One Acquittal, Three Quotes, Four Reactions

Trump acquitted

Former President Trump was acquitted in the second impeachment trial stemming from the Democrats’ relentless effort to remove him from office after his shocking election in 2016. In both efforts, the two-thirds super-majority necessary to convict was always impossible, because unlike previous impeachment efforts, these involved no crimes, and were not bi-partisan . They were exercises in pure partisan warfare, despite the contrary intent of the Founders and the flood of exaggerated rhetoric from Trump’s enemies who had presumed he needed to be impeached from the moment he was elected.

The sudden vote yesterday came as a surprise, as the Senate had just voted to allow witnesses in the “trial,” and that would have extended the fiasco considerably. I assume, without knowing, that the Democratic leadership finally figured out that its plot wasn’t working, and that it was time for the party to cut its losses. They might still be considerable. I hope they are considerable. This has wounded the nation badly, and the party that has blathered on about accountability needs some, and hard.

Republican Senators Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Patrick Toomey of Pennsylvania voted guilty along with every Democrat. Interestingly, only two of the seven have a law degree, which may partially explain why they think a guilty verdict is defensible (it’s not.) The two lawyers, Romney and Murkowski, are barely Republicans and have been consistently anti-Trump. The fact that not a single Democrat had the integrity to buck the party’s mandate and oppose such a damaging precedent and such a dubious impeachment tells us all we need to know about the state of the current Democratic Party.

Now, three quotes following the vote:

Quote #1: From law professor and blogger Glenn Reynolds:

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Afternoon Ethics Aggravations, 11/10/2020: Mitch, Audra, Jeff And Joy

Annoyed

We just passed 300,000 comments on Ethics Alarms, and I’ll stack the consistent quality of them against any other blog on the web.

Thanks, everyone.

1.Regarding the gall, intellectual dishonesty and hypocrisy of Democrats and their supporters complaining about the President insisting on examining the returns and various irregularities before accepting the networks’ declaration that Biden won. I could not believe that Mitch McConnell and I would ever agree on anything, but we do this time. Yesterday he said in part on the floor of the Senate,

“Let’s not have any lectures, no lectures, about how the president should immediately, cheerfully accept preliminary election results from the same characters who just spent four years refusing to accept the validity of the last election and who insinuated that this one would be illegitimate too if they lost again — only if they lost,” the majority leader added. In fact, millions of Americans signed a petition urging the electors to vote for Hillary Clinton after Trump won in 2016. The people who push this hysteria could not have any more egg on their faces than they do right now,”

Bingo.

2. Please note: unethical law firms just pay out damages and fines. It’s only individual lawyers—usually the little guys, sole practitioners— who get disciplined. A state court judge in Houston dismissed a $750 million lawsuit against the huge international law firm Jones Day filed by Berkshire Hathaway. The lawsuit alleged the law firm participated in a “massive fraud” in connection with its work on an acquisition in Germany. The case can be refiled, and probably will. A law firm committing fraud means that its partners were responsible for the fraud, but unethical or even criminal conduct by large law firms seldom result in discipline for the law firm’s partners. The technical reason is that bar associations don’t oversee firms, just individual lawyers, so for big firms assisting their clients in frauds and other crimes, there is safety in numbers.

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Comment Of The Day: “Comment Of The Day: ‘On The Death Of Justice Ginsburg'”

This is a working day for me, as I have to revise perfectly appropriate legal ethics course materials because a low level bureaucrat at a bar association CLE department literally doesn’t understand what she is charged with approving, Nevertheless, I will be writing here about the developing Dead Ruth Bader Ginsburg Ethics Train Wreck, or whatever I end up calling it because passengers are boarding at a rapid rate.

Zoebrain’s Comment of the Day on the post, “Comment Of The Day: On The Death Of Justice Ginsburg”is an ideal way to get that discussion started, and Behold!— Here it is:

McConnell is as right to expedite a hasty appointment of any reasonably acceptable Trump nominee in September 2020 as he was as wrong to deny a hearing to any Obama nominee whatsoever in February 2016.

To do so would reveal blatant foetid dishonesty and utter hypocrisy, but I see no good argument against it, other than the limited time available for a thorough vetting, 45 days vs 270. Doing so less than 70 minutes after RBG’s death was tacky, but fitting for this regime, and arguably such haste is needed.

Former Alabama Chief Justice Roy Moore? Judicially qualified, would certainly shore up the softening Evangelical support, and, most crucially, would cause Democrats to have conniptions. But not on the current shortlist.

Ivanka Trump? Excellent test of personal loyalty, would embolden personal followers of Trump, would cause Democrats to lose their minds, but would do nothing to encourage Evangelicals, and again, not on the short list. Continue reading

Comment Of The Day: On The Death Of Justice Ginsburg

Another first: This Comment Of The Day, by Michael West, isn’t related to any post or previous comment. It was triggered by the death today of Justice Ruth Bader Ginsburg (1933-2020), which has immediate political implications with ethical strings attached.

Some past Ethics Alarms posts relevant to the moment are:

and here is Michael’s timely Comment of the Day:

2) Leaders of every party have soiled themselves jumping straight into political maneuvers and demands within hours of Ginsburg’s body even beginning to cool.

3) They have a really really stupid nuclear armageddon countdown timer. If I were an enterprising political commentator, I’d establish a “civil war countdown timer”. No, not like the last civil war (which wasn’t a civil war)…but a real civil war, which would make the last one look like a boy’s nerf-war sleepover. And if McConnell does what he implies he’s going to do in his statement that came out like an hour after the news broke…I’d set that countdown timer to 5 minutes. Since it’s been at about 15 minutes since the Democrats refused to accept the 2016 election and 10 minutes since the riots began this year. Continue reading

A Futile Call For Fairness And Integrity From Senator McConnell

I know this is a waste of time and words, but here goes nothin’…

Yesterday we got the news that Justice Ruth Bader Ginsberg, 86 and already being treated for enough maladies to kill a normal human being  half her age, has pancreatic cancer. Treatment is going well, we are told, and Ginsberg isn’t even cutting back on her schedule.

Nonetheless, the proverbial writing is on the wall. Sheer will only can accomplish so much. If I participated in “dead pools,” Justice Ginsberg would be at the top of my list, even ahead of soon to be 103-year-old Kirk Douglas. Though she is apparently determined to hang on to her SCOTUS seat if it means that she will finish her tenure in a box that signals “yes” and “no” like  poor Captain Pike in that “Star Trek” episode, I would be stunned if there isn’t a vacancy on the court in the near future. That will mean that President Trump will have an opportunity to appoint a conservative justice to replace the most liberal voice on the current court, a result that will spark panic from the Left and delirious joy from the Right. If this happens after January, 2020, it will also create an integrity test for Mitch McConnell.

That is, it should.

When Antonin Scalia died on February 16, 2016, President Obama appointed moderate liberal judge Merrick Garland to replace him. McConnell, however, the GOP Senate Majority Leader, announced that the Senate would not consider the nomination, debate it, or vote on it. He concocted a rule that when a Supreme Court vacancy occurs in the last year of a Presidential term, it should not be filled until after the November Presidential election. The supposed justification for this was that SenatorJ oe Biden had once made a similar suggestion. Basing any policy or rationale on what Joe Biden says is like using the spontaneous utterances of Tourettes sufferers as life guidance, but never mind: Mitch was gambling that a SCOTUS vacancy would bring more Republicans to the polls than Democrats, and that the Garland nomination would eventually be moot.

The gambit was legal but unethical, but then, that’s Mitch. It was also stupid: Garland was no Scalia, but he was far more moderate than some of Obama’s other options, and if Hillary Clinton had won, as looked like a sure thing in January, she was likely to nominate a far more extreme progressive judge. But in the manner that has hooked suckers and created gambling addicts for centuries, Mitch’s long-shot bet paid off. Trump won; Neil Gorsuch replaced Scalia, and Merrick Garland joined Samual Tilden in the “What If?” Hall of Fame.

If RBG leaves the Court or this vale of tears in 2020, however, Mitch should find himself hoisted by his own petard. By his own words, that new opening on the Court should not be filled by President Trump’s choice unless Trump  is re-elected in November; the public should have the opportunity to include the composition of the Supreme in their calculations regarding who to vote for. So declareth Mitchi n 2016, as progressives and Democrats screamed and ripped their garments,

Having created a principle and a precedent, Senator McConnell should stick to it. The problem wasn’t that his theory in 2016 was indefensible in theory–it is.  The problem just that it was disingenuous. Mitch wasn’t interested in fairness or democracy, just expedient politics. Thus it comes as no surprise that McConnell has told his party members that if there is a Supreme Court vacancy, he will move to confirm a conservative nominee so fast it will break the sound barrier.

He should not, however. Doing so may be good old fashioned hard-ball politics, but it will also be a lost opportunity to start repairing a broken legislative branch that McConnell played a major part in breaking. Such a cynical reversal of his own stated “principles” will also make the public less trusting than they already are of the motives, honesty and integrity, not just of Mitch, but of the their elected officials and government. Our democracy can’t take much more distrust and cyncism. Democracy breathes trust.

Who knows? Maybe Mitch will hit the jackpot a second time. Maybe the delay will backfire, with more outraged Democrats being attracted to the polls than activated conservatives. Nevertheless, Mitch McConnell has an ethical obligation to treat the next SCOTUS vacancy during the final year of a Presidential term exactly like he did the last one, in the name of integrity, fairness, process, consistency, trust, and the health of our Constitutional system.

Morning Ethics Warm-Up, 6/27/2018: Unhinged

Good Morning.

1. Nah, there’s no mainstream media bias…This is one of the times that I am sorry that the Trump Deranged on Ethics Alarms have temporarily withdrawn from the Comment section battles, as I would love to hear their self-indicting rationalizations.

Here was this morning’s New York Times, big black headline:

JUSTICES  BACK TRAVEL BAN, YIELDING TO TRUMP

Outrageous in every way. The Court did not “yield” to anyone or anything but the law as it stands and has stood for centuries. As Constitutional Law expert Eugene Volokh succinctly put it, “The federal government may pick and choose which foreigners to let into the country (at least setting aside foreigners who have are already been granted residence), even based on factors — political beliefs, religion, and likely race and sex — that would normally be unconstitutional.” He explains:

This used to be called the “plenary power” doctrine, referring to the principle that the government has essentially unlimited power when it comes to at least this aspect of immigration law, unlimited even by the Bill of Rights. It is not based on the constitutional text; textually, the First Amendment would apply to all exercise of Congressional authority, whether under the Commerce Clause or the District of Columbia Clause or the Necessary and Proper Clause under Congress’s power over immigration. But, right or wrong, it is based on longstanding American legal history; and the majority adheres to that history.

Historically, this has even be used to authorize Congress to discriminate based on race (query whether the Court would today condemn this as “irrational”; more on that below). It has long been seen as authorizing Congress to discriminate based on country of citizenship, without investigation into whether such discrimination might actually be motivated by ethnic hostility. And, most relevant to today’s decision, it was seen in Kleindienst v. Mandel (1972) as authorizing discrimination based on political ideology, which would otherwise be forbidden by the First Amendment….The Court rejected the First Amendment claim:

Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case (1889), and in Fong Yue Ting v. United States (1893), held broadly, as the Government describes it, that the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government ….” Since that time, the Court’s general reaffirmations of this principle have been legion. The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service (1967). “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan (1909)….

As a result, the Court held that, if decisions to exclude aliens could ever be set aside, this would be so only if there was no “facially legitimate and bona fide” reason to exclude the alien. In Mandel’s case, the dissent noted, those reasons — labeled by the government as Mandel’s “flagrant abuses” during his past visits to the U.S. — “appear merely to have been his speaking at more universities than his visa application indicated.” The dissent argued that “It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar.” But the Court didn’t investigate whether the government’s true motive might have been the Administration’s disapproval of Mandel’s political ideas, rather than the supposed violation of past visa conditions; the requirement of a “bona fide” reason did not appear to require an investigation into the government’s true motivations, but rather simply focused on whether the “facial[]” reasons seemed sufficient:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [the provision involved in Mandel], Congress has delegated conditional exercise of this power to the Executive.

We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The majority’s decision in Trump v. Hawaii basically applied this logic to another clause of the First Amendment — here, the Establishment Clause (which normally bars discrimination based on religious denomination, including the use of neutral rules in a discriminatorily motivated way) rather than the Free Speech Clause….

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My Last Ethics Post About Roy Moore

I hope.

Unless he loses, and then my post, in its entirety, will read, “Good!”

The Republican Party reversed its previously signaled course this week, and appeared to be supporting the Senate candidacy of Roy Moore. This has been greeted by Democrats, the leftward pundits and news media as the equivalent of the GOP endorsing Jeffrey Daumer. “This is the end of the Republican Party!” I have read, in various forms. meanwhile, the predictable feckless Senate Majority Leader Mitch McConnell also reversed himself. Once he said that Moore would not be seated if elected,  said he believes Moore’s accusers and called for the candidate to step aside. Now he’s saying it’s up to Alabama voters to decide. “The people of Alabama are going to decide a week from Tuesday who they want to send to the Senate,” McConnell said on CBS’s Face the Nation Sunday. “It’s really up to them. It’s been a pretty robust campaign with a lot of people weighing in. The president and I, of course, supported somebody different earlier in the process. But in the end, the voters of Alabama will make their choice.”

Observations:

  • The Republican Party had an obligation not to endorse (or run) Moore before a single accusation regarding his fondness for teenage girls surfaced. He was already unfit for office; it wold be unethical to support him if he had the personal life of Pat Boone.

If the party somehow decides that stalking shopping malls for dates and persuading mothers to pimp out 14 year olds was nothing to get upset about in a U.S. Senator, there would still be  the fact that Moore doesn’t believe in the rule of law, the Constitution, Equal Justice or the Bill of Rights, and that he’s an anti-gay bigot. These are more disqualifying than any sexual misconduct he engaged in 40 years ago. After all, I strongly suspect that 20-30, maybe more, U. S. Senators have engaged in past sexual misconduct that would make their continued presence in the Senate unpalatable. I don’t think any of them have acted or considered acting as Moore has, repeatedly violating the hierarchy of authority in the government, and arguing that that God has veto power over the Supreme Court. Mike Huckabee, at his worst, has said similar things, but he’s a talking head now; I can’t envision him actually defying a court order.

  • As I wrote back when the GOP had a chance to refuse to nominate Donald Trump, a political party is charged with maintaining the integrity of the government and our democracy, which means only offering for election candidates for office who are at least minimally qualified and trustworthy. That is a party’s duty: not just to win elections, but to win them with candidates of whom it can be reasonably and objectively said  will serve the nation with honor and competence. That can’t be said of Roy Moore, and it never could.

To a great extent, all the focus on his teen dates obscure the real problem with his candidacy. Since a majority of Alabama Republicans don’t believe Moore’s accusers, this has helped him. Continue reading

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

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

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

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