Merrick Garland

Signature Significance: The Democratic Party’s Irresponsible And Petulant Gorsuch Tantrum [Updated]

/ Jack Marshall / 20 Comments

Signature significance, in the context of ethics, is when a single example of conduct or a single episode is sufficient to make a definitive judgment about the ethical values of an individual or an organization. It is something so striking and blatant that the usually valid statistical argument that one data point is meaningless doesn’t hold true. Ethics Alarms refers to signature significance frequently.

The Democratic Party’s behavior regarding the confirmation of Judge Gorsuch is signature significance. It won’t work. It will result in permanent harm to the Senate, harm that will initially most affect Democrats. It is hypocritical, irresponsible, and embarrassing, at least if the party is considering citizens who understand what is going on, admittedly a minority. It is unprofessional. It is dishonest. It is unpatriotic. The conduct is so obviously irresponsible that it is difficult to believe that Democratic leaders don’t realize it. Because it is all these things, the strategy is also very close to insane.

I just watched Senator Grassley’s address to the Judiciary Committee, ticking off l the reasons why the inflammatory Democratic rhetoric regarding Judge Gorsuch ranged from untrue to self-contradictory to ludicrous. He wasn’t exaggerating; it wasn’t a partisan speech.  Grassley reminded the committee that Gorsuch had been unanimously confirmed when he was nominated to the 10th Circuit. The Senator correctly explained why the recent mantra that Gorsuch wasn’t “mainstream” was counter-factual, since he has voted with the majority on that court over 90% of the time.

Grassley dismissed as offensive and judicially ignorant (my words, not his; Chuck was appropriately mild in his word choices) the argument that Gorsuch lacked compassion and wouldn’t rule “for the little guy.” Competent and ethical judges—unlike, say, Justice Sotomayor—don’t change their decisions according to which litigant is “big,” “little,” rich, poor, black or white. Their job, duty and role is to clarify what the law is. It is only part of the current progressive delusions, most recently shown in the rulings against the Trump travel halt from terrorist-teeming Muslim nations, that judges should base their analysis on their personal and political biases, when those biases are the “right” ones.

Senator Grassley then moved to the complaint that Gorsuch “refused to answer questions.” “What this means is that the judge wouldn’t say in advance how he would rule on cases that hadn’t come before him yet,” the Senator said. Of course he is exactly right. No judicial nominee has been willing to answer such question since the Democrats politicized the confirmation process forever by voting down Reagan appointee Robert Bork, despite the judge being as qualified and brilliant a jurist as anyone nominated to sit on the Court. No judge should have answered such questions before that, either. Cases are decided on the law and the facts. A justice who has made up his or her mind before even reading the briefs or hearing oral arguments is not judging fairly or competently.

Finally, Grassley pointed out that no Supreme Court nominee has ever faced a filibuster or the threat of one. For Gorsuch to be filibustered by Democrats, despite being assessed by almost every legal expert and commentator as unusually distinguished and qualified (including the left-leaning American Bar Association, which has found conservative judges less than qualified in the past because they were…conservative), is indefensible on the merits. Continue reading →

Supreme Court Vacancy Ethics: A Competent Choice, An Unethical Announcement, And An Irresponsible Reaction

/ Jack Marshall / 106 Comments

gorsuch

You know, if every day is going to set off multiple political ethics controversies, I’m not going to have time to write about lobster hats.

Last night, President Trump selected Colorado federal appeals court judge Neil Gorsuch as his Supreme Court nominee.

A. The Choice

Except for those who literally are determined to freak out and condemn anything President Trump does, this was a competent, responsible choice. He would be one of the best of the available choices for any Republican President, more qualified than Obama’s snubbed selection, Merrick Garland, to fill the same vacancy, and Garland was certainly qualified. It’s ridiculous that Gorsuch is one more Harvard grad on a Court that is exclusively Harvard and Yale, but that aside, he adds some diversity of outlook by being from the middle of the country rather than the coasts. He writes clearly, unlike, say, Justice Kennedy, and is not a pure political ideologue, like Ginsberg or Alito.

Before the Democrats’ rejection of Robert Bork shattered the tradition of allowing every President the privilege of having his SCOTUS nominations approved absent real questions about their competence or honesty, a nomination like this one would have garnered bipartisan praise. Trump made a responsible, competent, choice. Really. He did.

B. The Announcement Continue reading →

The New York Times, And The Consequences Of Forfeiting Integrity

/ Jack Marshall / 20 Comments
It was between Janus and the Four Season's song. "Two Faces Have I..."

It was between Janus and the Lou Christie song “Two Faces Have I…”

It would be extremely beneficial for the culture and enlightened civic discourse if there were a trustworthy, reliably objective observer with integrity and intelligence to provide fair, forceful pronouncements on the political controversies of the day. Such an observer would have to be seen as free of partisan and ideological bias, or at least show signs of actively trying to counter their effects. This, of course, is the idealized concept of what competent and ethical journalism is supposed to provide, and to the extent that any journalism organization was deemed capable of providing it, the New York Times was it.

Yesterday, the Times editors published an editorial called “The Stolen Supreme Court Seat” that was so partisan in tone and inflammatory, not to mention ridiculous, in content that it could only be taken as a biased political screed. Worse than that for the long term, however, is that the piece decisively disqualifies the Times as an arbiter of complex national issues whose judgment can ever be trusted as genuine and persuasive.  Many will argue that the Times’ biases have been blatant and unrestrained for many years, and this is true. That New York Times editorial may not be the first smoking gun, but it is the smokiest yet.

Do recall that Ethics Alarms substantially agreed with the Times in its main point that the Republican Senate’s refusal to hold hearings and consider President Obama’s nomination of federal judge Merrick Garland to fill the Supreme Court seat vacated last year with the sudden death of Justice Scalia was unethical:

“For Senate Republicans, holding hearings on President Obama’s qualified and moderate nomination for the Supreme Court is both the ethical course and the politically smart course. It is also in the best interests of the nation. In fact, the Byzantine political maneuverings by the President and the Republican leadership, by turns petty and ingenious, have handed Republicans a political chess victory, if only they are smart enough, responsible enough, and patriotic enough to grab it. Naturally, they aren’t.”

Note: unethical, but not illegal or unconstitutional. By using the inflammatory term “stolen” implying legal wrong doing, the Times intentionally adopted the language of political hacker, and Democratic Party talking points. Strike One: You cannot be trusted as objective and non-partisan when you intentionally endorse partisan rhetoric: Continue reading →

Ethics Verdict: The Republicans Should Vote On (And Approve) Judge Merrick Garland

/ Jack Marshall / 30 Comments

Merrick Garland

For Senate Republicans, holding hearings on President Obama’s qualified and moderate nomination for the Supreme Court is both the ethical course and the politically smart course. It is also in the best interests of the nation.

In fact, the Byzantine political maneuverings by the President and the Republican leadership, by turns petty and ingenious, have handed Republicans a political chess victory, if only they are smart enough, responsible enough, and patriotic enough to grab it. Naturally, they aren’t.

It is infuriating, and all citizens should be infuriated.

A brief review of how we got to this point of looming GOP disgrace is in order:

  • Justice Scalia died, removing a towering conservative force from the Court. This meant that almost any replacement, and definitely one named by Obama, would make the Supreme Court more liberal than it has been in many years.
  • Seizing on the opportunity to make the election a referendum on the composition of the Court (which is was going to be anyway), Mich McConnell announced that no nominee named by Obama, an outgoing POTUS less than a year from leaving office, would be considered by the Senate.
  • Democrats and their allies in the punditry predictably pronounced this to be a breach of Senate duty. Embarrassingly, records surfaced of  Joe Biden asserting the same basic principle that McConnell was arguing for, when Bush was the President. Biden, I must duly note, is an idiot, but he’s still the current Vice President. Then again, all Biden has to do is say now, “I was wrong.” As he frequently is.
  • Though many predicted that Obama would name a transsexual, disabled black Jewish Latino judge with Socialist leanings to maximize the opportunity to politicize the process, he did the opposite. He named a qualified jurist.
  • The judge he named, Merrick Garland, is a white, veteran 63-year-old judge with a distinguished record, nothing flamboyant or controversial, who is as close to a non-ideological, non-partisan moderate as any Democratic President is likely to appoint from now until the stars turn cold.

Now, if Senate Republicans were interested in doing what is in the best interests of the nation—that is,  filling the Supreme Court vacancy as soon as possible, giving proper deference to a responsible and reasonable nomination by the President, avoiding a nasty and divisive partisan fight, and ensuring that the next Supreme Court Justice won’t be an intractable leftist firebrand determined to gut the Constitution or another “wise Latina” mediocrity who will pollute the record with touchy-feely ramblings—they would leap on this opportunity and unanimously confirm Garland, saying publicly that they reconsidered McConnell’s declaration in the interest of restoring the integrity of the nomination process and returning to the time before Democrats politicized the process beyond reason in the Bork hearings, giving the President his choice, regardless of philosophical bent, when the nominee is qualified, dignified, experienced and trustworthy. like Judge Garland Continue reading →