Category Archives: ethics

Playing Politics with the Constitution

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What kind of judge do we want as a replacement for Justice Anthony Kennedy?

Folks are talking about a President Donald Trump nominee being a shoo-in because Republicans have a majority in the Senate, and there’s no filibustering of judicial nominations.  I’m not so sure.

The Left, of course, are crying the End of Times and the end of Roe v Wade, but that’s less a factor than a more pernicious conflict in the offing.

Late Thursday, the president met with a bipartisan group of six senators who will play a pivotal role in selecting Mr Kennedy’s successor because they have deviated from their party on key votes in the past. The lawmakers signaled they want an ideological centrist….

Those Senators included Judiciary Committee Chairman Chuck Grassley (R, IA), Susan Collins (R, ME), Lisa Murkowski (R, AK), Joe Donnelly (D, IN), Heidi Heitkamp (D, ND), and Joe Manchin (D, WV).

Litmus tests and centrism.  Collins and Murkowski look like they’re going to hold out for someone who’ll explicitly protect Roe.  I’d like to see that ruling at least adjusted, but a single, narrow issue should not be a deal maker or breaker.  Litmus tests are out of place here.

Others of that crowd are holding out for a centrist, a middle of the roader, so as not to too badly upset the balance of ideologies on the Supreme Court.  The problem with centrism, though, is that it is committed to finding consensus on a case before the Court and doing so for the sake of consensus not because that would represent the best ruling.

Moreover, consensus-building gives too much opportunity to deviate from the text, to legislate by that deviation from the bench, even to amend the Constitution from the bench.  No.  There can be no compromise here.  The words of the Constitution and of any Constitutional law are fixed, and any alteration of them can only be a political decision, not a judicial one.

Nor is there any place for ideology on the Court or in any court.  The Constitution is written and amended by the People, laws are written and enacted by the political branches of our government.  Our judiciary’s task is to apply the Constitution and laws to particular cases before them.  Ideology has no place in the application; ideology, to the extent it has a role in government, is a political matter alone.

No.  We shouldn’t be playing politics with the Supreme Court picks, naïve as that seems.  The best pick for this Justice, and for all nine Justices in their turn, is someone who will uphold the Constitution and hold laws accountable to the Constitution.  That requires a textualist.  Full stop.

 

Unfortunately, any two of those six Senators are enough to kill a nomination.  Or any one of them, since Senator Jeff Flake (R, AZ) has said he’ll block all judicial nominations until he gets his way on wholly unrelated matters.  Trump and Senate Majority Leader Mitch McConnell (R, KY) have their work cut out for them.  This is not a slam-dunk matter.

An Ego Move

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…by a flake.  Senator Jeff Flake (D R, AZ) says he’s going to block any and all judicial nominees until he gets his way.

Myself and a number of senators, at least a few of us, will stand up and say let’s not move any more judges until we get a vote, for example, on tariffs[.]

This is just another ego move by a flake Senator.  Were Jeff Flake serious about this, he would have moved before he rendered himself a lame duck Senator; there were plenty of questions on which he could have done this sort of thing besides tariffs.  He chose to wait, though, until there would be no consequences for his ego trip.

Now he’s ready to destroy the judiciary, to let it get populated by a later administration with activist judges and Justices for whom the law and the Constitution are mere suggestions, to be disregarded when they become inconvenient to those activists’ personal agendas.

Ransomware and Government Entities

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The Wall Street Journal, in an article about ransomware being used to hack city (and other) computer systems, asked the question Should Cities Pay?

Not only no, cities (and others) should not pay, but no2.

Aside from paying the ransom being an act of cowardice, it aids and abets the criminals—which is amoral, if not yet a felony.

Sure, it costs more in the moment to refuse and rebuild, but what costs are saved by not telling the hacker world that the city will gladly pay the ransom and so be hacked repeatedly?  What’s the cost to other, similarly situated, cities and towns (and public libraries) when one gladly aids and abets?

What’s the excuse, today, with ransomware so well known, for cities not hardening their systems against this hack (and other hacks) before the hack occurs?

Privacy!?

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You ain’t got no privacy.  You don’t need any stinking privacy!

Using facial recognition software in combination with image storage houses like drivers license databases can be highly useful in tracking down criminal suspects.

But the combination can be highly dangerous, too, as this attitude by Joseph Michael, Washington County Deputy State’s Attorney in Maryland, demonstrates:

the expectation of privacy ends when you sit down and smile at the government desk.

Pinellas County (FL) Sheriff Bob Gualtieri argued

This is no different than if I laid out all those photos in front of me…and said “No, that doesn’t look like him, that doesn’t look like him, here we go, that’s him[.]”  The only thing is I am doing it in a different way, a more automated way, a more efficient way.

Sometimes that faster, more automated—human-removed—way is less efficient, though, as it removes thought and care and consideration of individual liberty from the process, favoring as it does getting a conviction over getting a just outcome.

Michael’s attitude illustrates the conundrum.  His attitude, the attitude of a Government Man, is precisely why we have a Bill of Rights in our Constitution.  His attitude is just an extension of “If you’ve got nothing to hide, you should let Government snoop if it wants to.”  Folks like Gualtieri can be better trained.  Folks like Michael are unfit for office in a free country.

Reform at the FBI?

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FBI Director Christopher Wray said he takes the DoJ IG report castigating the FBI’s performance on the Clinton email scandal seriously.

He [Wray] ordered training for senior executives on the report’s lessons….

Really? These guys are senior executives–they already knew what they were doing, and they knew at the time that what they were doing was wrong. They should be fired for cause.

So far, it looks like Wray is just engaged in the emptiness of sound and fury.