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.

A Smoking Flip-Flop: Here Is Why Larry Tribe Cannot Be Regarded As An Objective Legal Authority Any More

…well, other than the fact that his recent tweets indicate that the 77-year-old  prof is no longer playing with a full deck…*

I had a back-and-forth with a smart non-lawyer who is suffering from Trump Derangement, and who cited the opinions of Professor Tribe to counter Alan Dershowitz’s critique of the Mueller Report. He didn’t like my assertion that Tribe has proven himself to be a partisan hack of late, willing to espouse whatever public opinion the Left and “the resistance” will find useful.

Ed Whelan, the President of the Ethics and Public Policy Center, found this example of a cynical Tribe flip-flop, worthy of the gymnasts above, that shows what I mean:

 Back in early March 2016, a few weeks after Justice Scalia’s death created a vacancy on the Supreme Court, Harvard law professor Laurence Tribe was perhaps the most prominent of some 350 law professors to sign a letter asserting that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Declaring that “[t]he Senate’s obligation in this circumstance is clear,” the letter invoked the Appointments Clause of the Constitution.

But, as I and others (including liberal law professors Noah Feldman and Vik Amar) pointed out at the time, the position that Tribe took had no support in the text of the Constitution and contradicted perennial Senate practice on nominations. The Appointments Clause states only that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various executive-branch and judicial-branch officers. In other words, it restricts the president’s power of appointment by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But it says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Tribe’s position in March 2016 further surprised me because it contradicted Tribe’s own earlier (correct) recognition, in his 1985 book God Save This Honorable Court, that the Senate may block a Supreme Court nomination “by simply refusing to act upon it.”

I’m pleased to discover that Tribe now agrees that the Senate does not have a constitutional duty to take any action on a Supreme Court nominee. Continue reading

How Do We Know The Democrats Can’t Find Any Ethical Reason Not To Confirm Judge Gorsuch? Because They Searched And Searched, And The Best They Could Come Up With Was THIS [UPDATED]

Pathetic. Desperate.

Typical.

“And it’s a HAIL MARY PASS!!!!!!!”

Today headlines screamed—do mark the journalists and news organizations, for they exemplify Prof. Glenn Reynold’s jibe, “Democratic operatives with  bylines”—that Supreme Court nominee Neil Gorsuch had committed plagiarism in four passages of his 2006 book “The Future of Assisted Suicide and Euthanasia,” which was based on his 2004 Oxford dissertation, before he became a judge.

That’s a stretch, and more than that, making this a major new story now indicates bias.

In the most egregious of the passages cited, Gorsuch included a description of the famous “Infant Doe” case that tracks closely with the description in a 1984 law-review article by Abigail Lawlis Kuzma. Both versions primarily quote from the court opinion: Kuzma’s article tracks equally closely to the original opinion, a 1982 Indiana court ruling that was later sealed, a  pediatrics textbook, “Rudolph’s Pediatrics,” and a 1983 article in the Bloomington Sunday Herald. Gorsuch cited all of these, but did not cite Kuzma’s article.

He should have. That’s a citation error, but probably not plagiarism. Several the sentences in the book and the article are identical or close to it, and Gorsuch should have used quotation marks. However none of the sentences involved anything but factual  and technical descriptions. For example,the article states that “Esophageal atresia with tracheoesophageal fistula indicates that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus,” and Gorsuch wrote, “Esophageal atresia with tracheoesophageal fistula means that the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus.” 

Now, if I were writing about esophageal atresia, about which I know nothing, in the course of an analysis of a larger issue, I would probably re-phrase that passage, perhaps writing, “When the esophageal passage from the mouth to the stomach ends in a pouch, with an abnormal connection between the trachea and the esophagus, this is the condition called esophageal atresia with tracheoesophageal fistula.” I haven’t added anything original, though. There are no new thoughts or content. My re-phrasing would just dodge the accusation of plagiarism. When I wrote my thesis, which involved reviewing multiple biographies of every U.S. President, it was not uncommon for me to find paragraphs in the earliest materials that were worked over and re-phrased again and again, with no quotes but citations.

The National Review, a conservative publication, so its position will be discounted as biased and partisan, tracked down Kuzma, who waved off the plagiarism charges:

“These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the “Baby/Infant Doe” case that occurred in 1982. Given that these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language.”

Weeell, that’s laying it on a bit thick. Gorsuch certainly could have done a more academically acceptable job of re-stating the substance of what she wrote; it’s not THAT “awkward and difficult.”

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

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

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