Morning Ethics Warm-Up, 3/18/2019: Paranoia, Pettiness, Pirro, Provoked Applicants, Piqued Students, Posturing And Progressives

Good Morning, Pacific Time Zone!

I’m heading to San Diego tomorrow to talk about “Five Looming Ethics Issues for Lawyers  and  Their  Corporate Clients”  to a group of over 600 lawyers. THEY don’t think my analyses of ethics issues violate community standards…okay. I admit it, I’m getting paranoid. Despite a lot of, I humbly believe, useful, timely and well-presented content, the weekend traffic was terrible, and comments were sparse, if excellent. This year, so far, is lagging behind last year, which seriously trailed the year before. What’s going on here? Has Google secretly joined Facebook in its efforts to keep the posts here from reaching an audience? Of could it be that I just suck? Maybe Donald Trump really has killed all belief in ethics…that’s the ticket! Blame the President!

1. Pettiness and vindictiveness vanquished. Good. The Judicial Council of the 10th U.S. Court of Appeals  has affirmed its December decision to reject 83 ethics complaints against Justice Brett Kavanaugh, all filed by bitter partisans who are determined to hurt the newest Justice because the Democrats’ slimy and unethical ambush tactics failed, as they should have. In a 6-1 decision, the judicial council affirmed its earlier finding that the federal law governing misconduct complaints against federal judges does not apply to justices on the U.S. Supreme Court. Many of the complaints filed against Kavanaugh argued he had made false statements under oath during hearings on his nominations to the U.S. Court of Appeals for the D.C. Circuit in 2004 and 2006 and to the U.S. Supreme Court last year—you know, like having an innocent recollection of what “boof” meant in his completely irrelevant high school year book.  Other complaints accused Kavanaugh of making inappropriate partisan statements in his inappropriately partisan hearings, or claimed he treated members of the Senate Judiciary Committee with disrespect, or as I would put it, the disrespect they deserved for attempting to smear his good name and reputation through demagoguery and calls to reject the presumption of innocence.

Let me remind everyone that Ruth Bader Ginsberg, in her confirmation hearings, stated under oath that she had no pre-formed opinions that would affect her objectivity in abortion cases. Nobody filed any ethics complaints. Continue reading

Armistice Day Ethics Warm-Up, 11/11/18: Pettiness, Tit-For-Tat, And Fake All-Stars

Good Morning!

Why Nora Bayes? Let me tell you a story…

I learned about Nora Bayes (1880-1928) while mounting a production of a “lost” musical, George S. Kauffman’s Hollywood satire “Hollywood Pinafore,” which was essentially a parody of Gilbert & Sullivan’s classic, “H.M.S. Pinafore.” Nora was mentioned in a laugh line in the script, so the 1941 show assumed that the audience knew who she was. I had never heard of her, so I did some research. She was a fascinating character, and a huge vaudeville and Broadway singing and comedy star, household name huge. “Over There” was one of her biggest hits; another was “Shine on Harvest Moon,” which she wrote with her second husband (she ultimately had five), Jack Norwith. He also wrote “Take Me Out To The Ball Game,” another Bayes standard. According to one online biography, Bayes Bayes “provided some flamboyant, indeed extreme, examples of the broad social changes happening in the United States in the early twentieth century, namely the questioning of traditional roles for women as well as the challenges to male political and economic power that marked the women’s movement of the time.”

I almost wrote about her in April. As regular readers here know, I believe it is the our duty to honor the memories, accomplishments and cultural influence of past figures in American history, because the more we remember, the more we learn, and the wiser and more ethical we are. Somehow Nora Bayes, famous as she one was, had been in an unmarked grave for 90 years.  On April 21, a group of Nora Bayes enthusiasts placed a granite headstone over her plot. The New York Times told the strange tale here.

Now I think of Nora Bayes every time I hear “Over There,” “Shine on Harvest Moon,” and “Take Me Out To The Ball Game.” Maybe you will too.

1. Truth in labeling. Major League Baseball has sent a team to Japan to play a series of exhibition games against a Japanese All-Star team, reviving a long-time tradition that had been suspended for several years. As you may know, the U.S. was critical in introducing baseball to Japan, and sent several major stars there to help get the sport established. Playing in Japan is mostly a lark for the American players, but the games are taken very seriously by the Japanese. In the first two games, the MLB All-Stars have lost, greatly pleasing the locals.

I don’t begrudge the Japanese fans their David and Goliath fantasies, but calling the U.S. team “All-Stars” is misrepresentation. For example, one of the pitchers who got clobbered in the last game, a 9-6  contest that began with the Japanese team jumping out to a 9-0 lead, was a Red Sox pitcher named Brian Johnson. I like Johnson, a crafty swing-man who had some good moments last season, but he’s a lifetime 6-6 pitcher who was left off the Red Sox post-season roster, and will have to battle to stay in the majors next season. I know you can’t sell tickets if the U.S. team is called the “All the players we could talk into coming to Japan Team,” but that’s what it is.

2. Tit for Tat  may be funny, but it’s not ethical. Representative Dan Crenshaw, the veteran who was mocked last week on Saturday Night Live for his disfiguring war wound, appeared on the show last night to mock the appearance of his tormenter, Pete Davidson. Crenshaw was unusually poised for a pol on a comedy show, and the bit successfully got Davidson and SNL, which had been widely criticized for its nasty routine, off the hook. Clever. Successful. Funny. Still wrong, however. This represents an endorsement of Donald Trump ethics, as well as the endlessly repeated rationalization for the non-stop ad hominem attacks the President has inflicted on him daily by the news media and others. The President famously—infamously around here—has always said that if you attack him, he’ll attack you back harder. His haters argue, in turn, that their tactics are justified by his. This is how the culture got in the escalating spiral to Hell it is in. I don’t blame Crenshaw: if he hadn’t accepted the invitation to get funny revenge on Davidson, he would have looks like a petty jerk. Nonetheless, he has now officially become part of the problem, not just a victim of it.

3. Stop making me defend President Trump Dept.  You see, I am kicked around on Facebook for not just falling meekly into line and declaring that everything Donald Trump does is an outrage and proof that he should be impeached. I tell you, it’s tempting. The mass bullying campaign to herd everyone into the undemocratic effort to overthrow an elected President using relentless criticism and flagrant double standards has been effective in stifling others, and it also serves as a kind of mass cultural hypnosis. I don’t like defending Trump. He is doing serious damage to his office, as are his unhinged foes, who are apparently willing to destroy the nation, democracy, and the Constitution to “save” it from him. But I will not be intimidated out of pointing out the revolting pettiness, hypocrisy and unfairness of his critics. Two examples surfaced yesterday. Continue reading

Labor Day Ethics Leftovers, 9/4/18: Big Lies, Big Jerks, Big Mistakes [UPDATED]

 

Good morning!

1. So, so predictable. Yesterday was fun: I assumed that the post about the undeniable pettiness, incivility and hypocrisy at Senator McCain’s funeral service in D.C. would prompt multiple exclamations of “But…but…Trump deserves it!”, “He’s worse!” and “What about what Trump does?” I was not disappointed. Each one of these desperate efforts to avoid facing the issue discussed and admit reality is signature significance for having crippling flaws in one’s ethics analysis abilities, gaping holes in one’s basic understanding of right and wrong, and a victim of stupidity-inducing bias. Nothing in the post excused or referenced the President’s own conduct in any way.

2. Baseball ethics. No, it is not unethical for pitchers to carry crib sheets. During the top of the eighth inning in Saturday night’s Phillies game against the Cubs in Philadelphia, third base umpire Joe West noticed the Phillies  pitcher looking at a card he had pulled from his pocket, and confiscated it. The card contained scouting reports on how to pitch a Cubs batter. The advanced analytics baseball teams now use to devise how to position fielders and pitch to batters are too detailed for the typical player to commit to memory. Lots of them carry little cheat sheets, sometimes in their hats. Although lots of old school players and tradition-loving fans hate the development, it’s here, and there are no rules against it.

Never mind: Joe West, who is one of the more arrogant and autocratic umpires, felt that the piece of paper constituted a “foreign substance” under the rules, and thus surmised that it was prohibited by the provision designed to stop pitchers from making the ball do tricks by surreptitiously applying K-Y Jelly or slippery elm. Yup, ol’ Joe thought the pitcher, Austin Davis, was  going to use the card to doctor the baseball. Good thinking, Joe! MLB quickly set him straight the next day, announcing that West, as he often is, for he is an awful umpire,  was mistaken.

The fact that West couldn’t figure that out himself, and that he is the longest tenured MLB ump, tells you why we will have robo-umps calling strikes within five years or less.

3. Nah, there’s no mainstream media bias! Today’s nauseating example of mainstream media’s refusal to report and comment on the news objectively comes from the New York Times—Surprise!—which writes sympathetically about the Democratic Party’s dilemma as it tried to derail the Supreme Court nomination of Bret Kavanaugh. There’s no filibuster any more! Multiple Democrats tell the Times how unfair this is. Guess whose name is completely absent from the article? Why, former Senate majority leader Harry Reid, who resorted to the so-called nuclear option to pass Barack Obama’s judicial nominations over Republican opposition. “They are making a mockery of the process, and that is because the No. 1 goal …. is to stack the bench with ideologues, because they know they cannot achieve their goals through the elected branches,” said the Republican leadership at the…no, wait, that quote is from Senator Chuck Schumer of New York, the current Democratic leader. He doesn’t mention that his predecessor is the reason the system is “broken.” At least the Times, in one brief sentence , acknowledge that “Democrats” eliminated the filibuster for federal judges below SCOTUS level. They do not make it clear that this shattered a long-standing Senate tradition, and that it made the GOP follow-up of killing the device for Supreme Court nominations both politically feasible and inevitable.

The Times also does not remind readers that its editorial board applauded Reid’s move at the time. Continue reading

Now THIS Was Hypocrisy: John McCain’s National Cathedral Service

Ethics Alarms has spent a lot of time and space trying to clarifying the term hypocrisy, which like another term abused here by commenters, ad hominem attacks, is more often  misused than used properly. Hypocrisy is conduct that proves insincerity and  dishonesty (or, Hanlon Razor fans, stupidity), in which one’s conduct does not match one’s contemporaneously stated belief regarding what one’s conduct should be, under circumstances that suggest that the objective of the words was to deceive, by falsely claiming dedication to principles the speaker in fact does not possess or aspire to. Thanks to the orgy of hypocrisy that the Washington, D.C. funeral service for the late Senator John McCain this weekend deteriorated into and the equally hypocritical reporting on it, we now have a perfect example of hypocrisy for the ages.

Let’s start with the fact that a theme of the service was McCain’s alleged dedication to civility. The fact that the Senator openly planned his own funeral to settle scores and act on old grudges is the ultimate rebuttal of that claim. It was undeniably uncivil to dis-invite the President of the United States from what would otherwise be a display of unified and bi-partisan Washington community respect for a departed public servant. That was an insult, and intended as one. Insults are not civil. The retort to this is that the President was not civil to McCain, which is true. However, if the professional duty of civility is waived by another’s breach of it, then there is no such duty.

McCain’s own daughter launched the proceedings with her own uncivil rant, saying in part, “We gather here to mourn the passing of American greatness—the real thing, not cheap rhetoric from men who will never come near the sacrifice he gave so willingly, nor the opportunistic appropriation of those who lived lives of comfort and privilege while he suffered and served.” Later, she added, “The America of John McCain has no need to be made great again, because America was always great.”

In addition to being uncivil—I have never been to a funeral that consisted even in small part of veiled insults and attacks on someone else, and Marc Anthony aside, have always understood that using a funeral service for this purpose is boorish and unethical—the attacks on the President, like Meagan McCain’s, were cowardly. The man (and the office) being savaged wasn’t present, and the crowd was united in its hostility to the target. George Washington’s 110 Rules of Civility cover that kind of conduct neatly:

89. Speak not evil of the absent, for it is unjust.

Leading up to the ceremony, the news media were equally dishonest in describing McCain. Dana Milbank of the Washington Post declared that McCain  “never forgot that political opponents are not his enemies, and that there are things more important than winning elections.” Funny, it seems pretty clear that McCain regarded Donald Trump as his enemy, treated him as such, and made certain that his admirers would carry out his vendetta. The description also was historical revisionism, at least through the news media’s own assessments. After fawning over the “maverick” when he was challenging George W. Bush, journalists turned on McCain and discovered his dark side when he ran against a man the entire journalism establishment had decided to elect President. The Pew Research Center found that between the Republican National Convention’s close on September 4, 2008 and the final presidential debate on October 15, McCain’s media coverage was more negative than positive by a 4-to-1 ratio, and pundits like Milbank were writing statements like this one, from New York Times columnist Maureen Dowd, who said ,“Even some of McCain’s former aides are disturbed by the 73-year-old’s hostile, vindictive, sarcastic persona.”

When it was George W. Bush’s turn to speak—his family had enhanced its stock with McCain by barring the President from Barbara Bush’s funeral—one of his accolades was that McCain “detested the abuse of power”, though not, apparently, sufficiently to do the right and responsible thing and give up power when he was no longer well enough to discharge his duties. Is an octogenarian Senator with aggressive brain cancer still fit to serve in the U.S. Senate for almost a year as his condition deteriorates? To ask the question is to answer it, yet McCain insisted on keeping his power to the end, in part so he could continue undermining the President of the United States. Let’s say McCain “detested the abuse of power” by others.

That’s hypocrisy too. Continue reading

Morning Ethics Warm-Up, 8/30/18: Double Standards, Signature Significance, Facebook Tricks, And Pettiness From Beyond The Grave!

Gliddy glup gloopy!!

1. Tennis Ethics: Yes, I’d call this a double standard…When I saw the headline at AOL— “The US Open has been accused of sexism after a female tennis player was slapped with a code violation for changing her top in the middle of a match”—I assumed that this was another bare-breasts equality story. No, it was even stupider than that. At the U.S. Open at Flushing Meadows this week,  Alizé Cornet was playing Swedish star Johanna Larsson when Cornet realized she  had put her her top on backwards during a break.

So she quickly fixed the wardrobe malfunction on the court, briefly exposing her black sports bra. The Horror. The umpire slapped Cornet with a code violation, unsportsmanlike conduct. But male players frequently remove their shirts on the sidelines, and usually aren’t wearing any bra at all. Indeed, male player Novak Djokovic  removed his shirt on the same day Cornet received her warning. Women’s Tennis Association rules state that women are not allowed to change clothes while on the court, but there is no similar rule for men.

2. Signature significance for an unethical politician. (But it’s Andrew Cuomo, so we knew that anyway.) During the New York  gubernatorial candidates’ debate  between Governor Andrew Cuomo and actress-turned-politician Cynthia Nixon, there was this exchange,

Cuomo: Excuse me, can you stop interrupting? 

Nixon: Can you stop lying?

Cuomo: Yeah, as soon as you do!

The audience thought this was funny.

New Yorkers.

3. Today’s  alarming “Nah, [enter Social media of mega-tech company here]  doesn’t abuse its power 0r manipulate information for a political agenda! Why would anyone suggest such a thing?” note:

NPR, to its credit, published an investigative reporting piece debunking a popular anti-gun fake stat, one that David Hogg et al. have wielded repeatedly: the U.S. Education Department’s claim that in the 2015-2016 school year, “nearly 240 schools … reported at least 1 incident involving a school-related shooting.”  The NPR investigation findings:

“…NPR reached out to every one of those schools repeatedly over the course of three months and found that more than two-thirds of these reported incidents never happened. Child Trends, a nonpartisan nonprofit research organization, assisted NPR in analyzing data from the government’s Civil Rights Data Collection.

We were able to confirm just 11 reported incidents, either directly with schools or through media reports.

In 161 cases, schools or districts attested that no incident took place or couldn’t confirm one. In at least four cases, we found, something did happen, but it didn’t meet the government’s parameters for a shooting. About a quarter of schools didn’t respond to our inquiries.

“When we’re talking about such an important and rare event, [this] amount of data error could be very meaningful,” says Deborah Temkin, a researcher and program director at Child Trends.

Gee, ya think?

This statistic has been disputed before, but since the challenges came from conservative news media, the NRA or other Second Amendment supporters, the mainstream media kept using it, and I’m sure the Parkland kids will keep using it anyway, since facts seem to have little importance to them. National Public Radio, however, has been resolutely anti-gun for decades, and never saw a liberal cause it didn’t admire.

When a Facebook user shared the NPR article on Facebook, however, it was removed because, as Facebook informed him,  “it looks like spam and [it] doesn’t follow our Community Standards.” See?

Again: You cannot trust these companies or the people who run them. Continue reading

Morning Ethics Warm-Up, 8/28/2018: Short, But Disturbing…

Good Morning!

1. Am I a chicken? Today I am doing an early morning CLE seminar for prosecutors and government lawyers, and there are a lot of juicy issues that I am staying away from. Last year’s seminar on this topic with this audience bogged down almost immediately in political arguments, and later I received complaints, which I almost never do. Despite the fact that the ethics of government lawyers have never been more under a microscope than  now, today’sthree-hour course is going to almost (almost) completely avoid the controversies surrounding the Mueller investigation, Rosenstein, Strzok and the rest. I am going to mention Andrew McCabe’s use of GoFundMe, but only in the context of lawyers crossing ethics lines while using the web.

Is avoiding the political controversies wrong and cowardly when they are so relevant to the topic of government ethics? I’ve been thinking about this for months. In the end, I have decided that the distraction and static is more damaging to the mission—giving government lawyers a chance to tune up their ethics alarms—than the embargoed topics are essential. There is more to cover than I have time for anyway.

2. More on the baseball mind-control front. Back in 2015, then-Mets second-baseman Daniel Murphy said in an interview that he “did not agree with the lifestyle” of a gay former player. Now, two teams later, he is playing for the Chicago Cubs, and the news media has resuscitated the “scandal”—apparently not agreeing with someone else’s lifestyle when that lifestyle has been officially sanctified is a scandal now—and Murphy is being examined, prodded and watched. Are his anti-gay—apparently not “agreeing” with something is to be “anti-“ too—attitudes a burden on the team? Are they “harming” gay fans? Gays in general? It is clear that Murphy will never stop being a target of political correctness-besotted reporters until he publicly embraces his inner gayness, announces that he has forsworn his sincere religious beliefs (they are  behind the times), and publicly endorses every LGBT issue under the skies. Of course, gay baseball fans in Chicago will be happy with Murphy as long as he hits and helps the Cubs win games, which is all that should matter, and in fact is all that does.

The lesson of Murphy’s ordeal is, I suppose, that no celebrity or public figure should dare utter non-conforming opinions or views, unless they are willing to be hounded by the political correctness Furies to the grave.

I don’t believe this condition is compatible with freedom of thought and expression, but then, neither are the Furies. And those who would deny Murphy leave to “disagree” with whatever he choose to disagree with want freedom of thought and expression to be constrained, or as the Supreme Court put it, “chilled.”

3. Flag up, flag down. Apparently there are people who have nothing better to do than watch flag poles. In response to Senator McCain’s death, The White House lowered its U.S. flag to half-staff on Sunday, raised it back up and on Monday lowered it again after the death of Senator John McCain, in a break with the tradition following the passing of a national leader. Based on the reaction of my Facebook friends, this was far more outrageous than the Catholic Church facilitating child rape for the last 50 years or so. Finally, under pressure from the news media, veterans and members of Congress, President Trump  ordered flags to half-staff, and came out with a late, grudging tribute to McCain.

Yes, the President should have treated McCain like prior departed leaders of his stature and duration on the national scene.

Yes, his response was petty.

Yes, he is petty, and yes, apparently Trump being Trump will perpetually be news.

Yes, John McCain is dead, and his orders that the President of the United States isn’t welcome at his funeral still stand.

Yes, the news media’s attitude is that McCain’s pettiness was justified, because any anti-Trump attitudes are per se virtuous and just, and Trump’s pettiness is just more proof that he should be impeached.

Got it.

4. Lanny Lanny Lanny…In July, CNN published a story claiming that President Trump knew about the planned Trump Tower meeting with some Russians bearing gifts of dirt on Hillary Clinton, or so they had claimed delegation. According to their anonymous source, former Trump fixer and Olympics-level slimemeister Michael Cohen claims Trump was briefed on the meeting. It now appears that the only source for CNN’s story was Lanny Davis, Hillary Clinton’s and Bill’s fixer and Olympics-level slimemeister. Now Lanny is saying that he was somehow “misunderstood.” You see, his client testified under oath to Congress that Trump did not know, so Lanny’s leak to CNN implicated his own Client in a crime—one that he hasn’t pled guilty to yet. Now all of the media outlets, notably the Washington Post, that went into full impeachment heat over the CNN story are having to backtrack, just like Lanny. [Pointer: Liberty Girls]

Nah, Chuck Todd is right, there’s no news media anti-Trump bias!

Sarcasm aside, I find it impossible to believe that a majority of the public isn’t sick of this.

Comment Of The Day: “A Particularly Sad Ethics Dunce: Senator John McCain”

I am bumping Steve-O-in-NJ’s reaction to the depressing drama of Senator John McCain spending his last days in anger and bitterness up in the queue of  pending Comments of the Day, which is long right now. The reason is that his analysis fits neatly into a post I was about to write, but will summarize here as a preface.

The impulse to defend McCain’s recent conduct, notably disinviting President Trump from his funeral in advance, is one more in a long line of signature significance moments, definitively identifying late stage sufferers of anti Trump hysteria. (Trump Derangement Syndrome just isn’t an accurate diagnosis, because it suggests equivalence with the more unhinged critics of Presidents Clinton, Bush and Obama. There is no comparison. It is like comparing a bad cold to the bubonic plague.) The grotesque theater of a public figure choosing, rather than to end his life with grace, forgiveness and unifying good will, choosing to emulate the mad Ahab, screaming,

“To the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee!”

He has gone full-Ahab. You never go full Ahab. But because the equally mad haters of the elected President relish the thought of any insult, attack or indignity hurled Trump’s way, the can’t perceive the obvious. Defending McCain’s prospective snub is as clear a symptom of anti-Trump hysteria as a dog recoiling from water signals rabies.

My usual course is to make an ethics analysis and then check the opinions of analysts who I trust as generally fair and perceptive. Here was Ann Althouse’s take, in part:

It’s very strange — these statements coming from a dying man about what he wants at his funeral. I can’t remember ever hearing anyone talking about his own funeral with the assumption the President of the United States wants to attend and then taking a shot at the President saying don’t attend. I mean, how do you get to be the sort of person who, facing death, imagines everyone clamoring to attend your funeral and then telling some of them you don’t want them there? It’s similar to a Bridezilla, thinking everyone’s so interested in attending her wedding and then being dictatorial toward these people.

I don’t understand it…good Lord! What would possess you to think your funeral is going to be such a hot ticket people will be put out if they can’t attend and then letting it be known who you want on the outs?

I’d like to see more dignity and privacy around McCain as he plays his final scene. It’s his brain that is wrecking him. Shouldn’t his family enclose him and protect him?

Those who respect and care about McCain want him to stop. Those who hate Trump so much they are willing to see a war hero and former Presidential candidate embarrass himself to deliver one more divisive insult just regard him as a means to an end.Here is Steve-O-in-NJ’s Comment of the Day on the post, A Particularly Sad Ethics Dunce: Senator John McCain:

Continue reading