Tag Archives: ethics

Judicial Insubordination

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Elizabeth Price Foley and Mark Pinkert are on the right track. They’ve laid out the problem concisely in their Thursday Wall Street Journal op-ed:

Now some lower-court judges have become brazenly defiant, not only of the administration’s agenda but also of high court opinions. In response, the justices have had to remind lower courts of their constitutional role and chastise them for resisting court precedent. But the resistance continues, threatening to erode the judiciary’s ability to function.

And

An anonymous group of 12 lower-court judges took their grievances to NBC News, telling a reporter that the high court’s rulings are “validating the Trump administration’s criticisms” of lower courts. One said “it’s inexcusable” that the justices don’t “have our backs.” Four judges opined that the justices, especially Chief Justice John Roberts, “should do more to defend the courts,” in the reporter’s words. Another judge complained that he and his colleagues have been “thrown under the bus.” But even an Obama appointee admitted that “the whole ‘Trump derangement syndrome’ is a real issue” and that lower-court judges “are sometimes forgetting to stay in their lane.”

They then propose a solution:

They should avoid writing opinions that contain obvious ambiguities like the one in Fair Admissions. They should also clear away the underbrush of nonoriginalist constitutional law, overruling such precedents rather than narrowing, distinguishing or calling them into doubt. … And all the hullabaloo over the president’s authority to fire executive-branch officers would be quieted if the court flatly overruled Humphrey’s Executor v US rather than merely chip away at it.
The court has a duty to provide doctrinal clarity, especially on constitutional law.

Those certainly are good ideas, at least from this textualist’s perspective. Clarity in bold, declarative sentences written in exclusively plain terms, would good, whether textualist or activist. More is needed though.

The Supreme Court needs lay aside its hesitancy and swat down, firmly, recalcitrant judges, especially (but not only) those of the district courts. The Supreme Court, over the course of its admonishment-containing overrulings, need to remove the recalcitrant judge from the case altogether, an action the Court has done, but up to now all too rarely. The Court also needs, rarely but at a non-zero rate, to rule that a particularly insubordinate judge will have all of his rulings automatically stayed until reviewed by appellate courts, including the Supreme Court, if necessary.

These are drastic steps, to be sure, but they’re necessary to emphasize that Supreme Court rulings are binding on the lower courts, especially at the district level; to increase the efficiency and speed of the courts and especially of the appellate process; and to begin to restore the public’s confidence in our court system.

Conflagration of Norms

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As President Donald Trump’s (R) Executive Branch nominations languish in the Senate (300 of them), Republicans there are considering changing the rules to speed the nomination confirmation/rejection process. As The Wall Street Journal puts it in its lede,

…Democrats will call it President Trump’s latest conflagration of norms.

This would be, of course, typical of the Progressive-Democratic Party politicians’ hypocrisy. Senate norms have already been burned to ashes in the conflagration of Party’s unprecedented obstruction of nearly all things President (read Trump) and nearly all things Republican. But especially all things (not just nearly all) regarding the President’s nominations and Party’s knee-jerk, universal attempts to block and its successes in slowest-walking the confirmation process. Progressive-Democrats are actively stalling even minor nominees who won bipartisan support in committee, just in petty protest of Trump policy (Party politicians claim it’s over his firing of Party-favored Executive Branch appointees, but their obstruction is much broader than that).

Changing the rules in the way Republicans are proposing—limited time to debate each nomination, allowing nominations to be considered in batches, with each batch subject to that same limited debate time—are sorely needed, and the change would benefit all Presidents, not just Trump.

The folks a President nominates and wants confirmed are intended to be members of the President’s team. Party politicians, though, are with their actions demanding confirmees be members of Party’s team, regardless of which party is in power from administration to administration.

Corporate Cybersecurity Training

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It isn’t very effective, apparently.

To measure the effectiveness of different methods of cybersecurity training, the authors [of a study] divided employees into four groups. After each attack, each group received a different training method: one received generic tips about avoiding phishing attacks, a second received an interactive Q&A on cybersecurity, a third was informed about the specific methods used in the most recent attack, and the fourth received an interactive Q&A that also included details about the most recent attack. A fifth group was also created, and the employees in that group received no training.
The authors found that on average, employees who received training of any sort had only a 1.7% lower failure rate than employees who had no training.

The authors’ solution?

The study’s takeaway for organizations, says [lead author Grant] Ho, is to rely on measures other than training, like phishing-detection software that automatically eliminates the need for employees to detect phishing attacks.

Software aids are important in this milieu, but the weak link remains the human. Software aids by themselves are insufficient.

There needs to be more to the training than just a slide presentation and some lectures, or in the present case, “interactive” Q&As. The training sessions need to be plussed up, a lot, but that can’t be the end of it. Schools and responsible companies run fire drills that run to completion with evacuation of the building and head counts and roll calls while the evacuees are gathered up at their assigned evacuation points. So it must be with cybersecurity training. Simulated cyber attacks (phishing, social engineering, etc) attacks should be run against a rotating collection of employees to test their training and their responses to the attacks. Those simulations should be run some weeks after the training and more frequently than those fire drills, and they should not use IT-ginned up attacks, either; they should use serious real-world attacks, altered only to get them targeted to the collection of employees being tested.

Beyond that, there needs to be teeth attached to the training and to employees’ failure to take the training seriously.

There are three outcomes from this. One is an empirical assessment of the quality of training, its durability, and identification of weaknesses in the training program, which then can be corrected (not given up on). A second results from those teeth: once management is satisfied with the training quality, employees still falling for the attacks should be terminated. They’re too great a risk to the company.

The third outcome is a very great increase in the cyber safety of the company and of its employees (with a follow-on: those employees will be better able to maintain security in their homes’ cyber environment). The added training and testing will incur costs to the company, but the risk of the far greater cost of a cyber breach—both direct and indirect through liability—is too great to ignore.

Willful Ignorance

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Or preferring her Newspeak Dictionary definitions over those in actual American English dictionaries.

That’s Arizona Progressive-Democrat Representative Yassamin Ansari’s view. In response to the hue and cry over her terming illegal aliens members of her constituency, she had this:

So, I didn’t realize this was such a controversy until the right-wing media started attacking me for using the word, so I Googled the word constituent. The definition of constituent is somebody who is part of a community, doesn’t matter what their legal status is,

She Googled for the definition of “constituent.” She could have consulted an actual dictionary of the American English language, but she chose not to. ‘Course, if she had, she would have seen her narrative collapse around her. This is what Merriam-Webster, for instance, has to say about the American English meaning of the term:

constituent
1 : a member of a constituency
pledged to help her elderly constituents

Following that first and thus primary definition over to constituency, we get this first and primary definition:

constituency
1 a : a body of citizens entitled to elect a representative (as to a legislative or executive position)
the governor’s liberal constituency

Citizens. Not illegal aliens. Even the second part of that first definition lends no support for Ansari’s Newspeak definition:

b : the residents in an electoral district
The senator’s constituency includes a large minority population.

Since illegal aliens are not legally resident, they are outside even the residents of an electoral district.

Inconvenient facts are, to a Party member, inconvenient.

Tipped Wages or Not?

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McDonald’s is insisting that every restaurant—especially fast food restaurants—should be required to do away with tip-based wages and pay servers at least the Federal-level minimum wage. There are a couple of major disingenuosities in the surrounding argument.

McDonald’s Chief Executive Chris Kempczinski:

Right now, there’s an uneven playing field,

because casual-dining restaurants, bars, and other establishments to pay below the typical minimum wage to tip-earning workers. If he thinks so, he should push for getting his restaurant able to similarly pay his workers rather than demanding that others kowtow to his business model.

Kempczinski went on:

If you are a restaurant that allows tips or has tips as part of your equation, you’re essentially getting the customer to pay for your labor[.]

This is an especially blatant bit of disingenuousness. The customer already is paying for the restaurant’s labor. The customer also is paying for the restaurant’s cooking, food and food preparation inputs, rent, management salaries, every cost the restaurant incurs. Those costs are included in the prices the restaurant puts on its menu. Tipping is just a customer-facing line item on the bill.

This is nothing but a regulated business manager venally and self-servingly trying to capture the regulators and impose added costs on his smaller and weaker competitors.