One of the problems with appointing prominent members of a presidential administration to the Supreme Court is the issue that if litigation connected with a piece of legislation or executive order that official had a hand in crafting should subsequently occur, he (or she) might find it necessary to recuse himself from participation in the case.

Recusal is not an optional choice. 28 U.S.C. § 455 specifically states:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ...

Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.

Supreme Court Associate Justice Elena Kagan has denied being involved in preparations for court defense of Obamacare while she was serving as Solicitor General, and declined to recuse herself from the Supreme Court decision of April 2011 refusing to “fast-track” for review Virginia’s lawsuit challenging Obamacare.

Judicial Watch sued under the Freedom of Information Act and has obtained documents suggesting that Justice Kagan may have a serious problem here.

According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG [Solicitor General’s] office was consulted?...

Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.

For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.

The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.

Judicial Watch describes itself as conducting an ongoing investigation of the matter.

The documents obtained so far fail to produce absolute “smoking gun” proof that Kagan violated the law in failing to recuse herself, but all the evidence of collaboration over accounts is extremely suggestive.

Ace aptly observes:

Just a crazy question here—has anyone said “We’ve got to get our stories straight” when everyone involved was planning on telling the truth?

Are “coordinated” stories generally more credible than uncoordinated, unscripted ones? I guess the Obama White House thinks so.

“Coordination”

It’s a hip, smart way to say “lying.”

Yesterday’s New York Times reported that Sonia Sotomayor defends her membership in a females-only influence-sharing club as non-violative of Canon 2 of the Code of Conduct for US Judges, which reads:

A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

I am a member of the Belizean Grove, a private organization of female professionals from the profit, nonprofit and social sectors,” Judge Sotomayor wrote. “The organization does not invidiously discriminate on the basis of sex. Men are involved in its activities — they participate in trips, host events and speak at functions — but to the best of my knowledge, a man has never asked to be considered for membership.”

She added: “It is also my understanding that all interested individuals are duly considered by the membership committee. For these reasons, I do not believe that my membership in the Belizean Grove violates the Code of Judicial Conduct.

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Personally, I disagree with Canon 2, and think judges and everyone else should enjoy freedom of voluntary association, but Judge Sotomayor I expect would be one of the first to insist on strict enforcement of that politically correct standard on everyone but herself.

Is she right in maintaining that the Belizean Grove, a club with 115 female members, is non-discriminatory on the basis of sex?

Here is the club’s own description, you decide.

The Belizean Grove is a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.”

Having observed the power of the Bohemian Grove, a 130-year-old, elite old boys’ network of former Presidents, businessmen, military, musicians, academics, and non-profit leaders, and realizing that women didn’t have a similar organization, Susan Stautberg and 26 other founding members created the Belizean Grove, a constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.

Members are highly accomplished leaders in a wide venue of fields, are dedicated to giving back to their communities, have a sense of humor and excitement about life and are willing to mentor and share connections. With this vision in mind, members are invited not only for their professional accomplishments but also for their generosity and compatibility.

The Grove is an international nurturing network that helps women pursue more significant dreams, ambitions, purposes, transcendence, and spiritual fulfillment, while also opening up more leadership opportunities to these women of diverse backgrounds, talents, ages, and skills. The Grovers are leaders from 5 continents, from profit, non-profit and social sectors. They are heads of major government agencies, businesswomen, military officers, academics, non-profit leaders, musicians, authors, diplomats, design gurus.

Sotomayor resigned from the Belizean Grove yesterday, stating that she did not want her membership in the exclusuve female-only club to “distract anyone from my qualifications and record.”

Some news agency story.

Barack Obama’s strongest asset (beyond his smooth mellifluous announcer’s voice) is the authority he derives from being careful to speak always in an earnest and moderate manner while occupying the moral high ground. Obama was elected largely because he successfully persuaded a majority of Americans that he was trustworthy and responsible, that he possessed moral authority.

Obama’s moralism, like Obama’s moderation, unfortunately, is simply a long-practiced ruse. He discovered as an adolescent dealing with his grandmother that he could get his way, or get out of trouble as necessary, by talking softly and sounding mature and responsible. White people, he wrote in his autobiography, were simply delighted, and became infinitely pliable, when they encountered a nice, respectable young black man who talked softly and carefully avoided scaring them.

Mark Hyman has an article showing that Obama has demonstrated by his actions that his real self is a good deal different from his carefully cultivated public image. The pretend Obama is Olympian, noble, disinterested, kind, and good. The real Obama is the most partisan occupant of the White House in living memory, ruthless, shady, and vindictive.

In the Atlantic, James Fallows recalls an Ethics In America panel discussion on PBS in the 1980s.

First, moderator Charles Ogletree asked a former American officer who had served in Vietnam if he would, in a hypothetical situation in which he could thereby save American lives, if he would forcibly extract the necessary information from a captured prisoner using torture.

The former officer said he would, but other representatives of the US military, including General William Westmoreland, disagreed, and made opposing arguments.

Then Ogletree turned to the two most famous members of the evening’s panel. ... These were two star TV journalists: Peter Jennings, of World News Tonight and ABC, and Mike Wallace, of 60 Minutes and CBS.

Ogletree brought them into the same hypothetical war. He asked Jennings to imagine that he worked for a network that had been in contact with the enemy North Kosanese government. After much pleading Jennings and his news crew got permission from the North Kosanese to enter their country and film behind the lines. ...

But while Jennings and his crew were traveling with a North Kosanese unit… they unexpectedly crossed the trail of a small group of American and South Kosanese soldiers. With Jennings in their midst the Northern soldiers set up an ambush that would let them gun down the Americans and Southerners.

What would Jennings do? Would he tell his cameramen to “Roll tape!” as the North Kosanese opened fire? What would go through his mind as he watched the North Kosanese prepare to fire?

Jennings sat silent for about fifteen seconds. “Well, I guess I wouldn’t,” he finally said. “I am going to tell you now what I am feeling, rather than the hypothesis I drew for myself. If I were with a North Kosanese unit that came upon Americans, I think that I personally would do what I could to warn the Americans.”...

Ogletree turned for reaction to Mike Wallace, who immediately replied. “I think some other reporters would have a different reaction,” he said, obviously referring to himself. “They would regard it simply as another story they were there to cover.” A moment later Wallace said, “I am astonished, really.” He turned toward Jennings and began to lecture him: “You’re a reporter. Granted you’re an American” (at least for purposes of the fictional example; Jennings has actually retained Canadian citizenship). “I’m a little bit at a loss to understand why, because you’re an American, you would not have covered that story.”

Ogletree pushed Wallace. Didn’t Jennings have some higher duty to do something other than just roll film as soldiers from his own country were being shot?

“No,” Wallace said flatly and immediately. “You don’t have a higher duty. No. No. You’re a reporter!”

Jennings backtracked fast. Wallace was right, he said: “I chickened out.” Jennings said that he had “played the hypothetical very hard.”He had lost sight of his journalistic duty to remain detached.

As Jennings said he agreed with Wallace, several soldiers in the room seemed to regard the two of them with horror. Retired Air Force General Brent Scowcroft, who would soon become George Bush’s National Security Advisor, said it was simply wrong to stand and watch as your side was slaughtered. “What’s it worth?” he asked Wallace bitterly. “It’s worth thirty seconds on the evening news, as opposed to saving a platoon.”

After a brief discussion between Wallace and Scowcroft, Ogletree reminded Wallace of Scowcroft’s basic question. What was it worth for the reporter to stand by, looking? Shouldn’t the reporter have said something ?

Wallace gave a disarming grin, shrugged his shoulders, and said, “I don’t know.” He later mentioned extreme circumstances in which he thought journalists should intervene. But at that moment he seemed to be mugging to the crowd with a “Don’t ask me!”expression, and in fact he drew a big laugh—the first such moment in the discussion. Jennings, however, was all business, and was still concerned about the first answer he had given.

“I wish I had made another decision,” Jennings said, as if asking permission to live the past five minutes over again. “I would like to have made his decision”—that is, Wallace’s decision to keep on filming.

A few minutes later Ogletree turned to George M. Connell, a Marine colonel in full uniform. Jaw muscles flexing in anger, with stress on each word, Connell said, “I feel utter contempt.”

Two days after this hypothetical episode, Connell said, Jennings or Wallace might be back with the American forces—and could be wounded by stray fire, as combat journalists often had been before. When that happens, he said, they are “just journalists.” Yet they would expect American soldiers to run out under enemy fire and drag them back, rather than leaving them to bleed to death on the battlefield.

“I’ll do it!” Connell said. “And that is what makes me so contemptuous of them. Marines will die going to get . . . a couple of journalists.” The last words dripped disgust.

Not even Ogletree knew what to say. There was dead silence for several seconds. Then a square-jawed man with neat gray hair and aviator glasses spoke up. It was Newt Gingrich, looking a generation younger and trimmer than he would when he became speaker of the House, in 1995. One thing was clear from this exercise, Gingrich said. “The military has done a vastly better job of systematically thinking through the ethics of behavior in a violent environment than the journalists have.”

Until recent times, for most people, both food and sex were considerably less available than they are today.

In the Hoover Institute’s Policy Review, Mary Eberstadt meditates on the curious way in which, at the present time, the community of fashion has come to place a strongly principled ethical focus on eating, just when old-style sexual morality has been replaced by total latitudinarianism.
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Hat tip to Karen L. Myers.

The mainstream media treated Joe the Plumber having a tax lien as a matter of national interest. But, as Jim Lindgren points out at Volokh Conspiracy, obvious ethics violations by a certain former Illinois state legislator are considered unworthy of attention.

The Illinois Governmental Ethics Act (apparently last changed in 1995) provides:

(5 ILCS 420/2-110)

Sec. 2-110. Honoraria.

(a) No member of the General Assembly shall accept any honorarium.

(b) As used in this Section:

“Honorarium” means a payment of money to a member of the General Assembly for an appearance or speech.

and

But State Senator Obama reported accepting honoraria on his 2000 and 2002 tax returns:

2000: On his 2000 Schedule C-EZ, Barack reported that he received $16,500 as a “Foundation director/Educational speaker.”

2002: On his 2002 Schedule C, Barack reported $34,491 for “LEGAL SERVCES / SPEAKING FEES.”

The London Times reports, 4/26, on another ethical breakthrough in the home of the cuckoo clock.

Under a new Swiss law enshrining rights for animals, dog owners will require a qualification, anglers will take lessons in compassion and horses will go only in twos.

From guinea-pigs to budgerigars, any animal classified as a “social species” will be a victim of abuse if it does not cohabit, or at least have contact, with others of its own kind.

The new regulation stipulates that aquariums for pet fish should not be transparent on all sides and that owners must make sure that the natural cycle of day and night is maintained in terms of light. Goldfish are considered social animals, or Gruppentiere in German.

The creator of this animal Utopia is the Swiss federal parliament, the Bundesrat, which adopted a law this week extending to four legs the kind of rights usually reserved for two. The law, which comes into force from September 1, is particularly strict over dogs: prospective owners will have to pay for and complete a two-part course — a theory section on the needs and wishes of the animal, and a practice section, where students will be instructed in how to walk their dog and react to various situations that might arise during the process. The details of the courses are yet to be fixed, but they are likely to comprise about five theory lessons and at least five sessions “in the field”.

The law extends to unlikely regions of the animal kingdom.

Anglers will also be required to complete a course on catching fish humanely, with the Government citing studies indicating that fish can suffer too.

The regulations will affect farmers, who will no longer be allowed to tether horses, sheep and goats, nor keep pigs and cows in areas with hard floors.

The legislation even mentions the appropriate keeping of rhinoceroses, although it was not clear immediately how many, if any, were being kept as pets in Switzerland.

Also in Switzerland: Rights for Vegetables

Happy new rights-holder in the Helvetic Republic

Wesley J. Smith, in the Weekly Standard, reports on Europe’s latest ethical breakthrough which extends liberal egalitarianism not merely beyond our own species, but beyond our own Kingdom.

You just knew it was coming: At the request of the Swiss government, an ethics panel has weighed in on the “dignity” of plants and opined that the arbitrary killing of flora is morally wrong. This is no hoax. The concept of what could be called “plant rights” is being seriously debated.

A few years ago the Swiss added to their national constitution a provision requiring “account to be taken of the dignity of creation when handling animals, plants and other organisms.” No one knew exactly what it meant, so they asked the Swiss Federal Ethics Committee on Non-Human Biotechnology to figure it out. The resulting report, “The Dignity of Living Beings with Regard to Plants,” is enough to short circuit the brain.

A “clear majority” of the panel adopted what it called a “biocentric” moral view, meaning that “living organisms should be considered morally for their own sake because they are alive.” Thus, the panel determined that we cannot claim “absolute ownership” over plants and, moreover, that “individual plants have an inherent worth.” This means that “we may not use them just as we please, even if the plant community is not in danger, or if our actions do not endanger the species, or if we are not acting arbitrarily.”

The committee offered this illustration: A farmer mows his field (apparently an acceptable action, perhaps because the hay is intended to feed the farmer’s herd—the report doesn’t say). But then, while walking home, he casually “decapitates” some wildflowers with his scythe. The panel decries this act as immoral, though its members can’t agree why. The report states, opaquely:

At this point it remains unclear whether this action is condemned because it expresses a particular moral stance of the farmer toward other organisms or because something bad is being done to the flowers themselves.

What is clear, however, is that Switzerland’s enshrining of “plant dignity” is a symptom of a cultural disease that has infected Western civilization, causing us to lose the ability to think critically and distinguish serious from frivolous ethical concerns. It also reflects the triumph of a radical anthropomorphism that views elements of the natural world as morally equivalent to people.

Why is this happening? Our accelerating rejection of the Judeo-Christian world view, which upholds the unique dignity and moral worth of human beings, is driving us crazy. Once we knocked our species off its pedestal, it was only logical that we would come to see fauna and flora as entitled to rights.

Complete article.

“Carrot Juice is Murder” 4:29 video

From Glenn Reynolds via Bird Dog.

Dafydd ap Hugh has devised an interesting little exercise in ethical theory, which—if nothing else—will give all our liberal friends another opportunity to feel morally superior.

You are a CIA station chief in an undisclosed, secret CIA prison in Poland (with Warsaw’s consent). A prisoner is brought to your location, picked up by the Germans in Afghanistan and transferred to U.S. custody six days ago. We’ll call him Mahmoud.

Mahmoud was not previously known to any intelligence agency before his capture (he was not the main target of the raid). He doesn’t appear to be a big fish. But when he was grabbed, he had a laptop with him, and he was in the process of trying to erase the hard drive. Most of the information is irretrievably gone, a little bit remains; and within that remaining little bit, your techies manage to extract references to a huge attack planned for somewhere on the American mainland. From the timeframe discussed, it appears to be one to three months away. You don’t know anything more than that.

You do not know for sure whether Mahmoud has more detailed information about the attack, but he evidently knew enough to try to erase the drive, even at risk of his own life. He has already been interrogated by the Marines and by CIA personnel where you are, but it’s clear he has more information that he’s holding back. The timeframe is tight enough that you must make a decision immediately, but not so tight that there would be no time to act on any information.

So what you know is this:

A major attack is planned somewhere in the continental United States;

Mahmoud may or may not be a major player, but he appears to know something significant about it;

However, he might not know enough to allow authorities to thwart the attack. But on the other hand, he might;

He would not talk under ordinary interrogation. You might be able to break him given time, but every week that passes makes it less likely his intelligence can be used to stop the attack.

We add one more point:

You already have solid evidence that he participated in some attacks on American troops that resulted in fatalities. So if we want to try him later at a military tribunal, we don’t need a confession to convict him; we already have ample forensic evidence.

You ask the DCI whether you can waterboard him; word comes from the White House via the DCI that you are authorized to waterboard Mahmoud, but you must use your own discretion whether you actually do it: You are the only one close enough to the scene to make that call. You get the impression that the president will stand behind you, whatever you decide… but of course, that only applies to this particular president. You don’t know who will be president in 2009.

So the question is, do you order Mahmoud to be waterboarded?

via Patterico and the News Junkie.

But, are we only allowed to water-board him?

The same New York Times, which on Friday overruled the strenuous arguments of officials of the elected government and proceeded to publish detailed information about a vital program monitoring international transfers of currency;

Administration officials, however, asked The New York Times not to publish this article, saying that disclosure of the Swift program could jeopardize its effectiveness. They also enlisted several current and former officials, both Democrat and Republican, to vouch for its value.

Bill Keller, the newspaper’s executive editor, said: “We have listened closely to the administration’s arguments for withholding this information, and given them the most serious and respectful consideration. We remain convinced that the administration’s extraordinary access to this vast repository of international financial data, however carefully targeted use of it may be, is a matter of public interest.”

the same New York Times, which today divulged details of “closely held secret” plans of possible reductions in US forces in Iraq, supplied by “American officials who agreed to discuss the details only on condition of anonymity;”

this same New York Times devoted a front page article in the Week in Review section to a prolonged meditation on the ethics of dining and the fate of the lobster (and a variety of other critters) destined for the dinner table.

Chin-stroking foodie journalist Michael Pollan got himself a Times magazine article, recyclable for his latest book, by purchasing a steer, and following its career on to feed lot and slaughterhouse. Frank Bruni, author of today’s “It Died For Us” lobster article, shares an anecdote of Mr. Pollan’s intended to allow Sunday Times’ readers to chuckle with a sense of superiority,

After the article appeared, Mr. Pollan received appeals from readers willing to pay large sums of money to buy and save the steer. One reader, he recalled, was a Hollywood producer who wanted to let the animal graze on his lawn in Beverly Hills, Calif.

“He kept coming after me,” Mr. Pollan said, describing a crusade that culminated in an offer of a meal at a famous emporium of porterhouses in Brooklyn. “He finally said, ‘I’m coming to New York, we’re going to have dinner at Peter Luger to discuss this.’ I’m like, ‘Excuse me, we’re going to have a steak dinner to discuss the rescue of this steer?’ How disconnected can we be?”

But we are all reading a newspaper guilty of a lot worse than popping a lobster into the cooking pot, or dining on beefsteak.

How disconnected is the Times?

How disconnected are all of us who buy it and read it, as it carries on its vicious partisan campaign against an elected administration, proceeding even to the point of repeatedly compromising National Security and endangering American lives?

Those of us on the Right often contrast the patriotism of the British and American intelligentsia and media during WWII with the open treason and defeatism which have since become de rigeur fashion accessories for the same classes of society.

The joke is on us. British philosopher A.C Grayling turns the WWII patriotism meme on its head by systematically applying to Allied war policies in WWII the same sort of scrupulous ethicism, combined with Olympian neutrality of personal perspective, today’s treasonous clerks customarily apply to current events.

Allied bombing attacks on enemy civilian population centers (surprise! surprise!) are judged unnecessary and wrong. He’s right, of course, but (though I have not yet received my copy, and therefore not read his book) I doubt very seriously that he has fully addressed the reasons for the adoption by civilized countries of that lamentable war tactic, or done justice to just how far beyond the same kind of standards Germany and Japan by deliberate and conscious policy proceeded.

Mr. Grayling has, undoubtedly, also scanted the attention due to the interesting question of the ethics of publishing a monograph of this kind, addressing these kinds of issues and reaching these conclusions, in time of war, when his countrymen are fighting overseas.

In peace there’s nothing so becomes a man As modest stillness and humility: But when the blast of war blows in our ears, Then imitate the action of the tiger; Stiffen the sinews, summon up the blood, Disguise fair nature with hard-favour’d rage; Then lend the eye a terrible aspect; Let pry through the portage of the head Like the brass cannon; let the brow o’erwhelm it As fearfully as doth a galled rock O’erhang and jutty his confounded base, Swill’d with the wild and wasteful ocean. Now set the teeth and stretch the nostril wide, Hold hard the breath and bend up every spirit To his full height.