Tag Archives: ethics

Now Alito

There’s a lot to unpack about the ongoing disclosures about Supreme Court Justices,  beginning with the old adage that power corrupts. 

Digging a bit deeper, it’s interesting to note just who has been shown to be morally–and probably legally–corrupt. (Hint: it hasn’t been the liberal female justices. There are stories about Elena Kagan’s refusal to accept a gift of bagels on ethical grounds!) The culprits are the far-right Justices who sit on the Court courtesy of Leonard Leo and the Federalist Society.

It began with disclosures about Clarence Thomas and his appalling wife. If a lower-level judge accepted–and hid– lavish gifts and travel from a billionaire ideologue and failed to recuse himself from cases involving that billionaire–not to mention cases in which his wife was an interested party–that judge would soon be removed from the bench. 

Now we discover that Justice Alito shares more than ideology with Thomas. Pro Publica broke the story:

In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.

Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.

In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.

Alito–like Thomas–failed to report the trip on his required annual financial disclosure form. Ethics experts tell Pro Publica  that the omission violates federal law. Those experts also report being unable to identify another instance of “a justice ruling on a case after receiving an expensive gift paid for by one of the parties.”

ProPublica’s investigation sheds new light on how luxury travel has given prominent political donors — including one who has had cases before the Supreme Court — intimate access to the most powerful judges in the country. Another wealthy businessman provided expensive vacations to two members of the high court, ProPublica found. On his Alaska trip, Alito stayed at a commercial fishing lodge owned by this businessman, who was also a major conservative donor. Three years before, that same businessman flew Justice Antonin Scalia, who died in 2016, on a private jet to Alaska and paid the bill for his stay.

Such trips would be unheard of for the vast majority of federal workers, who are generally barred from taking even modest gifts.

Alito claims he and Singer never discussed business, and that when Singer’s cases came before the court, he’d been unaware of his connection to them.

Right. And I have a bridge to sell you…..

Talking Points Memo points to the larger issue:  justices groomed and chosen by the Federalist Society “remain ‘kept’ in perpetuity” by the Right-wing donor network that got them there … “Sugar Justices, if you will.”

What is especially infuriating about these disclosures is that they involve Justices who posture as moral arbiters and issue judicial opinions based upon religious dogma rather than constitutional precedent. 

I have previously characterized Alito’s decision in Dobbs as profoundly dishonest, because he cherry-picked and misrepresented both history and legal precedent in order to achieve his desired (paternalistic) result.  Given Pro Publica’s report, it seems Alito’s dishonesty isn’t limited to his jurisprudence.

Thomas insisted that Harlan Crowe (whom he met after he joined the Court) was a “dear friend.” Alito says he had “no idea” that Singer was connected to ten cases before the Court. Neither allegation passes the smell test. According to Pro Publica, Alito and Singer have appeared together at public events, and Singer introduced Alito’s speeches on at least two occasions– the annual dinner of the Federalist Society (where Singer told an anecdote about their fishing trip) and a dinner for donors to the equally far-Right Manhattan Institute. 

The disclosures are profoundly depressing. They should also be a wake-up call.

It is past time to apply binding ethical standards to the Court. Imposing term limits, and adding Justices to the Court would dilute the influence exercised by corrupt culture warriors doing Federalist Society bidding..

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Originalism And Corruption

At what point does an ideological lens morph into dishonesty and corruption? I don’t know the answer to that, but it is a pressing question raised by some highly dubious and arguably corrupt behaviors by two current Supreme Court Justices. 

In the case of Clarence Thomas, highly questionable behavior has been obvious–and criticized–for years. More recently, with the revelations about his wife Ginni and her deep involvement in Trump’s attempted coup, his refusal to recuse himself in cases that might well implicate her is nothing short of scandalous. Now, there are growing, serious concerns about the degree of dishonesty characterizing Samuel Alito’s jurisprudence and (if recent accusations are found to be accurate) improper behaviors.

The purported basis upon which these justices have based controversial opinions goes under the rubric of “originalism.”

So what, exactly, is “originalism”? As a recent post to the History News Network began,

“Originalism.”

That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith. 

They presume that the words of the Constitution possess essentially one “original” meaning.  And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

As the post proceeds to note, historians, linguists, and anyone possessing an ounce of intellectual integrity consider that iteration of  originalism to be simple-minded dogma.

As an article about Amy Comey Barrett put it, arguments for originalism have always rested on flimsy foundations–and conservative judges have routinely ignored the doctrine when it interfered with a desired result.

It turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles. The deeper structure of constitutional jurisprudence is the pervasive and foundational but largely unacknowledged influence of Catholic natural law moral philosophy. Barrett represents more than simply the latest link in the chain of custody for originalist jurisprudence that extends from her mentor, and one of originalism’s founding fathers, former Justice Antonin Scalia, to the present day.

The article argues that a medieval form of Catholicism, rather than Evangelical fundamentalism, permeates the judiciary–and especially the current Supreme Court. The article asserts that it is Catholicism that today forms the linchpin of culture-war conservatism in the United States.

The underlying organizational and intellectual impetus for this influence derives from Thomist Catholic perspectives—on natural law, in particular—that have achieved resurgence in the last 50 years and have infused conservative foundations and think tanks alongside vast amounts of donor money.

As Ruth Marcus noted in a recent column,

When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

Marcus’ column is lengthy, but well worth reading; she traces the evolution of the doctrine and its embrace by conservatives unhappy with the Warren Court’s approach, which I would characterize as a correct understanding of “original intent”–namely, looking to the values the Founders were trying to protect, and endeavoring to protect those values–free speech, freedom of religion, etc.–from previously unanticipated threats emerging from an environment the Founders could never have envisioned. (The Founders said nothing about free speech on the Internet…)

Multiple historians have objected to Alito’s highly inaccurate historic references in Dobbs, and recently a former leader of the anti-abortion movement has alleged that Alito leaked his equally troubling decision in the Hobby Lobby case to one of that leader’s colleagues..

To return to my initial question: when does a fervently held ideology become a corrupt enterprise? There is, after all, a difference between bringing a particular philosophical “lens” to the law and facts of a case (as any lawyer will confirm, it is impossible not to do so) and distorting and/or fabricating those facts and mischaracterizing that law in order to reach a desired result.

Corruption is not always financial. The dictionary defines corruption as “the process by which something is changed from its original use or meaning to one that is regarded as erroneous or debased.” Alito’s jurisprudence–which many lawyers, including this one, have criticized over the years–has arguably devolved into precisely such debasement. 

Senator Durban has announced that the Senate Judiciary Committee will investigate the allegations of that former leak, and there are renewed calls for the Court to adopt a binding code of ethics, which–unlike lower courts–it currently lacks. 

Both that investigation and an undertaking to abide by the ethical principles that bind the rest of the legal profession are long overdue.

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The Manchin Dilemma

There is ample reason to detest Joe Manchin: in a closely divided Senate, he has single-handedly defeated much of Biden’s agenda–including the President’s efforts to combat climate change and voter suppression.

Manchin has been a critical and  mostly reliable vote for Biden’s judicial nominations, but a stubborn obstacle to passage of several measures that are absolutely central to the Democratic agenda, and popular with voters.

What makes his obdurate opposition worse is that it clearly isn’t motivated by principle. If his consistent obstruction was the result of philosophical conviction–part and parcel of a considered political ideology, no matter how wrongheaded–it would still be incredibly frustrating, but the anger would be different.

What infuriates policy wonks and party strategists alike is recognition that , with Manchin, it’s all about the money. (He evidently raised his children with the same self-serving values; his daughter’s fingerprints were all over the Epi-Pen scandal.)

As the New York Times reported,  the Grant Town power plant is

the link between the coal industry and the personal finances of Joe Manchin III, the Democrat who rose through state politics to reach the United States Senate, where, through the vagaries of electoral politics, he is now the single most important figure shaping the nation’s energy and climate policy.

Mr. Manchin’s ties to the Grant Town plant date to 1987, when he had just been elected to the West Virginia Senate, a part-time job with base pay of $6,500. His family’s carpet business was struggling.

When developers approached Manchin, he helped them clear what the Times calls “bureaucratic hurdles.” He then went into business with them.

Mr. Manchin supplied a type of low-grade coal mixed with rock and clay known as “gob” that is typically cast aside as junk by mining companies but can be burned to produce electricity. In addition, he arranged to receive a slice of the revenue from electricity generated by the plant — electric bills paid by his constituents.

The deal inked decades ago has made Mr. Manchin, now 74, a rich man.

If the story stopped there, it would be troubling enough, but it doesn’t.

While the fact that Mr. Manchin owns a coal business is well-known, an examination by The New York Times offers a more detailed portrait of the degree to which Mr. Manchin’s business has been interwoven with his official actions. He created his business while a state lawmaker in anticipation of the Grant Town plant, which has been the sole customer for his gob for the past 20 years, according to federal data. At key moments over the years, Mr. Manchin used his political influence to benefit the plant. He urged a state official to approve its air pollution permit, pushed fellow lawmakers to support a tax credit that helped the plant, and worked behind the scenes to facilitate a rate increase that drove up revenue for the plant — and electricity costs for West Virginians.

Records show that several energy companies have held ownership stakes in the power plant, major corporations with interests far beyond West Virginia. At various points, those corporations have sought to influence the Senate, including legislation before committees on which Mr. Manchin sat, creating what ethics experts describe as a conflict of interest.

Now that he has found himself in a position to cast pivotal votes in an evenly divided Senate, Manchin hasn’t hesitated to block legislation intended to speed the country’s transition to clean energy.  When the war in Ukraine led to calls to boycott Russian gas,  Manchin joined Republicans who are agitating for production of more American gas and oil to fill the gap.

Manchin’s protection of the Grant Town plant can’t be defended by claiming it helps West Virginia residents, either. As the Times article notes, while the power plant continues to pay Manchin handsome dividends, “it has harmed West Virginians economically, costing them hundreds of millions of dollars in excess electricity fees. That’s because gob is a less efficient power source than regular coal.”

The bulk of Manchin’s income since entering the Senate has come from one company: Enersystems, Inc., which he founded with his brother Roch Manchin in 1988, the year before the Grant Town plant got a permit from the state of West Virginia.

Enersystems Inc. is now run by Mr. Manchin’s son, Joseph Manchin IV. In 2020, it paid Mr. Manchin $491,949, according to his filings, almost three times his salary as a United States senator. From 2010 through 2020, Mr. Manchin reported a total of $5.6 million from the company.

Manchin will remain in a position to defy science and undermine his President and his party so long as the Senate remains equally divided. Meanwhile, the GOP is pulling out all the stops to keep Democrats from voting and their votes from being accurately counted.

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We Don’t Need No Damn Ethics…Or Cities

As the Indiana General Assembly continues its assault on the goose that lays the state’s golden eggs–aka Indianapolis–members also demonstrate their utter lack of concern for ethical government behavior–state or municipal.

According to the Indianapolis Star, State Senator Jack Sandlin is proposing to void an Indianapolis ethics ordinance that prohibits a county chairperson from doing business with the city. Sandlin’s bill would allow a city employee to serve as both the county party chair and an employee, despite the rather obvious potential for conflicts of interest. 

It just so happens Senate Bill 415 would benefit Cindy Mowery, one of four people who have filed to become chair of the Marion County Republican Party.

Welcome to Indiana, where any pesky ethics law that promises to erect a barrier to problematic behavior can be eliminated by your political buddies!

The legislature’s war on municipal ethics is just one aspect of its constant assault on local control and urban life. There’s a reason that, most years, out-migration in Indiana exceeds  in-migration, and we routinely lose the young people we’ve paid to educate in our universities.

A recent discussion with my youngest son is–unfortunately–illustrative.

My son grew up in Indianapolis, attended college in Chicago, then traveled & worked in Japan. He fell in love with an Indiana woman, and (somewhat reluctantly) returned home. As he tells it, he  was an urban kid who loved cities, and initially, he didn’t see much promise of a vibrant urban life in Indianapolis. But that changed as Indianapolis changed. After living and practicing law in Chicago, he saw the promise of a great quality of life and a reasonable cost of living.  (Needless to say, this made his mother very happy.)

He bought a house in the Old Northside neighborhood, had a family. He and his wife work downtown, their children have attended excellent public schools, they have a wide circle of friends and neighbors with whom they enjoy the urban amenities Indianapolis offers.

So why–as they near college age–is he urging his children to leave Indiana?

He says that, while Indianapolis still has many great things going for it, its future—and especially the future it might be able to offer his children—looks far less rosy,  thanks to the culture of the state. As he says,

Even modest efforts to improve the quality of residents’ lives is threatened by a hostile General Assembly and radicalized state electorate. In most places, cities enjoy a measure of local control, or “home rule.”  Not Indianapolis — at least not today… 

Indiana’s Republicans have gerrymandered electoral districts, with predictable effects on Indiana’s politics. It turned a “conservative” state into something else entirely; the party of “limited government” has become the party of “intrusive central control.” Republican legislators have stripped (or sought to strip) Indianapolis voters of the right to decide quintessentially local matters: to decide how much in local taxes it can raise to provide essential services, to elect local judges, to decide questions of educational funding for public schools, and most recently, even to regulate local matters like zoning, landlord-tenant relations and the issuance of gun permits. None of these limits are placed on rural, largely white counties; only on Marion County (Indianapolis).

My kids are approaching college-age, and I am encouraging them to leave Indiana. Why?

Because I don’t know what life holds for them. I don’t know if they will be fortunate, healthy, and financially secure; or whether they will be dealt setbacks that might make them need assistance or the support and protection of local government.  What I do know is that I want them to find a place—a community—that cares for all its people, not just the wealthy, and not just white people.  Which is why I am strongly encouraging my kids to find universities outside of Indiana and, thereafter, to find a place where people care for each other more than we do in this state. 

 I chose Indianapolis for a quality of life that is, piece by piece, being eliminated as the Indiana General Assembly decides that city folk can’t be trusted to govern themselves or to invest in people or a better quality of place. 

Ultimately, I want my kids to find a place that cares for its people, even if doing so costs a little more.  I want them to live in a place where their vote over purely local affairs matters at least as much as the vote of a rural Trump-loving farmer—and, importantly, where the politics are not animated so much by white grievance. 

Unfortunately, that place isn’t Indiana.

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Talk About Conflicts Of Interest….

A recent report issued by Citizens for Responsibility and Ethics in Washington (CREW) finds that President Trump has 2,300 conflicts of interest. (For some reason, I’m having trouble linking to the report, but it’s easily Googled.)

We see a number of vague accusations of this administration’s “corruption,” but that all-encompassing description doesn’t tell us what the improprieties are, or why the behaviors are unethical. As a result, we are in danger of normalizing them.

The most common definition of a conflict of interest is a situation in which a person is in a position to derive personal benefit from actions or decisions made in their official capacity. CREW puts meat on the bare bones of that definition. The report begins with an explanation of the importance of divestment and the reasons for it.

Prior to President Trump, every modern president divested their business interests before entering office. For decades, this norm of presidential conduct has served as an important signal for both Republican and Democratic administrations to show that, as the nation’s most powerful and prominent public servant, the president would not put personal financial interests before the interests of the country. Divestiture also served as an assurance to the public that the president would not open himself up to undue influence from special interests and foreign governments that might use his businesses as a way to curry favor with him and his administration.

And Trump?

The president has visited his properties 362 times at taxpayer expense during his administration, sometimes visiting multiple properties in a single day. The number of days he’s spent time at a Trump-branded property account for almost a third of the days he’s been president.

One-hundred eleven officials from 65 foreign governments have visited a Trump property.

CREW has recorded 630 visits to Trump properties from at least 250 Trump administration officials. Ivanka Trumpand Jared Kushner are the most frequent executive branch officials to visit Trump properties, other than the president himself. Jared has made 28 known visits, while Ivanka has made 23.

Members of Congress have flocked to President Trump’s properties: 90 members of Congress have made 188 visits to a Trump property.

President Trump has used the presidency to provide free publicity for his properties, which he still profits from as president. As president, Trump has tweeted about or mentioned one of his properties on 159 occasions, and White House officials have mentioned a Trump property 65 times, sometimes in the course of their official duties.

Political groups have spent $5.9 million at Trump properties since President Trump took office. In more than a decade prior to his run for president, Trump’s businesses never received more than $100,000 from political groups in a single year.

Foreign governments and foreign government-linked organizations have hosted 12 events at Trump properties since the president took office. These events have been attended by at least 19 administration officials.

There is much more.

Trump’s behavior has been a truly shocking departure from that of previous presidents, but in all fairness, the expectation that government officials will avoid both conflicts and the appearance of conflicts has been eroded over the years by practices in the Senate.

An article a few weeks ago in The Guardian focused on those practices.

As they set national policy on important issues such as climate change, tech monopolies, medical debt and income inequality, US senators have glaring conflicts of interest, an investigation by news website Sludge and the Guardian can reveal.

An analysis of personal financial disclosure data as of 16 August has found that 51 senators and their spouses have as much as $96m personally invested in corporate stocks in five key sectors: communications/electronics; defense; energy and natural resources; finance, insurance and real estate; and health.

The majority of these stocks come from public companies, and some are private.

Overall, the senators are invested in 338 companies – including tech firms such as Apple and Microsoft, oil and gas giants including ExxonMobil and Antero Midstream, telecom companies including Verizon, and major defense contractors such as Boeing – in the five sectors as categorized by Sludge.

As the article noted, this ownership is not illegal, but such investments raise real questions about lawmakers’ motivations.

We have a lot of work to do.

In 2020, Americans’ first priority must be delivery of an overwhelming, crushing defeat to Trump and the obsequious Republicans who continue to enable him.

Our second must be a wholesale “clean up” of government– reform of electoral systems and governmental structures that facilitate unethical behavior, from state-level gerrymandering and voter suppression, to Senate-level conflicts of interest.

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