Unethical Quote Of The Week: Chelsea Clinton

April 23, 2016April 23, 2016 / Jack Marshall / 20 Comments

NEW YORK, NY - APRIL 17: Chelsea Clinton speaks at the Clinton Foundation's No Ceilings: The Full Participation Project at the Lower Eastside Girls Club on April 17, 2014 in New York City. Sharing the stage with her mother Secretary Hillary Rodham Clinton, the project is the first in a series of live and virtual dialogues designed to hear directly from girls and women, men and boys about their hopes and fears for the future. The event, which took live questions from schools around the country, is working to advance progress for women and girls around the world. (Photo by Spencer Platt/Getty Images)

(Of note: The Clintons are now the first family with three members having one or more “Unethical Quotes” on Ethics Alarms)

“It matters to me that my mom also recognizes the role the Supreme Court has when it comes to gun control. With Justice Scalia on the bench, one of the few areas where the Court actually had an inconsistent record relates to gun control. Sometimes the court upheld local and state gun control measures as being compliant with the Second Amendment and sometimes the court struck them down. So if you listen to Moms Demand Action and the Brady Campaign and the major efforts pushing for smart, sensible and enforceable gun control across our country — in disclosure, have endorsed my mom — they say they believe the next time the Court rules on gun control, it will make a definitive ruling. So it matters to me that my mom’s the only person running for President who not only makes that connection but also has a strong record on gun control and standing up to the NRA. This is one of those issues I didn’t know I could care more about until I became a mother. And I think every day about the Sandy Hook families whose children every day, don’t come home from school. And I can’t even imagine that living horror and tragedy.”

—-Chelsea Clinton, semi-incoherently campaigning for Mom this week.

Law professor Ann Althouse was really irritated by this speech, and posted twice about it. She points out that the Supreme Court in fact does not have an “inconsistent record” on gun control, so this statement is either ignorant or untrue—a tough call, since it’s Chelsea, and there is no reason to believe that she knows what she’s talking about, and she’s also a Clinton, which means that lying is in her DNA.

Althouse notes that the assertion about the Court sometimes upholding local and state gun control measures as Second Amendment compliant and sometimes striking them down is “flat-out false.” Incompetent, irresponsible, or dishonest? Only Chelsea knows for sure, but “unethical” covers all three. Writes Althouse:

“She’s saying the cases are in disarray and the time is ripe for clearing up the confusion, getting to something “definitive,” but that’s not true. She’s really promoting changing the law that got settled in 2 very high profile, extensively briefed and argued cases that produced carefully thought out opinions. The Second Amendment does require application in particular cases (such as the case from last month, Caetano v. Massachusetts, which said the right included stun guns). So there are details to work out, but things have not been left in a state of confusion or in need of “a definitive ruling.”

Continue reading →

The Costs Of Civic Ignorance: We Now Have A Frontrunning Candidate For President Who Wants To Gut Freedom Of The Press

February 27, 2016February 27, 2016 / Jack Marshall / 17 Comments

Yesterday, flushed with the fact that polls said he “won’ this week’s debate despite outrageous lying, posturing, and incoherence, Donald Trump said that if elected, he will muzzle journalists with fear of libel suits:

“One of the things I’m going to do if I win… I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.We’re going to open up those libel laws so when The New York Times writes a hit piece, which is a total disgrace, or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected. We’re going to open up libel laws and we’re going to have people sue you like you’ve never got sued before.”

It’s hard to say what is the dumbest or most alarming thing Trump has said this campaign season, but this is close. To begin with, journalism cannot function under the constant threat of libel suits. This device is already used to bully websites, a form of journalism, and blogs like mine, which don’t have the resources to fight censorious and frivolous suits. Second, the statement proves that Trump is ignorant about the Constitution, ignorant about the law, ignorant about American values—Can you make America great again when you don’t comprehend the culture, traditions or history in the first place? Of course not—and ignorant about the powers of the Presidency, which is fairly shocking for someone running for the office. Luckily for Trump, and unluckily for the country, a lot of Americans are even more ignorant than he is.

Third: this can’t be done unless Trump intends to declare himself Emperor, or something similar. The Supreme Court dealt very emphatically with this issue in the 1964 case of New York Times v. Sullivan, which ruled that win a defamation case against a newspaper (and now, by extension, any journalist), a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault; and 4) some tangible harm to the person or entity who is the subject of the statement. Public officials and public figures–celebrities, people in the news, reality stars, Bozo the Clown— must show that alleged libelous statements were made with actual malice—that is , they were maliciously intended to harm the subjects and the writer and publisher knew they were false, or were reckless is determining if the were false or not-–to recover in an action for defamation.

The standard of proof is also high for libel against the press, and this is to protect the press. A plaintiff must show actual malice by “clear and convincing” evidence rather than the lesser burden of proof in most civil cases, preponderance of the evidence.

Sullivan is a bulwark of First Amendment jurisprudence. It isn’t going anywhere. Conservative justices wouldn’t overturn it; liberal justices wouldn’t touch it. Justice Scalia, brought back from the dead, would declare it untouchable. If there is a single legal scholar who has advocated overturning the case in whole or in part, he or she is an outlier or a crackpot. It was a 9-0 decision. Justice Brennan, writing for the Court, wrote… Continue reading →

Ethics Review Of “Supreme Court Vacancy Theater”

February 17, 2016February 17, 2016 / Jack Marshall / 104 Comments

The short review would be “Yecchh.”

The reason that the earlier Ethics Alarms post about the death of Justice Scalia expressed the wish that President Obama on his own declare that he would defer the almost certainly futile appointment of a successor to the tender care of the next President was precisely because it was obvious that any other course was just going to create more ugly partisan name-calling and hypocrisy, accomplishing nothing positive and wasting a lot of energy and time. I also knew that this most divisive of POTUS’s would no more do that than he would deliver his next speech in a duck voice. Thus we have the theater, with people who should know better acting like the Republican Senate’s announcement that it would not be voting on President Obama’s nominee, should he make one, is some kind of gross breach of duty and ethics, and people who don’t know better acting as if being one Justice short is some kind of Armageddon. Neither is true.

Nor is there any reasonably similar set of circumstances and conditions that makes the GOP’s entirely political decision, and Obama’s entirely political decision to test it, some kind of breach of precedent. There is no precedent—not with these factors in play:

A Democratic President with both Houses controlled by the Republicans

An ideologically and evenly divided Court, with the new Justice potentially having a momentous and nation-changing effect on the determination of many looming cases

An unusually partisan and ideological President who has proven unwilling and unable to seek legitimate input from the opposing party, and who, in fact, has been personally and bitterly insulting toward it

A rebellion against the “establishment” in both parties, from the extreme reaches of both parties, on the grounds that neither is extreme or combative enough

A lame duck, not especially popular President and an approaching national election that is currently being molded by unpredictable personalities and events, and is likely to be hotly contested..

The Supreme Court unusually central to the government of the country.

The vacancy on the Court being created by the death of one of the Court’s most influential, ideological and powerful members.

A degree of political division in the public not experienced since the Civil War.

These are all material factors, made more material in some cases because of the other factors. Thus accusations that the Republican have engaged in some kind of grand, historical crime against democracy is, to the extent the accusers believe it, crap, and to the extent that they don’t, ignorant. Continue reading →

Ethical Quote Of The Month: Supreme Court Justice Antonin Scalia

February 14, 2016February 14, 2016 / Jack Marshall / 11 Comments

“I have no illusions that your man will nominate someone who shares my orientation, but I hope he sends us someone smart. Let me put a finer point on it. I hope he sends us Elena Kagan.”

—The recently departed Antonin Scalia, speaking to Obama advisor David Axelrod seven years ago, as President Obama was faced with making his first Supreme Court nomination upon the retirement of Justice Souter.

Kagan, of course, was finally chosen to fill the second SCOTUS vacancy. Axelrod treats this conversation as somehow shocking, which I guess it would be to a political operative like him, to whom partisan warfare is everything,. Yet Scalia, who was known to be good friends with several of the more liberal members of the court, including Kagan, displayed with that private statement to Axelrod the professional attitude I have heard from many lawyers, and that perfectly describes my own. What is important to have on the Supreme Court are the best and most competent legal minds available. Assuming such judges also possess integrity, the third branch of the government will be in good hands. Continue reading →

Thoughts On The Death Of Supreme Court Justice Antonin Scalia

February 13, 2016February 13, 2016 / Jack Marshall / 226 Comments

Supreme Court Justice Antonin Scalia, the Supreme Court’s most adamant, eloquent, controversial and influential conservative jurist and one of the most important theorists in the institution’s history, died today, unexpectedly, on a ranch near San Antonio while on a hunting holiday. He was 79.

Reflections:

1. I had a beer with the Justice at a bar function a long, long time ago, after entertaining the assembled legal heavyweights. He was friendly, funny, and gregarious, and when I asked him if he would be on the Supreme Court for the rest of his life, he said, “God, I hope not!”

2. While everyone will be saying that this ups the ante in the Presidential race, that’s impossible. The importance of the election couldn’t be greater. The vacancy Scalia’s death creates, unfortunately,will increase the level of demagoguery from both parties, with the appointment of Scalia’s replacement being elevated to the equivalent of a life and death matter obliterating all other considerations. Anyone who argues that will be exposing their true status as a hack, appealing to hysterics, ignoring te ethical value of proportion. The composition of the Court is important, but it is not that important.

3. What is most important to the Court, and has been lost since Robert Bork became the first qualified judge to be blocked by pure partisan considerations despite undeniably outstanding qualifications, is to have smart, able, proven justices. Scalia was such a jurist.

4 .One of the traits of a qualified jurist is a refusal to pre-judge any issue or case before hearing arguments and knowing all the facts. Several of the current justices, including Scalia, have been sucked into the bitter partisan battles of this era and have made comments that called this trait into question. Continue reading →

Mission Accomplished: Hillary Corrupts The Human Rights Campaign

January 19, 2016January 19, 2016 / Jack Marshall / 12 Comments

Hillary Clinton’s dishonest spinning of her gay rights positions received an endorsement today, as the U.S.’s largest lesbian, gay, bisexual and transgender civil rights organization chose her as its choice for President. The Human Rights Campaign’s board of directors, made up of community leaders nationwide, voted to endorse Clinton, and said in a statement:

“All the progress we have made as a nation on LGBT equality — and all the progress we have yet to make — is at stake in November…Despite the fact that a majority of Republican and independent voters today support federal protections for LGBT Americans, the leading Republican candidates for president have threatened to halt progress as well as revoke, repeal, and overturn the gains made during President Obama’s two terms…”

This statement means, in essence, that the largest group of LGBT advocates have openly endorsed the Joy Behar approach to civic responsibility. Behar, on “The View,” you may recall, said brazenly (well, she says everything brazenly) that she’d vote for a proven rapist as long as he “voted” for issues that were important to her, a.k.a. abortion rights. Single issue voters of this low ethics threshold are irresponsible and breach their civic duties by making democracy itself incoherent and too easily manipulated—by cynical, ethics-free, power-mongers like Hillary Clinton. Are they even aware, I wonder, that openly associating a group with a candidate of proven ethical bankruptcy—even on the issue they think she embraces!–calls into question their own integrity, trustworthiness and values?

The disconnect between conservatives and LGBT Americans stems in part from a false belief that gays and other Americans of non-traditional sexuality aren’t as red, white and blue as they are. Being American means caring more about, say, the economy, unemployment, the debt, the collapse of schools, the miserable state of colleges, terrorism, racial distrust, the still burgeoning cost of health care and the welfare of your neighbors, children and fellow citizens than about narrow, single issues of special concern to you or your “tribe.” I think this way; so do most of the LGBT people I know. It is the ethical value of citizenship in action. Could I respect someone who found Donald Trump appropriately nauseating, knew he would be a human and cultural disaster for the nation, but supported him solely because he swore he would protect LGBT interests? No. Of course not.

This endorsement of Hillary Clinton is exactly as irresponsible. Continue reading →

“Who Are You Calling A Nut?” And Other Ethics Issues In The Community College Shooting Aftermath (Continued)

October 6, 2015October 7, 2015 / Jack Marshall / 215 Comments

I apologize for the length of this two-part entry, but the preponderance of fact- and reasoning-free anti-gun hysteria in the wake of the Oregon shooting has even exceeded Sandy Hook levels, a development I didn’t think was possible. An emotional national reaction to such a tragedy is fine, and natural, as long as it doesn’t stampede policy-makers and make the public dumber and more ignorant than they already are regarding basic rights, the reasons for them, and the limits of law and government. This post and its earlier installment are offered to catalogue, in part, the ethics carnage, and perhaps to save some readers time when they are confronted with a usually sane friend or family member who begins ranting about how “ridiculous” it is that this “problem” hasn’t been “solved” and how it’s all the fault of the NRA and bribed politicians, because if Australia can do it, why can’t we? In my experience, however, the angry anti-gun zealots—yes, you can still be a zealot and talk about “common sense solutions” if they are either not sensible or not solutions—don’t want to hear facts or reason. People have died, guns are bad, and why can’t we stop it? The same people also tend to think we can stop prejudice, poverty, risk, inequality, war, and the effects of mankind living on the planet. They also rank “Imagine” among the most profound songs ever written.

Sigh.

Here are the rest of the points:

V. Another Facebook friend published this chart…

…and said that it showed that “states with fewer gun regulations had frequent gun related murders than those with more regulations. It doesn’t show that. It shows, for example, that Vermont, Maine and North Dakota have few regulations and low gun murder rates. I know him well–he’s an honest man. But he saw what he wanted to see, not what was actually on the chart. Meanwhile, everyone “liked” his post.

VI. I know I’ve made this observation before, but it still drives me crazy. I just had another argument over it with my sister, and she hung up on me. Obama and the hoard leaps on this shooting to once again lobby for “common sense” gun controls that most agree wouldn’t have stopped this shooting. There is , I would say, an obvious, ethical and logical disconnect there. If the measures being sought would not have stopped this shooting, why all the angry, “blood on your hands,” “how long will this go on” rhetoric? The clear and misleading message is that the shooting would have or might have been stopped if only, if only, but when the substantive recommendations are listed they have little or nothing to do with the incident itself. Why do smart people tolerate this? The shooter’s father–who, by the way, shares at least as much culpability for the Oregon shooting as anyone, and a lot more than the NRA, gave an interview in which he blamed the shooting on the fact that the law allowed his son to acquire 13 guns: Continue reading →

“Who Are You Calling A Nut?” And Other Ethics Issues In The Community College Shooting Aftermath (Parts I-VI)

October 5, 2015October 6, 2015 / Jack Marshall / 33 Comments

I. A good friend, who is a nice man so I chose not to upset him by explaining why he sounds like an idiot, announced on Facebook that he wasn’t reading any more “gun nut” posts. Hmmmm. I wonder what he thinks a “gun nut” is? Is a gun nut a teacher who punishes a student for pointing his finger like a gun, or who prevents a deaf child from signing his name, Gunner? Or is it someone who believes that the Second Amendment, which wasn’t second by accident, should be followed? Is it someone who keeps saying that laws need to be passed that will stop shootings like the one in Oregon, but who either has no realistic proposals to suggest or who suggest measures that wouldn’t have affected that shooting at all? Isn’t it nutty to engage in magical thinking? I think so.

II. I also think it’s nutty, not to mention hypocritical, to decry the lack of “civil debate” regarding gun policy and then call anyone who doesn’t want guns melted down by government order “nuts.” Actually it’s worse than that: pundits, politicians and anti-gun advocates are increasingly equating opposition to gun regulations advanced using false arguments, dubious logic, ad hominem attacks and deceitful statistics with insanity and intractable evil. Frankly, I resent it. I’m not opposed to sensible gun regulations, but my job is to oppose false arguments, dubious logic, ad hominem attacks and deceitful statistics, as well as to make sure that they don’t succeed lest “the ends justify the means” become a social norm.

III. Speaking of hypocritical, Mike Huckabee and others have been quite properly criticized (by me, for example) by claiming that since the Supreme Court ruling on gay marriage is “wrong,” it shouldn’t be followed. Yet the most vociferous defenders of that SCOTUS decision simultaneously advocate anti-gun measures that are forbidden by the Court’s decisions interpreting the Second Amendment….because, you see, “it’s wrong.” Continue reading →

KABOOM! Justice Sonia Sotomayor Is A Supreme Ethics Dunce

October 1, 2015 / Jack Marshall / 19 Comments

Sonia Sotomayor is far from my favorite Supreme Court Justice, as she is the court’s most vocal advocate for pro-minority discrimination and a practitioner of touchy-feely law. Still, I assumed she had integrity, or at least my skull did, because it exploded all over the place when it learned the truth.

Federal employment law forbids employers from having unpaid positions unless they meet stringent requirements of providing genuine educational experience to such workers while not personally (as opposed to professionally) benefiting from their services. Nevertheless, Sotomayor has used unpaid interns as her servants —not law clerks or researchers, but servants—since 2010. Continue reading →

If Anyone Starts Paying Attention To What Bernie Sanders Is Saying, He’s In Trouble

September 25, 2015September 26, 2015 / Jack Marshall / 10 Comments

So far, Bernie Sanders’ major function in the Democratic presidential nomination race is as a gauge of how badly Hillary Clinton is doing. The same function could be served by a wooden spoon or an Elmo doll, but Bernie will do: as Hillary’s machinations and lies about them sloooowly convince even Democrats that she should not be allowed near any office that includes a button labeled “Power,” he rises in the polls. So far, this had not required anyone actually thinking about Sanders himself, but the contents of a recent speech to a throng in Portland, Oregon should be cause for alarm. Sanders managed to announce his willingness to rig the Separation of Powers and eliminate judicial independence as well as his contempt for judicial ethics and his ignorance of how the Supreme Court works, all at once. All of this indicates that Sanders really isn’t qualified to be a U.S. Senator, much less President.

In his speech, to the sounds of cheers, Bernie shouted, “My nominees to the U.S. Supreme Court will in fact, have a litmus test and that test will be that they will have to tell the American people that their first order of business on the Supreme Court will be to overturn Citizens United.” Those cheers are interesting. My guess would be that not a single member of the audience, and quite possibly not even Bernie himself, has read the decision. Most people who turn red in the face and twitch when one mentions Citizens United do so because they think that it stands for the proposition that “corporations are people.”

It actually stands for the rather reasonable principle that the First Amendment protects the rights of people who band together for common purposes, and who wish to use such organizations to express their opinions regarding elections. The decision forbade the government from restricting independent political expenditures by a nonprofit corporation, and by extension to for-profit corporations, labor unions and other associations. Among other things, the law that was struck down in the case allowed the Federal Government to ban books and films based on content. Continue reading →

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“I have no illusions that your man will nominate someone who shares my orientation, but I hope he sends us someone smart. Let me put a finer point on it. I hope he sends us Elena Kagan.”

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