Tag Archives: U.S. Supreme Court

Unethical Quote Of The Week, Cross-Filed to “The Brett Kavanaugh Nomination Ethics Train Wreck,” “Nah, There’s No Mainstream Media Bias,” AND “Bias Makes You Stupid”: ABC Correspondent Terry Moran

“Overturning Roe vs. Wade by an all-male majority, two of whom have had credible accusations of sexual misconduct lodged against them, would not be a legitimate action.”

—–ABC correspondent Terry Moran, on an ABC news broadcast, as he discussed what would happen to the nation’s highest court if the Senate confirms Supreme Court nominee Brett Kavanaugh,

It doesn’t get much worse than this. The statement is irresponsible, unfair, ignorant, partisan, incompetent, inflammatory and untrue. It involves multiple distortions of law and fact. It is an opinion presented as fact by an individual lacking the credentials or authority to issue such an opinion. It also encourages defiance of lawful authority.

Moran is a journalist, trained as a journalist and as nothing but a journalist. His current role at ABC is as a foreign correspondent. He is no lawyer, and apparently has no idea what a conflict of interest is. For him to use his air time to make such a pronouncement, sure to be sucked up by the eager, empty brain cells of social media junkies everywhere, is an abuse of his position and influence. That is, however, what he and his colleagues increasingly call “journalism” in 2018. It isn’t journalism, not the ethical kind. It is propaganda, and worse.

For the sake of brevity, since these are major misrepresentations that could each be the subject of scholarly essays, allow me to just bullet point them:

  • More fake news, Future and Psychic News Division. Why is Moran talking about Roe v. Wade being overturned? There is no case before the Supreme Court that would do that. There is no pending case in the system that would lead to that. None of the sitting justices or Kavanaugh have argued that Roe should be overturned, and the conservative justices have all declared their fealty to the concept of stare decisus, in which established SCOTUS decisions are regarded as settled law except in extraordinary circumstances.

For a broadcast journalist to discuss a remote hypothetical—and it is remote by definition, since none of the conditions necessary for it to occur appear to exits—is brazen fear-mongering and misleading the public.

  • More fake news, Future and Psychic News Division, Part II.  Then Moran forsees what individual Justices will decide in this imaginary case that hasn’t been argued, or briefed. In this he reduces the Supreme Court, which analyzes difficult questions of law, to a group of agenda-driven knee-jerk hacks, which they are not.

Journalists like Moran are the agenda-driven knee-jerk hacks, and at least in his case, are unable to imagine anyone else treating important controversies objectively

  • Gender stereotyping. There is no justification for assuming that a male justice would automatically vote to overturn Roe, and the assumption is historically ignorant. After all, an all-male SCOTUS majority established Roe.

Moran also assumes that no woman on the Court would vote with the male members even if the particular facts and law related to the imaginary, hypothetical future case that may never exist required an honest, objective female Justice to do so. This is  simple-minded, biased thinking that reduces both genders to their lowest common denominators.

  • The misleading word, “credible.” “Credible” means “capable of being believed” by itself. I could state here that I am five foot three inches tall and once worked as Latin tutor to make extra money in school. Those are both credible claims: there’s nothing that makes them unbelievable. They are also untrue. Being credible is not the test for whether any statement of evidence should be believed, and in any dispute, such statements must be considered in the context of other evidence. Brett Kavanaugh’s denial is also credible, except to those who have a vested interest in disbelieving it.

In this nation, and in any just society, we do not make judgments about people based on “credible accusations.” The accusations must be corroborated and substantiated to some extent. Dr. Ford named witnesses, and none of them have confirmed her story. That does not make her accusation incredible, but no conclusions can be drawn from it either.

  • There’s no conflict of interest. I don’t know what tortured definition of conflict of interest Moran thinks he knows, but whatever it is, it doesn’t exist in law or ethics. I’m assuming that a conflict is what he thinks would undermine the legitimacy of his imaginary, future hypothetical SCOTUS decision. If mere gender created a conflict, then neither women nor men could consider abortion cases. Blacks couldn’t rule on civil rights cases. Motherhood, fatherhood, whether a judge had an abortion or chose not to have one, these at most create biases, not conflicts, which occur when a judge’s current tangible, real life, current interests will be affected by a decision he or she is obligated to make. Judges are pledged to ignore their biases, not to never have them. All human beings have biases; judges are professionally trained and obligated to do a better job than the rest of us recognizing them and overcoming them.

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Ethics Morning Sickness, 9/29/2018: The Ford-Kavanaugh Hearing Hangover

According to several sources, Republicans not only have the votes to confirm Brett Kananaugh,  a couple of Democrats may even join their ranks. If true, that’s amazing, and also the most encouraging piece of news I’ve heard since Aaron Judge went on the Disabled List.

I don’t have any special fondness for Brett Kavanaugh, and I have no stake in his confirmation. All I have ever cared about is having outstanding, smart, analytical judges on the Supreme Court. I was thrilled when President Obama nominated Elena Kagan, who fits that description; depressed when he appointed touchy-feely mediocrity Sotamayor, lowering the quality of judicial talent so he could check off a diversity box, but then, that’s Obama. Justices like Blackmun, Souter and Kennedy, all appointed to skirt controversy rather than to ensure a competent Court, do subtle, long-lasting damage to our laws. Aggressive, thoughtful, brilliant jurists like Scalia and Ginsberg keep the third branch of government strong. Kavanaugh is undeniably the kind of qualified, experienced judge who has always been routinely confirmed by the Senate regardless of the President nominating him or his party affiliation. What the Democrats and their allies among activist and the news media have done to Brett Kavanaugh is more than wrong; it is very dangerous, and threatens further the basic comity and respect without which no democracy can function. The treatment of Kavanaugh, which I have discussed in detail elsewhere—the demonizing, the fear-mongering, the character assassination, based purely on an unremarkable judicial philosophy—continues down a slippery slope, already greased by “the resistance,”  that ends in civil war.  The Democrats will only turn away from this disastrous path when they conclude that it won’t work, that the American public rejects “the ends justify the means” as an operating strategy. There are signs that the Democratic Senators televised conduct during the Kavanaugh hearings may be a tipping point. I hope so. I’ll believe it when I see it.

Nothing much has changed in my assessment since I wrote this post ten days ago. I still don’t believe or disbelieve Ford or Kavanaugh. There is no basis on which to believe either of them, but the accuser has the burden of proof, and as was true ten days ago, she can’t meet it and didn’t meet it. Nobody confirms her account. She cannot provide specifics, even as to where the alleged attack occurred, who held the party where it allegedly occurred, or an exact date, making investigation nearly impossible. Her parents, who are alive, have not confirmed her account; apparently she didn’t even tell them about the incident. Her testimony was convincing. So was Kavanaugh’s. Those who say “they believe” either party might as well have a “Bias has made me stupid” sign on top of their head. In yesterday’s New York Times, a full page ad listed thousands of names of men proclaiming “We believe Anita Hill. We also believe Charistine Blasey Ford.” All they are doing is virtue signaling for their pals, proclaiming their partisan affiliation (believing Ford is required to save abortion, and depending on which hysterical activist or pundit you listen to, female suffrage, gay marriage and the continued abolition of slavery), and or proving that they lack the power of critical thought.

I’ll have to sort through all of the logical fallacies used against Kavanaugh later: I’m sure a new rationalization for the list or twelve is in there. For example, I have been told and read that women believe Ford because they know other victims of sexual assault who never reported it. But that doesn’t justify believing Ford! It indicates that the fact that she waited all this time, until evidence was gone and memories faded, to suddenly make her accusation when it was most politically useful to her party doesn’t prove she isn’t telling the truth, but it doesn’t make it any more likely that she is, either. A commenter yesterday suggested that there should be more sympathy and accommodation for victims who are afraid to come forward soon after a sexual assault. “I would like to remind you that women often are not able to speak out against harassment until long after the fact because they are afraid and unable,” she wrote. I replied,

Then they lose their chance. There are a lot of things in life like that. If I’m reluctant to speak up and challenge a mob harassing a US Senator while he’s dining with my family, I can’t wait 20 years and do it then, can I? If you are afraid to report a community criminal when you have evidence against him because you’re afraid to snitch, it’s no mitigation to report the evidence after more people have been hurt because of your delay. How about women who don’t stop their boyfriends from sexually molesting their children because they are afraid? Is it acceptable that they wait until the Statute of Limitations has run, the damage has been done, and the kids are grown and molesting children themselves before they speak up?

You don’t have to remind me of the dilemma. I’m sorry, but I am really sick of this argument…It’s an excuse and a rationalization. It makes fairness and due process impossible, and it allows false accusers to manipulate others. Three decades? Holding a complaint until the exact moment when it can’t be defended against AND will do the most damage?

It’s explainable, perhaps, but it isn’t ethically excusable.

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From The Ethics Alarms “Democrats Must Be So Proud” Files: An Obvious Observation On Today’s Kavanaugh Hearing

It is disgraceful,  embarrassing, and dangerous, and only two or three steps away from Charles Sumner being physically attacked by Preston Brooks on the Senate floor.

It emerged during the proceedings that Senate Democrats planned to disrupt the orderly process of the hearings as a strategy. Nice. I guess that’s their replacement for the filibuster. I think I prefer the device used by Lilly Tomlin’s character in the Netflix series “Grace and Frankie”: when she can’t rebut an argument, she starts singing “She’ll Be Comin’ ‘Round the Mountain” as loud as she can, so nobody else can talk.

“The hearing began with protesters breaking in, and continued with serial efforts by Democratic Senators to postpone the hearing. To the credit of committed chair Chuck Grassley, he bulled on through. As he did so, the Democratic side degenerated into a contest regarding which putative candidate for the Democratic 2020 nomination could pander to the base more. Here is how the day began:

GRASSLEY: “Good morning. I welcome everyone to this confirmation hearing on the nomination of —“
HARRIS: “Mr. Chairman.”
GRASSLEY: “— Brett Kavanaugh –”
HARRIS: “Mr. Chairman.”
GRASSLEY: “— to serve as associate justice of the Supreme Court of the United States.”
HARRIS: “Mr. Chairman, I’d like to be recognized for a question before we proceed. Mr. Chairman, I’d like to be recognized to ask a question before we proceed. The committee received just last night less than 15 hours ago —“
HARRIS: “Mr. Chairman, regular order.”
HARRIS: “— 42.000 pages of documents that we have not had an opportunity to review or read or analyze.”
GRASSLEY: “You are out of order. I will proceed.”
HARRIS: “We cannot possibly move forward, Mr. Chairman. We have not been given the opportunity to have a meaningful hearing with Congress nominee–“[cross-talk]
GRASSLEY: “I extend a very warm welcome to Judge Kavanaugh, to his wife Ashley, their two daughters –[cross-talk]
UNKNOWN: “Mr. Chairman, I agree with my colleague, senator Harris. Mr. Chairman, we received 42.000 documents tat we haven’t been able to review —”
GRASSLEY: “— And everyone else joining us today.”
UNKNOWN: ” and we believe this hearing should be postponed —”
GRASSLEY: “I know this is an exciting day for all of you here and your you’re rightly proud —”
UNKNOWN: “Mr. Chairman, if we cannot be recognized I move to adjourn. Mr. Chairman, I move to adjourn.”
GRASSLEY: “— From Judge Kavanaugh —”
UNKNOWN: “Mr. Chairman, I move to adjourn. Mr. Chairman, we have been denied real access to the documents we need to advise —” (Audience cheering)
BLUMENTHAL: “Mr. Chairman, we have been denied the real access to the documents we need —[cross-talk] which turns this hearing into a charade and a mockery of our norms and, Mr. Chairman, I therefore move to adjourn this hearing.”
AUDIENCE: “This is a mockery. This is a travesty of justice. Cancel Brett Kavanaugh, adjourn the hearing. [ indecipherable].”
BLUMENTHAL: “Mr. Chairman, I ask for a roll call vote on my motion to adjourn.”
AUDIENCE MEMBER: “‘[indecipherable]'”
GRASSLEY: “Okay.”
BLUMENTHAL: “Mr. Chairman, I move to adjourn. I ask for a roll call vote.”
GRASSLEY: “We are not in executive session. We will continue as planned.”

A recurring theme was the disingenuous complaint that Democrats, who have received over 400,ooo pages of materials relating to Trump’s nomination to fill Justice Kennedy’s seat on the Court, as well as all of his judicial opinions which are what really matter, did not have time to read the most recently released batch of about 40, 000 pages. Everyone knows that what is in those documents doesn’t matter one bit, because the entire group of Democratic Senators have already made it clear that they are going to vote against Kavanaugh as a bloc. They are going to do it to express their outrage over Merrick Garland; they are going to do it to pander to the resistance narrative that Trump is an “illegitimate” President, they are going to do it because the party increasingly seeks to demonize conservatives, they are going to do it because they are afraid of their base. Oh, there are lots of reasons. All of the Democratic Senators, maybe most,  don’t seriously believe their party’s own scare-mongering that Kavanaugh will lead the Supreme Court to reverse Roe v. Wade, but there is the rapidly pro-abortion—not just pro-abortion rights but pro-abortion—feminist segment of the base to pander to as well.

Essentially, we are watching an entire political party embrace mob-style interference as an alternative to process, because they don’t like what the likely results of the established process will be. Of course this is dangerous to the nation and the Constitution. It is also a tantrum, just like the party’s reaction to President Trump’s election itself.

It was predictable that if the funeral of a Senator was exploited  as an opportunity to attack the President, the hearings on his Supreme Court nominee would certainly be. (I am not finished looking, but so far I can find no comparable direct attacks on Barack Obama during the hearings on his two nominees.) Here, for example, is the reliable demagogue Dick Durbin (D-Ill), doing his best Keith Olbermann imitation:

“You are the nominee of President Donald John Trump. This is a president who’s shown us consistently he’s contemptuous of the rule of law. He’s said and done things as president which we’ve never seen before in history. He dismissed the head of the FBI when he wouldn’t bend to his will. He harasses his attorney general on almost a daily basis in the exercise of his office, and I didn’t vote for Jeff Sessions, but I have to tell you there should be some respect at least for the office he serves in. And it’s that president who’s decided you are his man. You’re the person he wants on the Supreme Court. You are his personal choice. So are people nervous about this? Are they concerned about it? Of course they are.”

As in the hypocritical remarks by the McCain mourners. Durbin is hilariously self-indicting. Durbin’s party has been  contemptuous of the rule of law in areas where the President has been committed to enforce it, as with illegal immigration. Durbin and his party have undertaken direct assaults on the First, Second, and Fourth Amendments. The way Democrats are conducting themselves in this very hearing has never been seen before in history. Continue reading

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Afternoon Ethics Warm-Up, 8/29/2018: Amazingly, There Are More Important Ethics Developments Than How Long The White House Flag Was At Half-Mast…

Gooooood Morning!

1 It’s not just bias–ignorance also makes you stupid, Part I. On Fox News this morning, they were breathlessly talking about the importance of stopping the publishing of those evil blue-prints of 3-D printable guns. Why, last year, a plastic gun got through TSA security, and it was loaded! And those 3-D printed guns are cheaper than ever! (nobody mentioned that making a 3-D gun that shoots is still incredibly expensive.)

The report was like science fiction, and the woman in a protesting group who said that these guns needed to be stopped NOW! should have had her head wreathed in tin foil. Did Fox discuss the First Amendment issues? No. Did Fox explain that anyone can make their own gun without a 3-D printer? No. Did Fox explain anything relevant to the actual case? Of course not. Did Fox point out that the judge who just issued the injunction admitted that his action abridged speech? No, not that either.

And no, the other news networks weren’t any better.

2. California is ending cash bail. Good. It may backfire, but a statewide experiment somewhere is needed. Bail may be a necessary evil, but the long-time criticism of the system as being biased against the poor has validity, if not a solution. Not every idea Jerry Brown has is bad, just most of them. My guess is that this will be a PR and political disaster, but hey, I don’t live there. The first time a “non-violent” accused criminal kills someone while on his own recognizance, the someone won’t be anyone in my…oops, I forgot, I have a nephew and a niece in California. Well, they’re rabid Democrats and progressives, so they have consented to the risk, I guess.

Amusing reaction: The bail-bondsmen say that they’ll leave the state if this policy stays. Well, of course. Why wouldn’t they leave? What kind of a threat is that?

3. It’s not just bias–ignorance also makes you stupid, Part II A poll says that a majority of the public can’t name a single member of the Supreme Court, despite a large majority believing that the Court’s decisions greatly affect their daily lives. Worse, most of the public thinks the Court is a partisan body, like Congress, because most of the public doesn’t know the difference between the Supreme Court and an ice cream cones, and virtually none of the public has read a single Supreme Court opinion all the way though in their entire lives. No wonder  the Democrat fear-mongering about Judge Kavanaugh is regarded as a smart tactic. Ignorant people are the easiest to con. Conned people warp our democracy.

That’s why it is unethical to be ignorant. Continue reading

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Ken White Enlightens Us Regarding Judge Kavanaugh

Libertarian, free speech specialist lawyer/blogger Ken White has some news for the anti-Brett Kavanaugh fanatics who are claiming that he will lead an evil Republican plot to take away our civil rights. In a Popehat post titled “You”ll Hate This Post on Brett Kavanaugh”, —which tells you a lot about his readers, don’t you think?—Ken demonstrates that he. unlike the reflex foes of President Trump’s distinguished nominee to replace Justice Kennedy on the Supreme Court, has done his home work, and has made a fair and objective analysis of Kavanaugh’s record on the crucial Constitutional issue of free speech.

His conclusion?

“In conclusion, Kavanaugh’s work on the D.C. Circuit show a judge strongly protective of free speech rights, and part of the trend of applying free speech doctrines both to classic scenarios and to government regulation. His stance on telecommunications and elections laws will get him painted as part of the “weaponize free speech” movement by results-oriented thinkers. He’s strong on First Amendment limits on defamation law and his approach to anti-SLAPP statutes do not, as some have suggested, signal that he wants to make defamation cases easier. But though he might help upset applecarts by applying the First Amendment to regulatory schemes, and will not uphold broad speech restrictions, he will likely not overturn doctrines that make it hard for individuals to recover for speech violations.”

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More From The SCOTUS Nomination Freakout—Unethical Quote Of The Week: Senator Edward Kennedy (D-Mass.)

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be.

The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our President. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice.”

From Senator Ted Kennedy’s speech on the Senate Floor on July 1, 1987, in response to President Reagan’s nomination of Robert Bork to the Supreme Court

Kennedy’s outrageously unfair, vicious, and hyperbolic attack on Robert Bork, then one of the most respected jurists in the country, “worked,” in the sense that it catalyzed an unprecedented assault on a Presidential nominee who was not merely qualified but spectacularly qualified for a seat on the Court, shattering all previous norms and traditions regarding the confirmation of Justices by the Senate. It would not be inaccurate to mark Kennedy’s speech as the beginning of demonization as a standard tactic in mainstream politics, in which the mere fact of being liberal or conservative justifies the characterization of an individual or a group sinister or evil. (See: Southern Poverty Law Center) In hindsight, Kennedy’s rhetorical excess was eventually acknowledged on all sides of the political spectrum to be a false characterization of Bork as a judge and as a human being, though Kennedy, as far as I know, never apologized for it….but then he never apologized for a lot of things. Continue reading

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From “The Ends Justifies The Means” Files: Senator Feinstein’s Ugly Hybrid, And An Ethics Test For Democrats

The test is simple: how unethical are Democrats willing to be, and how flagrantly, as they desperately try to derail President Trump’s nomination to fill the Supreme Court vacancy, when the right to fill such a vacancy is one of the President’s unquestioned powers, as long as his choice meets basic minimum qualification standards?

Based on the recent tweets from superannuated California Senator Feinstein, fighting for her professional life and apparently pandering to the extreme Left as a result, the answer is “Very unethical, unfortunately.”  The Senator tweeted,

“Two-thirds of Americans don’t want women’s access to reproductive health care restricted. President Trump’s SCOTUS nominee could do just that by overturning Roe v. Wade and setting off at least 20 states’ “trigger laws” restricting abortions.

and…

“Overturning Roe v. Wade would take us back to the days of women being severely injured and dying because they can’t get basic medical care. We’ve come too far to go back to those days.

These are both ugly hybrids designed with malign intent, kind of like the Indoraptor in “Jurassic Park II,” except the components of the vile mutation in this instance aren’t a T-Rex and a Velociraptor, but misrepresentation and fear-mongering.

1. President Trump’s (at this point) un-named nominee can’t “overturn” anything; only the full court can do that. He or see could  ride in the Kentucky Derby, I suppose. Any of Obama’s appointees “could” also “overturn” Roe, if enough Justices went along with them. In a case presenting that possibility. Of which there are none currently before the Court. And which may not get before the Court.

Ethics offense: Deliberately making the public more ignorant. And fear-mongering.

2. Feinstein is falsely using “reproductive health care” as a substitute for “abortion.” They are not the same thing.  I don’t know what polling results the Senator is referring to, but if it involved “reproductive health care,” it wasn’t about abortion specifically. Pew, which is the closest thing we have to a fair and non-partisan survey organization, found only 25% of the public wants abortion to be legal in all cases, which is what no restrictions on access to abortion means, assuming Feinstein’s ” “reproductive health care” is the deceptive code it appears to be. (If she really means “reproductive health care,” she’s nuts. Who has ever stated an opposition to “women’s access to reproductive health care”?)

Ethics offense: Dishonesty. Deceit. Obfuscation. Misuse of statistics to confuse rather than clarify.

And fear-mongering.

3. The second tweet is irresponsible and flat-out false. Overturning Roe-–in that yet to be identified future case that has gone through the lower courts and poses the issue in a way that a majority of the Court deems appropriate for review, with the result accomplished by the presumed vote of the unidentified Justice who, like the rest of the yet to be assembled Court majority, will determine the case without regard for the facts or established law, stare decisus or the outcome of oral arguments—would not do anything but return the determinations of policies regarding what restrictions, if any, will be placed on abortion to the states, and to the voters in those states, with the results very much in doubt.

Ethics offense: Deliberately making the public more ignorant. Dishonesty. Deceit. Obfuscation.

And fear-mongering.

No elected official who deliberately engages in dishonest tactics like this can or should be trusted by the public with power or influence. We should all keep close watch on how much lower abortion advocates are willing to go. For the ends do not justify the means, and politicians, parties, and party leaders who signal otherwise are a menace to democracy, no matter what the issue may be.

 

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