and Facebook. Now, that successful strategy could be curtailed as shareholders join figures like Musk in objecting to corporations and media acting like a surrogate state media.

Faced with that prospect, Democrats are falling back to their final line of defense – and finally being honest about their past use of corporate surrogates. They are now calling for outright state censorship…

As is often the case, former Secretary of State Hillary Clinton stripped away any niceties or nuance. Clinton called for the European Union to pass the Digital Services Act (DSA), a measure widely denounced by free speech advocates as a massive censorship measure. Clinton warned that governments need to act now because “for too long, tech platforms have amplified disinformation and extremism with no accountability. The EU is poised to do something about it.”

Clinton’s call for censoring disinformation was breathtakingly hypocritical…her call for censorship came just weeks after special counsel John Durham offered more details about the accusation that her campaign manufactured a false Russian collusion theory. One of Clinton’s former lawyers is under indictment for the effort. Clinton personally tweeted out the disinformation that is the subject of the federal prosecution. And the Federal Election Commission recently fined her campaign for hiding the funding of the Steele dossier. Given that history, it would be easy to dismiss Clinton’s calls as almost comically self-serving. However, the 27-nation EU just did what she demanded. It gave preliminary approval to the act, which would subject companies to censorship standards at the risk of punitive financial or even criminal measures.

If implemented, it might not matter if Musk seeks to restore free speech values at Twitter. Figures like Clinton are now going to the EU to effectively force companies to continue to censor users.

Faced with liability across Europe, the companies could be forced to base their policies on the lowest common denominator for free speech…

Take it, Burnsie… Continue reading

Ethics Quote Of The Month: D.C. Circuit Court of Appeals Senior Judge Laurence Silberman

“The latest events at Yale Law School in which students attempted to shout down speakers participating in a panel discussion on free speech prompts me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified for potential clerkships.”

—Judge Silberman in a letter to his fellow judges, in reference to the disruption of a March 10 panel at Yale Law School that was intended as a debate over civil liberties  hosted by the Yale Federalist Society. About a hundred students attempted to prevent the panel and Federalist Society members in attendance from speaking.

Well, you know: Yale. Equally disturbing, perhaps, was that Ellen Cosgrove, the law school’s associate dean, attended the panel, was present the entire time, and did nothing to restrain the protesters nor remind them of their ethical duties.

The school has a policy that specifically condemns such speech-chilling conduct, but more than 10 days after the event, no consequences appear to be forthcoming for the privileged and arrogant thugs who are going to be entrusted with the task of protecting future attacks on Constitutional liberties.

In an editorial endorsing the judge’s suggestion, the Wall Street Journal wrote in part,

Some readers may think these students should be forgiven the excesses of youth. But these are adults, not college sophomores. They are law students who will soon be responsible for protecting the rule of law. The right to free speech is a bedrock principle of the U.S. Constitution. If these students are so blinkered by ideology that they can’t tolerate a debate over civil liberties on campus, the future of the American legal system is in jeopardy.

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A Rittenhouse Verdict Inventory Of Ethics Heroes, Dunces, Villains And Fools, Part I: Not Many Heroes

We should condition ourselves to cherish those public events that lure so many into definitively exposing their character, values and acumen for all to see. The Jacob Blake shooting, the subsequent demonstration and rioting, and the Kyle Rittenhouse trial, all intertwined, constituted such opportunities.

There are very few organizations, publications and individuals who will leave the stage in this annoying act in The Great Stupid drama deserving the designation of Ethics Hero. Rittenhouse certainly doesn’t, and thus the misguided pundits, politicians and others calling him that are dolts. He might be called brave, but bravery without good judgment, skill and experience too often leads to disaster, as it did in this tragedy.

Among the easily identified heroes are, first by several laps, the jury. I thought it was possible that, like the Chauvin jury, the twelve citizens might yield to the unethical public pressure being placed on them and refuse to see the reasonable doubt that made a conviction of Rittenhouse unjust as a matter of law, once the non-felony charges were dismissed. They didn’t yield, and delivered the fair and correct verdict despite irresponsible statements by elected officials who should know better, a less than sterling performance by Rittenhouse’s defense, credible threats of rioting in their community if they refused to follow the Black Lives Matter/Antifa script, and legitimate concerns about their own safety. Continue reading