The Supreme Court’s Health-Care Stock Problem

I've noted before the problems with Supreme Court justices who view themselves as exempt from the ethics and conflict of interest rules applied to the federal judiciary. Typically, among the most blatant offenders are Clarence Thomas and Antonin Scalia who consort with far right conservatives and, in the case of Thomas, receives significant family income from his wife's far right activities. But it's not always the conservatives who raise eyebrows. Now, with the health care law before the Court, a piece in The Daily Beast looks at the lack of clear rules applicable to the Court's justices. Here are some highlights:

Federal judges who own more than $25 of company stock are required to recuse themselves if a case comes before them that involves the company in question. If they fail to do so, they can be charged with a felony. But what about the Supreme Court? And more specifically, what about the current case involving health care? Should Supreme Court justices who own stock in health-care and pharmaceutical companies recuse themselves?

In the past, Supreme Court justices have removed themselves from certain cases. . . .

But they are not required to do so. It is left to the discretion of the individual Supreme Court justice to decide whether a financial conflict exists.

No member of the Supreme Court has stepped aside in the health-care reform case currently before them, even though two of the justices apparently own far more than $25 in health-care-company stock. By far the biggest owner of health-care stock is Justice Stephen Breyer.

Justice Samuel Alito also owns shares in health-care stock, holding up to $45,000 in Bristol-Myers Squibb.

Did Breyer and his family sell their shares in health-care companies before oral arguments on the Obamacare case began this week?Last year, Breyer sold his stock in Nestle so he could participate in a case involving that company. The Supreme Court Public Information Office is not saying whether a similar move was made in this case.

Does any of this matter? . . . . The reason the restriction [on other federal judges] requiring recusal was instituted in the first place was to remove any doubt that financial factors were at play.

But the larger question is, shouldn’t Supreme Court Justices put their assets in a blind trust? They are not required to. . . . . They make their own judgments about whether a conflict of interest exists.

This is a tradition in the Supreme Court. But it’s time to change it. Just as the growth of scope in government made congressional insider trading a real problem that warranted legislative reform, so too the growing scope of the court, and its ability to shape the stock valuations of companies warrants greater reform. Why not require Supreme Court justices to put their assets in a blind trust? Or at the very least to put their assets in mutual funds, not individual stocks?

Michaelle Bachmann - Is She Using House Money to Fund Tea Party Events

The ultra-far right elements of the Christian Right and their puppets in the GOP always like to act holier than thou and accuse others of not playing by the rules while in reality it is they themselves who are all too typically breaking the rules and violating the law. It seems GOP loon Michelle Bachmann is a case in point. It seems based on a Roll Call story that Bachmann was using House of Representative funds to underwrite Tea Party functions - something that is against the law. And like corrupt Supreme Court Justice Clarence Thomas, it sounds like Bachmann has deliberately failed to account for some of her activities. It would be nice if the House of Representatives would call Bachmann on the carpet, but given that it is controlled by the GOP, I'm not going to be holding my breath. Here are highlights from the Roll Call story:
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On Nov. 5, 2009, at the behest of Rep. Michele Bachmann, thousands of tea party activists descended on the Capitol to vent their rage over the health care overhaul bill pending before Congress. The assembled activists chanted, "Kill the bill! Kill the bill!" and waved signs opposing a government takeover of health care — but they may not have known that the same government was paying for the event.
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According to House expense reports, Bachmann and three conservative GOP colleagues — Reps. Tom Price (Ga.), Steve King (Iowa) and Todd Akin (Mo.) — each paid $3,407.50 that day, a total of $13,630, to a sound and stage company called National Events, apparently for the sound system used at the rally.

The money came from the Members' taxpayer-funded office accounts, despite House rules prohibiting the use of these funds for political activities.
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Bachmann billed the event as a "press conference," which can be funded from official accounts. But no questions were taken from the press and, unlike most press conferences, it opened with a prayer, the national anthem and a recitation of the Pledge of Allegiance.
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The ethics watchdog group Citizens for Responsibility and Ethics in Washington filed a complaint with the Office of Congressional Ethics at the time, claiming Bachmann had violated a clearer directive from the House Administration Committee that Member websites "may not include grassroots lobbying or solicit support for a Member's position."
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Bachmann's office accounts show other trips outside her district that do not correlate with public appearances, but after June 2009, the House stopped disclosing the destination of office-funded travel, so it is impossible to know where Bachmann has gone on the taxpayer dime since then.
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Special rights and special rules are what the far right and GOP seize for themselves while claiming it is others who are playing foul. Hypocrite is too nice of a term for these folks.

King & Spaulding and Legal Ethics vs. Morality

I've been admitted to practice law in three states for over thirty years and the self-inflicted controversy that has engulfed King & Spaulding after its short lived representation of the House Republicans in defending DOMA underscores to me yet again the fact that much of what is "ethical" under the rules of the legal profession is not what I consider equal to what is morally right. Frankly, I do not handle criminal law matters for the simple reason that in some circumstances I could not represent someone I believed to be guilt - especially in violent crimes such as murder or say rape. Yet it's "ethical" for attorneys to represent such defendants and to endeavor to get them the best deal possible, perhaps even putting the victims on trial in the process. Is it morally right? Then there are gay bashing divorce attorneys who seek to destroy the gay spouse and prejudice the court against the gay litigant so as to get the maximum for their client. Many deem it ethical, but is it moral? In my view, it is not. The same goes for defending a law that has as it only real purpose the stigmatizing and denigration of a group of citizens because they fail to conform to the toxic Christianist version of Christianity. HRC and others have been lambasted for pressuring King & Spaulding to withdraw from defending DOMA. I believe that HRC did the right thing - and often all too critical of HRC as long time readers know. Kerry Eleveld has a post at America Blog Gay that looks at the controversy. Here are some highlights:
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The firm took an immediate hit from most legal observers who viewed dropping the case as tantamount to legal blasphemy. LGBT advocacy groups, ours included, found themselves playing defense after being criticized for blasting the law firm for taking the case. And House Republicans suffered a two-fer: First for the hypocrisy of retaining an outside law firm for $520 an hour (up to $500,000) while they preach fiscal discipline; then enduring the embarrassment of watching that firm breach the contract likely due to the backlash of defending a discriminatory law that many, including President Barack Obama, deem unconstitutional.
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Untangling the rights and wrongs in this situation is impossibly confounding, and reasonable people can and have disagreed to be sure. But let’s start where most legal eagles concur: King & Spalding did not have to accept the case, and DOMA, which is notably a law and not a person, does not have a right to representation.
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And here already, comes a point of divergence. Monroe Freedman, a leading legal ethics scholar and professor at Hofstra Law School, believes that both the firm and Clement came down on the wrong side of morality when they accepted the case.
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Outside of certain criminal proceedings, Freedman says, “There’s absolutely no doubt that a lawyer has complete discretion to take or not to take any particular client. For that reason, it’s my view that, that decision -- whether to take a client -- is the most important point of moral decision making for the lawyer.
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“And therefore, in my view, it was immoral for Clement and for King & Spalding to agree to defend DOMA. That is my personal moral judgment,” Freedman says, adding, “others would disagree. But I feel very strongly that defending DOMA is itself an immoral act.
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However, having agreed to represent their client, Freedman adds, “It was at that point unethical for them to pull out. I’m not talking about immoral – it may have been the moral thing to do – but ethically speaking, it was wrong to embarrass the client that way publicly.” Clement, a former U.S. solicitor general under President George W. Bush, resigned from King & Spalding over his firm’s decision to drop the case.
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I believe it would have been a mistake for advocates to forfeit the opportunity to make known their views about King & Spalding’s representation. Letting the moment pass without objection would have been a missed opportunity to send a political message, and advocates shouldn’t be expected to approach the legal system the way a lawyer would. We quite simply have different interests at stake – theirs is to preserve the sanctity of the legal system, and ours is to advance the cause of freedom for lesbian, gay, bisexual, and transgender Americans.
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[I]t’s particularly problematic for the government to contractually restrict the First Amendment rights of every employee -- from the person working in the mail room all the way to the lead counsel of the case.
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If there’s one truth that can be gleaned from the DOMA fallout this week, it’s that judging the tenor of issues related to the fair and equal treatment of LGBT Americans is a particularly precarious endeavor at the moment. Though no one has established the exact the reasoning behind King & Spalding’s 180, many believe they simply underestimated the backlash of taking the case.
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“There is speculation -- and it’s where I would put my money if I had to -- that they were surprised to find that one or more of their major clients disapproved of them taking on this retainer,” says Freedman, referring to clients such as General Electric and Coke.
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I will always try to error on the side of what is moral versus what is "ethical" in terms of legal ethics. I want to be able to look at myself in the mirror in the morning. For far too many attorneys, in my view, that is never a factor.

Former Aide's Leaked Manuscript Trashes Sarah Palin

I find Sarah Palin to be an insult to one's intelligence. She's unqualified to be dog catcher in a small village much less to run for any national office. Add to that the fact that she's a pathological liar and a self-absorbed shrew and you pretty much get the image of Palin found in Frank Bailey's leaked manuscript. Bailey was one of Palin's aides from her time as half-term governor of Alaska. The book that hopefully grows out of the manuscript ought to be required reading amongst the Kool-Aid drinking GOP base, but I suspect it will be described as "all lies" by Palin's ignorant by choice followers. Oh, and did I mention that Bailey says Palin violated election laws? The Anchorage Daily News has details on the tell all manuscript that shows the true, unvarnished and ugly Palin. Here are some highlights:
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The manuscript opens with an account of Palin sending Bailey a message saying "I hate this damn job" shortly before she resigned as Alaska's governor in July 2009, less than three years into her four-year term. The manuscript goes on for nearly 500 pages, a mixture of analysis, gossip and allegation.
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Bailey, a political insider who joined Palin's 2006 campaign for governor and became part of her inner circle, has never before told his version of the Palin story. Bailey has consistently refused requests for interviews and did so again Friday. The book was co-written with California author Ken Morris and Jeanne Devon of Anchorage, who publishes the popular anti-Palin website Mudflats.
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Bailey wrote in the book that he and his co-authors put together the manuscript with the help of more than 60,000 e-mails he sent or received while working for Palin.
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[I]n Bailey's telling, the reality was nasty. Minor slights became obsessions, according to Bailey, demanding revenge and if possible, destruction of the opponent's reputation. "We set our sights and went after opponents in coordinated attacks, utilizing what we called "Fox News surrogates," friendly blogs, ghost-written op-eds, media opinion polls (that we often rigged), letters to editors, and carefully edited speeches," Bailey wrote.
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One chapter asserts Palin broke election law by coordinating with the Republican Governors Association during her 2006 campaign for governor. State candidates can't team up with soft-money groups such as the Republican Governors Association, which paid for TV commercials and mailers in Alaska during the election in a purported "independent" effort.
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Palin is a menace and needs to be returned to the political wilderness - the sooner the better for America.

Hillary's Not So Wonderful Experience

Playing dirty in politics can sometimes backfire. Hillary ought to know this, but perhaps not. She tries to depict herself as the more experienced candidate and also as a feminist champion, yet she has stooped pretty low at times and not always acted as I suspect most women would applaud – particularly in the case described in this article (http://www.newsday.com/news/nationworld/ny-usark245589997feb24,0,2670956.story?page=1). I for one hope this story gets some wide spread circulation. While it is true that “ethically” under the rules of the Arkansas State Bar she probably did nothing wrong, whether it was morally right is another matter entirely. Suffice it to say, the Bar’s rules of ethics do not always parallel what, in my opinion, is morally right. When that occurs, an attorney always has the option of not taking the case if they feel that they cannot in good conscience represent the client properly. That Hillary would do this to a 6th grade girl for a $250.00 fee is rather telling. I find it disgusting - I would have NOT taken the case. Here are some story highlights:

Hillary Rodham Clinton often invokes her "35 years of experience making change" on the campaign trail, recounting her work in the 1970s on behalf of battered and neglected children and impoverished legal-aid clients.But there is a little-known episode Clinton doesn't mention in her standard campaign speech in which those two principles collided. In 1975, a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas - using her child development background to help the defendant.

Rodham, records show, questioned the sixth grader's honesty and claimed she had made false accusations in the past. She implied that the girl often fantasized and sought out "older men" like Taylor, according to a July 1975 affidavit signed "Hillary D. Rodham" in compact cursive.

Seen as an aggressive defense Rodham, legal and child welfare experts say, did nothing unethical by attacking the child's credibility - although they consider her defense of Taylor to be aggressive."She was vigorously advocating for her client. What she did was appropriate," said Andrew Schepard, director of Hofstra Law School's Center for Children, Families and the Law. "He was lucky to have her as a lawyer ... In terms of what's good for the little girl? It would have been hell on the victim. But that wasn't Hillary's problem." The victim, now 46, told Newsday that she was raped by Taylor, denied that she wanted any relationship with him and blamed him for contributing to three decades of severe depression and other personal problems.

"It's not true, I never sought out older men - I was raped," the woman said in an interview in the fall. Newsday is withholding her name as the victim of a sex crime.With all the anguish she'd felt over the case in the years since, there was one thing she never realized - that the lawyer for the man she reviles was none other than Hillary Rodham Clinton.

[T]he record shows that Rodham was also intent on questioning the girl's credibility. That line of defense crystallized in a July 28, 1975, affidavit requesting the girl undergo a psychiatric examination at the university's clinic."I have been informed that the complainant is emotionally unstable with a tendency to seek out older men and to engage in fantasizing," wrote Rodham, without referring to the source of that allegation. "I have also been informed that she has in the past made false accusations about persons, claiming they had attacked her body."Dale Gibson, the investigator, doesn't recall seeing evidence that the girl had fabricated previous attacks. Rodham was paid a $250 retainer for her services, minus 10 percent for court costs, records show.