“the resistance”

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

/ Jack Marshall / 14 Comments

…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 →

Morning Ethics Warm-Up, 5/6/2019: Rosenstein, Barr, Green, And “Oklahoma!”

/ Jack Marshall / 56 Comments

Good morning!

Let’s make this an ethical week…

1 As we watch the desperate vilification of Attorney General Barr by Democrats…it is helpful to consider a recent speech by the now departed second in command at Justice, the ridiculously conflicted Rod Rosenstein. He said in part,

Rampant speculation here in D.C. is that Democrats are terrified that Barr’s promise of investigations of the Hillary Clinton inquiry and the process whereby the Trump campaign was surveilled will reveal serious misconduct in the Obama Administration.  This is, of course, mocked as a conspiracy theory by the people who just had their own conspiracy theory exploded. Here’s the usually reliable Kimberly Strassel in the Wall Street Journal (behind a paywall—sorry).

…Mr. Barr made real news in that Senate hearing, and while the press didn’t notice, Democrats did. The attorney general said he’d already assigned people at the Justice Department to assist his investigation of the origins of the Trump-Russia probe. He said his review would be far-reaching—that he was obtaining details from congressional investigations, from the ongoing probe by the department’s inspector general, Michael Horowitz, and even from Mr. Mueller’s work. Mr. Barr said the investigation wouldn’t focus only on the fall 2016 justifications for secret surveillance warrants against Trump team members but would go back months earlier.

He also said he’d focus on the infamous “dossier” concocted by opposition-research firm Fusion GPS and British former spy Christopher Steele, on which the FBI relied so heavily in its probe. Mr. Barr acknowledged his concern that the dossier itself could be Russian disinformation, a possibility he described as not “entirely speculative.” He also revealed that the department has “multiple criminal leak investigations under way” into the disclosure of classified details about the Trump-Russia investigation.

Do not underestimate how many powerful people in Washington have something to lose from Mr. Barr’s probe. Among them: Former and current leaders of the law-enforcement and intelligence communities. The Democratic Party pooh-bahs who paid a foreign national (Mr. Steele) to collect information from Russians and deliver it to the FBI. The government officials who misused their positions to target a presidential campaign. The leakers. The media. More than reputations are at risk. Revelations could lead to lawsuits, formal disciplinary actions, lost jobs, even criminal prosecution.

Quick! Let’s impeach Barr! Continue reading →

Morning Ethics Warm-Up, 5/3/2019: The “All They Had To Do Is Not Be Crazy, And They Couldn’t Even Do That” Edition [Introduction]

/ Jack Marshall / 26 Comments

http://www.youtube.com/watch?v=OB-vnc7zDhU

Good Morning!

See, I can say still say that because each new day brings promise, even when the previous day was profoundly depressing and ended for me when the Red Sox lost in the 9th on an error and a walk-off home run.

The theme today was unavoidable., and believe me, I try to avoid a imbalance that enables those who want to dismiss Ethics Alarms as a conservative blog, rather than as a neutral, objective blog that has been forced over the past three years to focus heavily on the unethical conduct of “the resistance,” the biased news media, and the Democratic Party. Today, however, the imbalance isn’t mine, but the news.

Today the April economic report shows that wages are up, and unemployment is down. CNN is, I’m sure with clenched teeth, reporting on its poll showing that approval of how President Trump is handling the economy is at 56%. (“Now Congressional Democrats will have to figure out how to destroy the economy” tweets one wag). Another CNN poll finds optimism about the economy the highest it has been in at least 18 years. I know, believe me: polls. Still, one of the most pervasive Big Lies wielded by the “resistance” and the news media is that things are just terrible in the United States. I read some version of this alternate universe in New York Times interviews, features, and book reviews almost every day. You heard it from Joe Biden in his fantasy based video announcing his candidacy. Scott Adams, Dilbert’s creator who is a self-styled “Trump whisperer,” nicely summed up how this Big Lie is going:

“In 2016, if everything the Democrats believed had been true, we would have a depression, nuclear war, prison camps, and an insane Russian puppet as our president. In 2019, if Dems are right about everything they believe, Trump might have almost impeded a witch hunt but didn’t.”

But wait! There’s more. Continue reading →

Depressing Adventures Among The Facebook Borg

/ Jack Marshall / 36 Comments

Correct me if I’m wrong, but wasn’t it supposed to be the Trump supporters who were mentally dysfunctional  morons?

Consistent with my pledge to  confront my Facebook friends and their cronies when they  post “resistance” Big Lies, Democratic talking points, fake news and “Orange Man Bad” insults that are no more than gratuitous hate, I confronted a theater acquaintance this afternoons when her response to a post about the border terrorists who were allegedly  planning to assassinate Obama and Hillary Clinton. Her offensive comment (I’ll be paraphrasing these), “So I don’t want to hear any more about how  some people said mean things to people  in red hats.”

Despicable, I told her. You’re trivializing thugs harassing and in some cases assaulting law-abiding citizens based on their political views. That’s seriously undemocratic behavior, and worse, it’s a fascist tactic endorsed by leaders of the Democratic Party. I could have said, but didn’t, that hers was a fair imitation of Rep. Omar’s infamous “somebody did something” minimizing of the Muslim attacks on 9/11, and a dumb use of Rationalization 22, the bottom of the barrel, “It’s not the worst thing.”

Her reply was incoherent. Do I deny that Supreme Court Justices and other progressives  have received death threats, and if I don’t think that’s worse than the red hat incidents she referred to, then I should just unfriend her. What? What do death threats to Supreme Court Justices (or anyone) have to do with screaming at old men in MAGA hats? This more #22ing, to a demented level.Then I get the “defriend me” crap. Translation: If you insist on challenging my unfounded, ignorant and unethical comments, I don’t want deal with  it. Well, I don’t unfriend people because I disagree with  them. Friends don’t let friends post stupid. Continue reading →

Ethics Quote Of The Week: Ann Althouse

/ Jack Marshall / 9 Comments

“There’s the Muellermania paradox — a highly emotional reaction to the way Trump seems to have been highly emotional. (Have you heard he said “I’m fucked” when he found out they’d appointed the special counsel?!!! That seems like a perfectly normal reaction to me but a lot of people are hyperventilating about how cahraaazzzeeee it is. Are they hyperventilaters mentally sound enough to be trusted?)”

—Bloggress and law prof Ann Althouse, commenting on the Mueller Report freakout.

I’m sitting here trying to get the Red Sox out of their slump, and Friday traffic here, as usual, has slowed to a trickle in the afternoon, and I tried to post a link on Facebook, encouraged by a commenter here who said  he had been successful, only to be, once again, told by Our Social Media Masters that I am unworthy, so I’m going to put up uncharacteristically brief posts as they occur to me.  The all-time record for posts here is seven. I should be able to beat that. I’ll read them.

The Red Sox are already losing 2-0.

Ann is essentially apolitical, but frequently annoyed, as I am, at the irresponsible, unfair and biased attacks on the President. Democrats are embarrassing themselves, pundits are embarrassing themselves,  “resistance” celebrities (like Rob Reiner–what made you this way, Rob?) and my Facebook friend bitter-enders are embarrassing themselves. Continue reading →

Saturday Ethics Warm-Up, 4/13/2019: I Throw Down The Gauntlet, Alexa Betrays Us, A Chinese Restaurant Isn’t Chinese Enough, And Thus Must Die [UPDATED]

/ Jack Marshall / 35 Comments

Good morning!

1. Basically, to hell with them. Yesterday I was ostentatiously snubbed by two old friends at an event. It hurt, and more than that, it pissed me off.  Since I have not been directly involved with either of them for over a year, it was pretty clear what their justification was: I refuse to join “the resistance,” and also regularly call out Facebook garbage that is simply the unthinking regurgitation of Trump Derangement talking points. I don’t engage in political debates at social events unless someone makes an objectively false or offensive statement in my presence. The conduct I was subjected to was a political statement, however, and fascist in style. Shunning and marginalizing non-conforming views is increasingly the Left’s favored tool of gaining power, because it works. It works because most people will go along to get along. The next step is to try to shun and marginalize  people  who associate with the target, in this case, me.  Well, shame on them, and bring it on, baby. That kind of peer pressure has never worked on me, or anyone in my family,  my entire life.

What I have noticed on Facebook, and on Ethics Alarms, of course, is that the Angry Left and the “resistance” are mostly made up of cowards.  I actually got push back yesterday on a summary of the Boston Globe story, and the dissent consisted of “Yeah, but Orange Man Bad!” and “We’ll have to agree to disagree.” NO! The first response is a deflection, not a rebuttal, and the second is pure cowardice. (Simple “I disagree” comments don’t make it through moderation here.) What those responses mean is “I don’t like the facts and analysis you are presenting, because they interfere with my preferred narrative, so I’m rejecting them while impugning you, though I in fact have no arguments whatsoever to challenge your assertions. The day before, when I posted about the discriminatory  audition notice, I was accused of making the story up.

“The resistance”  has reached the point where it refuses to argue, because it can’t win arguments on the merits. One of the  Facebook commenters yesterday of the “Orange Man Bad” persuasion mouthed one of my favorite canards, the “he [President Trump] violates norms” argument. “What norms?” I asked. See, I know my Presidential norms, and my democratic norms, and this argument, pushed by the dishonest history professor wing of “the resistance,” is demonstrably crap, and I’m someone who can demonstrate it. I also can point to vital norms at the core of our democracy that Democrats and “the resistance” have breached, with serious, perhaps permanent consequences. What norm has the President breached that comes within a thousand miles, for example, of Democrats and progressives encouraging harassment and violence against the other party and its supporters?

Yesterday tears it for me. I’m taking off the velvet gloves. These are uncivil people who are relying on my civility, and cowardly advocates whose duty, if they had any integrity at all, would be to accept  that they can’t argue their case persuasively and reluctantly conclude that it’s time to admit that their case stinks. From now on, I’m telling them so. Continue reading →

Afternoon Ethics Romp, 4/10/2019: A Swirl Of Emotions…

/ Jack Marshall / 9 Comments

Ah, I feel wefweshed!

Just took a post-seminar nap—one of the bennies of a hime business– counted philosophers jumping over a fence, and now I’m awake and ready to rumble…

1. Wow. The quality of posts on this morning’s Open Forum is off the charts. Now my self-esteem is crushed , since it’s obvious that I’m keep the group back with my mundane commentary. If you haven’t dropped in on the colloquy yet, I recommend it highly.

2. This is why we can’t  have nice things, and will have fewer and fewer of them as time goes on…Related to a thread in the Open Forum, about a controversy over the way artificial intelligence screens job applicants is this news from a week ago. Google announced that it was dissolving a newly established panel. called the Advanced Technology External Advisory Council (ATEAC). which was founded to guide “responsible development of AI” at the tech giant (colossus/ behemoth/monster). The group was to have eight members and meet four times over the course of 2019 to consider issues and recommendation regarding Google’s AI program. The idea was to have an intellectually and ideologically diverse group to avoid “group think” and narrow perspectives.

I know something about such enterprises. I once had the job of running independent scholarly research within the U.S. Chamber of Commerce on contentious policy matters. My methodology was to invite experts from all sides of the issue, the political divide, and spectrum of professions and occupations. The method worked. Oh, we had arguments, minority reports, everything you might expect, but the committee meeting were civil, stimulating and often surprising. This, of course, requires an open mind and mutual respect from all involved. Continue reading →

Harassment At Starbucks: If This Were An Isolated Episode, It Wouldn’t Be Worth An Ethics Post—But It’s Not. Now What?

/ Jack Marshall / 42 Comments

At a Palo Alto Starbucks this week, a man wearing a red Make America Great Again cap, minding his own business, was confronted by a furious Rebecca Parker Mankey,  an appointed member of Palo Alto’s North Ventura Coordinated Area Plan Working Group and co-chairs the Bayshore Progressive Democrats.

She began shouting that he was a”hater of brown people” and “Nazi scum,” and exhorted the other  Starbucks customers and employees to join her in shaming him, . Mankey later said she was “heartbroken” that other “white people”—like her target— didn’t join her assault.   “I called him more names and told him to call the police. Then I yelled and asked someone else at Starbucks to call the police. He wouldn’t call the police, so I called him a wimp. He got his stuff together to leave. I followed him to the register while he complained about me. Then chased him out of Starbucks yelling at him to get the fuck out of my town and never come back,” she wrote. One he was in the parking lot, she threatening  to post pictures of him on social media—which she did—along with her version of the incident. She asked the public for help finding him so she could make sure he was harassed, saying, “I want him to have nowhere to hide.” Continue reading →

Morning Ethics Warm-Up, 4/5/ 2019: An Intersex Revolutionary War Hero! An Unethical Feminist Trailblazer!

/ Jack Marshall / 23 Comments

Good Morning!

Well, it was nice while it lasted. Thanks to prurient interest in a minor “Naked Teacher Principal” post, traffic on Ethics Alarms this week resembled those heady days of 2016, before ultra-Trump polarization, liberal commenter cowardice and Facebook’s ban took over. Incidentally, despite many thousand of “clicks,” the post in question didn’t get a single comment from the first-time visitors, meaning that said clicks were meaningless and useless.

1. About “Ma” Fergusen. As promised yesterday in my note about “The Highwaymen”, here is the “Ma” Fergusen saga, which is an ethics feast, though not a tasty one. (Source: Texas Politics)

Miriam Amanda Wallace (“Ma”) Ferguson (1875-1961), was the first woman governor of Texas. She served as the first lady of Texas during the gubernatorial terms of her husband James Edward Ferguson,  who was impeached during his second administration for extensive corruption. When James  failed to get his name on the ballot in 1924, Miriam entered the race for the Texas governorship, promising that if elected she would essentially be guided by her husband and that Texas thus would gain “two governors for the price of one.” She defeated the Republican nominee, George C. Butte, and was inaugurated fifteen days after Wyoming’s Nellie Ross, Miriam Ferguson became the second woman governor in United States history. Thus “Ma” helped set the precedent for future examples of wives being elected (irresponsibly) to offices they were not qualified for as substitutes for their husbands. “Ma” wasn’t the feminist pioneer she has sometimes been represented as. She was the opposite–you know, like Hillary Clinton.

Ma Ferguson (the “Ma” comes from her initials) pardoned an average of 100 convicts a month, and there was considerable evidence that she and her puppeteer husband  were taking  bribes of land and cash payments. The Fergusons also appear to have leveraged highway commission  road contracts into  lucrative kickbacks. Though an attempt to impeach Ma failed, these controversies allowed Attorney General Daniel James Moody to defeat her for renomination in 1926 and win the governorship. She (that is,  puppetmaster Pa) was back in  office in 1932, as she won the governorship again on the wave of discontent over the Great Depression.

The portrayal of “Ma” as a strong, independent executive in “The Highwaymen” would have to be judged misleading.

2. Speaking of women, sort of...An intersex  hero and role model may have emerged through the dim fog of history. Scientific researchers at Georgia Southern University claim that after years of study, their examination of skeletal remains of Revolutionary War hero, General Casimir Pulaski, ‘the Father of the American Cavalry’ has revealed that he  was biologically female.

Imagine if these had been George Washington’s remains… Continue reading →

Tell Me The Truth, I Can Handle It: Am I Getting Paranoid?

/ Jack Marshall / 28 Comments

I’m sitting here, watching the Red Sox-Seattle game and trying to put all stressful matters out of sight and mind (not that Boston is making that easy, since my team has begun the season erratically, to be kind), and I read about how a the account for “Unplanned,” a new pro-life movie, was taken down by Twitter without explanation or notice on the every day it was beginning its first weekend. There was an outcry from conservative commentators, of course ( Dana Loesch: “If Twitter doesn’t discriminate against ideology, as they attested to during their hearing, then why seemingly do only conservative accounts continue to be suspended for no TOS violations? What did @UnplannedMovie do to warrant such an action? Where is the consistency? I say this because I have seen so many other accounts of different ideological persuasion that DO violate TOS (sending death threats, doxxing, etc) that are allowed to remain up and active even after reporting….”) and Twitter restored the account, citing a “mistake.”

This comes on a day where I am noting how the  mainstream media is refusing to acknowledge how blatantly  it has hyped, and cheered, and promoted half-baked theories, rumors and misrepresentations to beat into the viewing public’s mind that their President stole his office and is a traitor, a concept that never made any sense no matter how little one thinks of Trump (and I speak from personal experience) and that depends on near hypnotic suggestion-level repetition to be believed, and is in full-Jumbo mode (“Impeachment-hyping? What impeachment-hyping?”). I’ve defended Jake Tapper and have defended Jake Tapper, but no more: he is officially a typical, untrustworthy CNN hack.

“I’m not sure what you’re saying the media got wrong. The media reported the investigation was going on,” Tapper said while interviewing acting White House Chief of Staff Mick Mulvaney today. “Other than the people in the media on the left, not on this network, I don’t know anybody that got anything wrong. We didn’t say there was a conspiracy. We said Mueller was investigating a conspiracy.” Continue reading →