Tag Archives: trust

A Question of Trust

U.S. Senator Chris Murphy has introduced a bill that would require the Supreme Court to develop a code of ethics. (Surprising at it may seem, the high court does not have such a code, although all other courts do.)

The bill was prompted by several recent controversies over judicial recusal, especially a number of cases in which Scalia–who has grown more voluble and intemperate over the years– has spoken publicly on the merits of cases that were highly likely to come before the Court (historically, and under existing codes of ethics, a judicial no-no) and then refused to recuse himself when the cases were argued.

There has also been considerable criticism of Justice Thomas, who has failed to recuse himself in cases where his wife has a clear interest in the result. Justice Kagan has been criticized for sitting on cases in which she was involved to some extent as Solicitor General.

As a scholar of constitutional courts noted on a listserv the other day, “the US is still rare in the world in making recusal of a judge a matter for the personal decision of that judge, without any way to contest it.  In the German Federal Constitutional Court, for example, the decision to remove a judge from a particular case is made by the rest of the judges in that Senate with the judge in question not participating.    We should have some comparable process here.”

Codes of ethics are about more than recusal, of course. They are centered on avoiding even the appearance of impropriety, in recognition that the legitimacy of public institutions and especially the Courts is dependent upon public trust.

Ethics codes typically limit the value of gifts that may be accepted, or forbid their acceptance at all. That includes junkets, generously paid speaking engagements, and other activities or favors that might produce bias. And most codes of ethics require a measure of disclosure significantly greater than is current Court practice.

In a government based on separation of powers, the legislature may lack the authority to tell the Court to clean up its act–and the Court gets the final word on that issue. In a Court as ideologically divided as this one, I suppose decisions about recusal could themselves become politicized. The GOP’s Tea Party wing will probably oppose Murphy’s bill, since most of the shenanigans these days are by conservative jurists. So passage of this measure is hardly a slam-dunk.

That said, it really is indefensible that the Supreme Court exempts itself from ethical principles that apply to other judicial and administrative entities. Even Congress has a Code of Ethics, however honored in the breach it may be.

When Justice Scalia goes duck hunting with a litigant (Dick Cheney) whose case is then pending before the Court; when Thomas sits on a case despite the fact that his wife’s organization is an interested party, I think skepticism about their ability to render a dispassionate verdict is understandable–and foreseeable.

Such behavior erodes the public trust, and it greatly diminishes the stature of the Court.

There is a reason Courts should be–and be seen to be–incorruptable. They are, after all, in the business of disappointing litigants; every time someone wins, someone else loses. If credible charges of favoritism or bias can be leveled, even if untrue, citizens ultimately lose respect for the rule of law.

Judges–especially Supreme Court Justices– used to take great pains to avoid the slightest appearance of impropriety; they used to aspire to be “as pure as the driven snow.” Lately (as Mae West memorably put it), they’ve drifted.

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The Challenges of Complexity

Last night, I attended a dinner in Lafayette. A delightful man at my table turned out to be a retired environmental engineer, and during the conversation, the subject of fracking came up.

I’ve had a good deal of trepidation about the practice, so I was surprised when he said that–done with a reasonable level of care–it doesn’t pose a threat to environmental safety. He also noted that the abundance, and relatively low cost, of natural gas could both lessen our dependence on foreign oil and give the economy a needed boost.

On the way home, I thought about our conversation, and realized that I had absolutely no way to evaluate the accuracy of his observations, or to weigh them against the arguments of those who oppose fracking. I don’t know enough.

The problem is, in so many areas of our communal life, we are all in the position of not knowing enough to make sound, evidence-based decisions. In an increasingly complex world, a world in which none of us can possibly have the knowledge needed to make independent decisions, we have no alternative but to place our trust in experts.

I’ve written a lot about the “trust deficit” in America, and its various causes. This dinner-table conversation focused me on one of the most troubling results of that deficit.

How do we make sound policy decisions when so many of the issues we face require considerable expertise, but we don’t know who has that expertise, who is able to render an unbiased and informed opinion, and who is “in the pocket” of an interest group or otherwise untrustworthy?

What was the old Chinese curse? “May you live in interesting times.”

We are.

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Loss of Trust

In 2009, I wrote a book titled Distrust, American Style in which I argued that a loss of trust in our social institutions–and especially in our government–has had significant negative consequences for our ability to function as a productive society.

Things haven’t improved since 2009. If anything, our levels of distrust have continued to grow, and for good reason.

A couple of days ago, major news outlets reported the emergence of a legal memorandum generated during the George W. Bush Administration. There was evidence that the Administration had attempted to destroy all copies, for obvious reasons: the memorandum opined that the “enhanced interrogation” techniques being employed and defended by the Bush Administration were war crimes. Whether one agrees with that assessment or with the more accommodating analysis provided by John Yoo, it is clear that the White House was aware that their actions raised significant legal and constitutional issues, and that it was prepared to ignore both those issues and the rule of law.

It would be comforting to conclude that such actions were confined to one rogue Administration, or at least to the federal level, but evidence suggests otherwise; in fact, there has been a rash of disclosures of local-level prosecutorial misconduct recently.  In Illinois, a recent investigation of the criminal justice system uncovered evidence that–among other improprieties–prosecutors had failed to turn over documents in their possession proving that a man convicted of double murder in 1992 could not possibly have committed the crime he was accused of — because he was in police custody at the time. (But the police managed to get him to sign a confession. It is estimated that some 25% of criminal confessions are extracted from people who are actually innocent of the crime to which they confess–another rather disturbing bit of data.)

Add to such unsettling disclosures the constant drum-beat reporting corporate misdeeds, and the pervasive belief that wealthy individuals are able to “game the system” in their favor–able to buy favorable tax treatment, able to escape regulation, able to evade the consequences of predatory behaviors, able to elect public officials that will do their bidding–and you get a level of cynicism that undermines social cohesiveness and our ability to come together to address the issues that face us.

When people no longer trust our governing institutions, it is easy to sell them conspiracy theories. It is easy to turn groups against each other. (Want evidence? Look at the recent disclosures about the tactics employed by the National Organization for Marriage!)

We can’t rebuild trust by wishing it back. It will take a national effort to insure that our institutions are trustworthy–beginning with government. Because if we don’t trust our common institutions–government, yes, but also the church, major league sports, businesses and financial institutions, none of which have exactly covered themselves with glory lately–we certainly aren’t going to trust each other.

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Who Do You Trust?

In its business section this morning, the New York Times had a lengthy story about Angie’s List, the Indianapolis-based company that offers members access to reviews of service providers of various kinds. The reviews are provided by the members, and the article noted that–unlike sites like Yelp!–those reviews are not anonymous. While Angie’s list doesn’t publish the names of the reviewers, it does insist that evaluations come from identifiable individuals.

As the company’s public offering explained, they require this because it’s hard to trust anonymous statements and “facts” culled from the internet. The insistence that reviews come from verifiable sources is one way to increase the trustworthiness of the information being provided.

Lack of trust may be the signal characteristic of our times.

Angie’s List isn’t the only organization trying to deal with the wild west that is our current information landscape–far from it.  I would argue that much of what ails America these days is either enabled by or a direct result of mis-information, dis-information and  information uncertainty.

We are all being constantly bombarded with “news” that we aren’t quite sure we can trust.

The days when Mr. and Mrs. America tuned in to Walter Cronkite–and relied on the accuracy of his reporting–are long gone. Newspapers–with a few exceptions–fill the few pages they still publish with restaurant reviews and diet tips rather than fact-checked reporting. Cable “news” is anything but; it’s spin and talking points, and most Americans recognize that. It is increasingly difficult to determine the credibility of information we find online. No matter how goofy the perspectives or bizarre the conspiracy theories, you are likely to find confirmation of them in some fevered corner of the internet. (Just ask Rep. Bob Morris, who found “evidence” confirming his suspicions about those sneaky, abortion-loving, lesbian Girl Scouts.)

The problem is, when we no longer have authoritative sources and institutions we trust, societies don’t work very well. We lose an essential element of what social scientists call “social capital.” (Warning: shameless plug approaching.) I wrote about the causes and troubling consequences of diminished social and institutional trust a couple of years ago, in my book Distrust, American Style.

It isn’t just the folks who find internet confirmation that aliens landed in Roswell and the government covered it up. We’ve always had conspiracy theorists who are, shall we say, lightly tethered to reality. Today’s information landscape promises consequences far more pernicious than enabling the Holocaust deniers or encouraging the religious zealots convinced that the Rapture is imminent.

When ordinary Americans can’t be sure who is telling the truth, it’s easier to retreat into “us versus them” views of the world; easier to believe that a President who doesn’t look like you is really a secret Kenyan Muslim; easier to believe that an effort to provide healthcare is really an attack on religious liberty.

There is broad recognition that we have a problem.

The question is: how do we fix it?

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Who Can We Trust?

The Indianapolis Star has been advocating rather forcefully for laws to tighten restrictions on the lobbyists who exercise increasing power at the Statehouse. The Star argues that such restrictions are necessary if we are to restore a modicum of trust in our legislative body.

 They’re right.

 My most recent book—“Distrust, American Style”—was an inquiry into the current American “trust deficit.” I learned a lot.

In recent decades, old-fashioned corruption and greed combined with regulatory dysfunction to undermine business ethics. Enron, WorldCom, Halliburton, the sub-prime housing market meltdown—these and so many others are the stuff of hourly news reports. Many business scandals were enabled by failures of federal regulatory agencies; others were traced back to K Street influence-peddlers.

But it goes well beyond Wall Street greed and government incompetence.

Religious organizations haven’t been covering themselves with glory, heavenly or otherwise. Revelations ranging from misappropriation of funds to protection of pedophiles to the “outing” of stridently anti-gay clergy have discouraged believers and increased skepticism of organized religion. In that other American religion, major league sports, the news has been no better. High profile investigations confirmed widespread use of steroids by baseball players. An NBA referee was found guilty of taking bribes to “shade” close calls, and others have been accused of betting on games at which they officiate.  Michael Vick’s federal  indictment and guilty plea on charges related to dog fighting was tabloid fodder for weeks.

Scandals have even involved charitable organizations; a few years ago, United Way of America had to fire an Executive Director accused of using contributions to finance a lavish lifestyle, and other charities have been accused of spending far more on overhead than on good works.

In short, the institutions of our common civic life have seemingly unraveled.

Perhaps—as my more cynical friends believe—things have always been this way. But in earlier times, we did not have 24/7 cable news, millions of blogs and assorted broadcast pundits constantly telling us about it. If Americans are less trusting than we used to be, it’s no wonder.

Unfortunately, when citizens don’t know who they can trust, everything becomes fodder for suspicion and urban legend. Eventually, government grinds to a halt, and even the most routine tasks fall victim to conspiracy theories and fear-mongering. We are perilously close to such a meltdown in American civic life.

Our system of government was deliberately structured around the notion of checks and balances. The founders recognized that not all public servants would be trustworthy; their response was to create structures and competing power centers that would force accountability and transparency—to create a system we could trust, even when some people in that system weren’t trustworthy.

Perhaps the Indiana legislature is filled with the innocent do-gooders that Pat Bauer and Brian Bosma touchingly describe. But many of us have our doubts. The modest reforms supported by the Indianapolis Star would be a welcome step toward removing those doubts and restoring a measure of  trust in our governing institutions.