Justice Sonya Sotomayor

The Six Conservative Judges Had To Know That This Decision Would Guarantee Cries of “Systemic Racism!” But They Had The Integrity To Rule Correctly Anyway [Updated]

/ Jack Marshall / 5 Comments

Good for them. If only more Americans had similar courage….but having a guaranteed lifetime position definitely helps.

The Supreme Court last week silently rejected an appeal by a death row inmate in Texas arguing that his conviction was unjust because a juror had admitted  to racial bias. Kristopher Love (above) is black, and his lawyer had been forced to accept  a juror whose answer to a potential juror questionnaire query, “Do you believe that some races and/or ethnic groups tend to be more violent than others?” was “Yes.” Asked about that answer, the white juror said, “Statistics show more violent crimes are committed by certain races. I believe in statistics.”

The prospective juror in question, who is white, said yes. Pressed by defense lawyers, he said he based his views on “news reports and criminology classes” rather than his “personal feelings toward one race or another,” and that he did not “think because of somebody’s race they’re more likely to commit a crime than somebody of a different race.” He insisted that he did not feel  animosity or suspicions toward Love “because he’s an African American.”

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Evening Ethics Illumination, 1/9/22: “Mister We Could Use A Man Like Thomas Paine Again…”

/ Jack Marshall / 16 Comments

On this date in 1776, writer Thomas Paine published his pamphlet “Common Sense,” making his arguments in favor of American independence from England, thereby uniting a scattering of dissatisfaction into a movement. Only a few publications in our history have had such a profound effect on public opinion; another was “Uncle Tom’s Cabin.” Paine’s most ringing assertion may have been this one:

“Europe, and not England, is the parent country of America.  This new world hath been the asylum for the persecuted lovers of civil and religious liberty from every part of Europe.  Hither they have fled, not from the tender embraces of the mother, but from the cruelty of the monster; and it is so far true of England, that the same tyranny which drove the first emigrants from home, pursues their descendants still.”

Common sense today is in short supply. A sharp, clear explication and reaffirmation of core American values without the tarnish of partisan politics would be a godsend. But among a public in which a minority could even identify who Thomas Paine was, who would understand it?

1. I wonder if it’s even necessary to finish the post on the hypocrisy of Democratic propaganda about a threat to democracy when this kind of thing keeps happening…GovernorJay Inslee of Washington state called on lawmakers to pass legislation making it a gross misdemeanor for some to “spread lies”about election results. Naturally, he called this suppression of opinion and free speech necessary to protect democracy. Inslee spoke against what he called “a continuing coup” by former President Donald Trump. Wait, don’t we need a law criminalizing false claims of “coups”?

Part of the Democratic strategy to keep power is to use the criminal system to muzzle opinions and positions it doesn’t like. Robert Kennedy Jr. wants to punish “climate change deniers.” Many progressives want to punish vaccine skeptics (a group that includes Robert Kennedy Jr.!), and Democratic allies in social media and Big Tech have been increasingly brazen about banning conservatives, replacing the “more speech” remedy the Bill of Rights set out for dubious opinions with “no speech.”

Would it be fair to conclude that Inslee is an ignoramus? Not only have state laws making it a crime for a candidate for office to lie been declared unconstitutional (because they are,) the Supreme Court case U.S. v. Alvarez,  struck down the Stolen Valor Act, protecting a man who falsely claimed that he had received the Medal of Honor, declared that lying speech was still protected speech. Then there’s the little problem of deciding what is a lie and what is just dumb opinion, like, say, suggesting that a state could ban lying about elections.

If Inslee isn’t ignorant about his nation’s Constitution, then he is grandstanding, equating opinions with crimes to rile up the under-educated and the nascent totalitarians who his party has been courting for so long.

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Abortion Wars: It’s The New York Times vs. The New York Times!

/ Jack Marshall / 3 Comments

fetal development

Stockholm Syndrome liberal David Brooks, once the alleged conservative pundit in the Times far-left array, was in one of his “pox on both your houses” moods as he condemned what he claimed were equally unethical (my word, not his) arguments coming from the pro-and anti-abortion camps. “Many conservatives focus on the fetus to the exclusion of all else, ” he wrote. “A lot of the progressive commentary, on the other hand, won’t recognize the fetus at all.” False equivalency, David (and you know it). Since the fetus is the party that’s killed in an abortion, many conservatives and anti-abortion activists take the completely defensible and classic Kantian position that “deference to women who become pregnant in terrible circumstances” doesn’t and can’t justify taking a human life. On the other side of the divide, however, refusing to acknowledge the existence of a life at all is to deliberately rig the debate. And it isn’t “a lot” of the progressive commentary that tries to do this; it’s virtually all of it.

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Is The George Floyd Freakout Finally Waning?

/ Jack Marshall / 6 Comments

Oh, probably not, but there are some hopeful signs.

After the death by ambiguous causes of an African American petty hood resisting arrest at the hands, well, the knee, of a habitually brutal cop who should have been kicked off the force long before, absent any evidence whatsoever that the death was intentional or that it was motivated by race, police officers across the nation have been vilified, fired, prosecuted and generally abused virtually every time an African-American, and sometimes even a white citizen, died or was wounded in a police-involved shooting. This insanity, hysteria, freakout, deliberate exploitation, what ever you choose to call it, resulted in law enforcement around the nation being weakened, black communities being made more vulnerable to crime, a mass exodus of police officers, and an unprecedented spike in murders nation-wide. There were other horrible effects too, like the sudden acceptance of anti-white racism and discrimination as “restorative justice,” and the ascent of Kamala Harris to the office of Vice-President, but this is just an introduction.

Last week, however, two decisions in police-involved deaths showed that sanity might be creeping back.

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Morning Ethics Catch-Up, 10/7/2021: Idiots, Crooks, Crazies…And Judges

/ Jack Marshall / 17 Comments

Ketchup

I have at least 57 posts languishing…

1 Now this is “shouting ‘Fire!’ in a crowed theater!” Christopher Perez, 40, is heading to prison for falsely telling his social media followers that in 2020 he had paid someone infected with the Wuhan virus to lick food products at multiple grocery stores in Texas. His motive was to “scare people away from visiting the stores,” the Justice Department said in a news release.

The FBI launched an investigation that ultimately determined the claims were a hoax; Perez did not pay anyone, and nobody licked any groceries at his behest. A jury found him guilty of violating a federal law that criminalizes false information and hoaxes related to biological weapons. He was sentenced this week to 15 months in prison and was ordered to pay a $1,000 fine. His defense lawyers argue that the sentence is too harsh. Perez shook and trembled and wept in court, shouting, “I am not a terrorist!”

No, you’re an idiot, but you behaved like a terrorist, and under the law, that makes you a terrorist. The sentence is completely appropriate.

2. And while we are on the topic of criminals…We might be turning the ethical corner on looted antiquities from other lands. Nancy Weiner, the owner of a prominent Manhattan noted for its expertise in ancient Asian artifacts, pleaded guilty to charges of conspiracy and possession of stolen property in connection with the trafficking of looted treasures from India and Southeast Asia. She sold items to major museums in Australia and Singapore, and others were auctioned off by Christie’s and Sotheby’s. The items ranged in value from $100,000 to $1.5 million, and they were stolen. But Weiner had created fake documents stating that they had all been purchased from private collections. Her rationalization: it was standard practice. “Everybody Does It.” “For decades I conducted business in a market where buying and selling antiquities with vague or even no provenance was the norm,” she said during her appearance in Manhattan Supreme Court. “Obfuscation and silence were accepted responses to questions concerning the source from which an object had been obtained. In short, it was a conspiracy of the willing.” Right. That doesn’t mean you had to join in, but we understand: $$$$$$.

The Times quotes Clinton Howell, a New York-based antiques dealer and president of the Art and Antique Dealers League of America, as stating that the tactics used by Wiener and others in past years “are not pardonable,” but that “the dealer of today is not the dealer of 40 years ago — there’s a very different attitude now.” We shall see. Most professions with unethical cultures just devise new ways to accomplish the same ends.

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Law Vs. Fallacy: The Jurisprudence Of Justice Sotomayor

/ Jack Marshall / 14 Comments

us-supreme-court-justice-sonia-sotomayor

I haven’t been moved to do the research, but I would not be surprised if Barack Obama is owed the prize for the worst nomination for the U.S. Supreme Court ever to be confirmed by the Senate. That would be Sonia Sotomayor, the self-described “wise Latina” who was picked using the same criteria that led to Joe Biden choosing Kamala Harris as his VP: checking the right boxes. Obama was seeking a Hispanic judge (another first!) and a woman, but managed to choose a judge with weak credentials whose selection insulted better judges, female judges and Hispanic judges who were more qualified than her, and there were a lot of them. Since her confirmation, Sotomayor has introduced touchy-feely “compassionate” arguments exactly where they should never show their mushy heads: in Supreme Court oral arguments and opinions. Some of her opinions read as if they were composed by anyone with a law degree, though her law clerks are expert at stuffing them with the requisite number of case cites for appearances sake.

The latest example of Soromayor’s sentimental hackery was her dissent in the case of U.S. v. Dustin John Higgs, in which the Court, by a 6-3 vote (guess the three!) turned down the writ of certiorari of a man convicted of kidnapping and murdering three women, and sentenced to death. Justice Sotomayor began,

After seventeen years without a single federal execution,the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

Such an approach is a logical fallacy called “appeal to emotion.” That’s not law, that’s sentiment, assuming one is moved to tears by the idea of multiple convicted murderers finally being executed after years of expensive appeals and stalls. Sotomayor seems to think the fact that the “Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades” and that it was 17 years before the Trump administration did what should have been done all along has more than trivia value. So what? The U.S. has a death penalty, and finally has decided to follow through on it. Good.

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Morning Ethics Warm-Up, 6/25/2019: The Greatest Morning Warm-Up Ever Blogged!

/ Jack Marshall / 17 Comments

The movie “The Greatest Story Ever Told” was far from the “Greatest Movie Ever Made,” as the Duke’s casting as a Roman soldier demonstrated vividly.

OK, not really, but it better be good after yesterday’s potpourri never made it off the launch pad due to a series of unfortunate events. I’m using “The Greatest Legal Ethics Seminar Ever Taught!” as a title for an upcoming program I’m writing now, so the rhetoric is on my mind. My teaching partner complained that the title really puts the pressure on us to be outstanding. And that’s the point…

1. Harvard’s new President punts. Of course. The Harvard alumni magazine this month was notably light on criticism of the Ronald Sullivan fiasco, with only two critical letters on the topic, one of which made the suggestion that it might be a “conflict of interest” for someone who is defending a #MeToo villain to also serve as a residential faculty member (what was previously called a “House Master,” but that triggered some delicate students who felt it evoked slave-holders. No really. I’m serious. I don’t make this stuff up. Organizations capitulate to these complaints now, like Major League Baseball changing the name of the “Disabled List” because disabled rights activists complained). It is assuredly NOT a conflict of interest, though, by any definition but an erroneous one.

Deeper in the magazine, we learn that new President of Harvard, Lawrence Bacow, was asked during a faculty meeting about his views on the episode. His response was essentially a Harvard version of Ralph Kramden’s immortal “huminhuminahumina” when “The Honyemooners” hero had no explanation for some fiasco of his own engineering. Bacow said he would respect “the locus of authority,” meaning College Dean Rakesh Khuratna, who fired Sullivan after joining in student protests over the law professor and lawyer doing exactly what lawyers are supposed to do.

So now we know that, not for the first time, Harvard is being led by a weenie. What should he have said?  How about “I am firing Dean Khuratna, and offering Prof. Sullivan his position back. Any Winthrop House students who feel  “unsafe” are welcome to transfer to Yale”?

Most news media gave inadequate coverage to this story, and none, in my view, sufficiently condemned the university’s actions or the un-American values they represent. At least the New York Times is keeping the episode before its readers by publishing an op-ed by Sullivan titled “Why Harvard Was Wrong to Make Me Step Down.”

2. Insuring the life of a son in peril. Is this unethical somehow? It honestly never occurred to me. When I had to give a speech in Lagos, Nigeria, one of the most dangerous cites on Earth, my wife tried to take out a policy on my life with her as the beneficiary. I thought it was a good and prudent idea. But in Phillip Galane’s “Social Q’s” advice column, a son writes that he is still angry, decades later, that his late father did this , writing in part, Continue reading →

The SCOTUS Ruling In Trump v. Hawaii [UPDATED]

/ Jack Marshall / 30 Comments

The Supreme Court properly and ethically  killed the burgeoning liberal judicial theory that different Presidents have different restrictions on how they can exercise established Presidential powers. The majority in in the just announced decision in Trump v. Hawaii conclusively struck down a Hawaii judge’s ruling that Trump’s hostile comments about Muslims on the campaign trail rendered his travel restrictions unconstitutional, while a similar measure ordered by a nice President for the right intuited reasons would be presumably acceptable. This seemingly partisan ruling required substituting mind-reading for the President’s stated reasons for the Executive Order, and would have established a terrible precedent in a number of areas.

Sadly, this was another 5-4 ruling where the Court seemed to divide along ideological lines. However, since it seems clear that the five conservatives would have ruled the same way no matter which party’s President had issued the order, while the liberal bloc was indulging “the resistance” with a “Trump is special” approach, only one side of the political divide appears to have left integrity and and objectivity in their spare robes. Many, many commentators around the web have noted that this should have been a 9-0 decision, and that the political bias of the Hawaii decision was flagrant from the start. I agree. The President’s authority in this area is clear and unambiguous.

Writing for the majority, Chief Justice John Roberts wrote that the government “has set forth a sufficient national security justification” for its action. “We express no view on the soundness of the policy,” Roberts added.

More, from the holding: Continue reading →

Four Supreme Court Decisions: Abortion, Guns, Affirmative Action, Corruption…And Ethics. Part 4: Voisine v. United States

/ Jack Marshall / 25 Comments

"Aw, come on, that was a love tap! Now put some ice on that while I go out and buy a Glock...."

“Aw, come on, that was a love tap! Now put some ice on that while I go out and buy a Glock….”

Be honest, now: you thought I’d never finish this series, did you? (Part 1 was posted June 28.)

In Voisine v. United States, a 6-2 U.S. Supreme Court holding issued on June 27 approved extending a federal statute banning firearms possession by anyone convicted of a “misdemeanor crime of domestic violence” to include individuals who have “misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct.”

Justice Elena Kagan, writing for the majority, said that “the federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the ‘use…of physical force’ against a domestic relation. That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm.”

The opinion isn’t remarkable, nor is it a significant attack on gun rights. The case is really about language, as so many Supreme Court cases are. From the opinion:

“Congress’s definition of a “misdemeanor crime of violence” contains no exclusion for convictions based on reckless behavior. A person who assaults another recklessly “use[s]” force, no less than one who carries out that same action knowingly or intentionally. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.”

The real question, from an ethical standpoint, is whether Congress can and should remove a citizen’s Second Amendment right based on a misdemeanor conviction for domestic abuse. Is that fair? Sure it is. It is already settled law that it is Constitutional to prevent convicted felons from owning  guns, even if it was a non-violent felony. From an ethical public policy standpoint, why would it be overly restrictive to ban gun ownership from those who engage in a violent misdemeanor?

Writing in dissent, Justice Clarence Thomas, joined by Justice Sonia Sotomayor (of all people), rejected the majority’s “overly broad conception of a use of force.” In the view of the two dissenters, “the majority blurs the distinction between recklessness and intentional wrongdoing” and thereby does a grave injustice to criminal defendants. Continue reading →

Res Ipsa Loquitur Ethics Quote Of The Day: Law Professor/Blogger/Irony Master Ann Althouse

/ Jack Marshall / 8 Comments

free-bingo-design

The NYT article tells us that Sotomayor’s remarks were published in the Berkeley La Raza Law Journal and that she also said:

“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.”…

… Judge Sotomayor questioned whether achieving impartiality “is possible in all, or even, in most, cases.” She added, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” She also approvingly quoted several law professors who said that “to judge is an exercise of power” and that “there is no objective stance but only a series of perspectives. Personal experiences affect the facts that judges choose to see,” she said.

So has Donald Trump refrained from doing a disservice both to the law and society?

—-Ann Althouse, making a slam-dunk point about the hypocrisy of the uproar over Donald Trump’s “racist”suggestion that a Hispanic-American judge might be biased against him.

Althouse and I are right, and almost everyone else is wrong. It’s obvious, and beyond rebuttal on the facts. Althouse has joined me as one who also deplores everything about Donald Trump but who is determined to call out intellectual dishonesty and unfairness in the attacks against him. She also posted this… Continue reading →