Tuesday, December 13, 2005

Re: Lies, More Lies And The Moral Equivalent Of Lies

December 13, 2005

Re: Lies, More Lies And The Moral Equivalent Of Lies.
From: Dean Lawrence R. Velvel

Dear Colleagues:

For various reasons this posting will be the last one on this blog in 2005. So, given this writer’s view that dishonesty is the major problem of America, it is perhaps fitting to end 2005 with some further discussion of the issue.

As said here many times, dishonesty and its enabler, secrecy, lead to incompetence and disaster because they cause people to form views and take actions on the basis of false conceptions. For world shaking confirmation of this point one need consider only three words: Viet Nam (yes, Viet Nam, spelled properly, is two words, not one) and Iraq. We got into the Viet Nam War because of falsehoods about attacks in the Tonkin Gulf -- and only in the last few weeks have even further, recently discovered falsehoods about them, falsehoods by the NSA, been publicly disclosed, a delay that apparently is partly attributable to fears of comparisons with the governmental deceptions regarding Iraq. We got into Iraq by a whole string of falsehoods too recent and familiar to need repetition.

There are many who say that in both cases, and especially Iraq, the people who perpetrated the falsehoods did not exactly lie, for two reasons. There was, to begin with, some evidence, even if inadequate evidence, for their position (e.g., purported evidence that Saddam had links to Al Qaeda or sought weapons of mass destruction). Also, however stupidly, they believed what they said (e.g., Cheney really did think Saddam was tied to Al Qaeda).

No matter. To me it is all lies or, very importantly, the moral equivalent of lies. When you very much want something to be believed or done, when you therefore deliberately seize on inadequate evidence to persuade people to it, when you present the evidence as if it were (unchallengeable) gospel without explaining its shortcomings or possibly erroneous character, when you do this and deliberately ignore all the facts and intellectual points on the other side of the matter so that people with far more limited or no access to them will not learn of them, what you are doing is the moral equivalent of outright lying. By the quite proper standard of moral equivalency, we have a government of liars and, indeed, a country filled with liars in every walk of life.

The politicians and the news media like to call it "spin." To me it is the same as outright lies.

These days, moreover, it is amazing but true (no lie) that outright lying, or its moral equivalent, have even reached the point where high mucky mucks will lie (or spin?) even when their listeners or readers know they are not telling the truth. Take, for example, Condoleezza Rice, a woman whom I believe, contrary to conventional wisdom, is not very intelligent and has even less creativity, and whose main qualification for high office is that she is what might be called a Georgian suck-up. Rice has been going around Europe saying that America does not engage in torture. Is there anyone who believes her line of bovine defecation? America does not commit torture? Yeah, right. Tell it to the marines, as we used to say about fifty years ago. Everyone knows she is lying, but lying has become such a habit for American officials that she goes ahead and says it anyway.

One even gets the sense that, because it apparently has become somewhat common for our officials to even fool themselves by credulously accepting any bovine defecation, however false, that supports their position, Rice may even believe the lies she is spouting. After all, her hero, George, says we don’t torture. Also, "clever" administration lawyers -- who were rewarded by federal judgeships and prestigious professorships but who should instead be drummed out of the profession and sent to jail because they, acting just like the German judges did, have found purported reasons why torture is not torture, why waterboarding, hanging people by their arms and the like are not torture -- have opined that what Americans are doing is lawful rather than being forbidden torture.

But whatever she does or does not believe, in my view Rice’s comments were either lies or their moral equivalent. And, without meaning to be cynical about it but only truthful, let me say that her bovine defecation is precisely what we can expect from someone who runs around -- as a news report has made clear -- accompanied by some hack flack P.R. guy who is looking every minute to make her appear glorious and wonderful and heroic in photo ops and other P.R. modes. There is an entire class of people in this culture - - from presidents to movie and TV stars, to corporate presidents, to you name it -- to whom image is everything and reality is little or nothing. This pervasive image-mongering phenomenon, for which we can thank John Kennedy in politics and television everywhere, and which is sometimes called sizzle rather than steak, makes bovine defecation for public consumption the order of the day, while truth, competence and true accomplishment sit at the back of the bus or aren’t even on it. One cannot expect a participant like Condoleezza Rice to tell the truth any more than one should expect another participant, George Bush, to tell the truth.

In connection with the moral equivalency of lying, let us now turn briefly to the Alito matter. It has, of course, become commonplace for nominees to say whatever they hope will fly in support of their own nominations, regardless of the truth of their assertions. So it was that John Roberts said he did not really mean what he wrote in the 1980's, but wrote it only because he worked for right wing politicians -- in other words, he in effect claimed that he did not share the right wingers’ views, but wrote what he did merely to curry their favor. Gimme a break. He meant the terrible things he wrote, everyone knew he meant them, and if he didn’t mean them, but wrote them merely to curry favor, he was a disgrace. A current liar or a prior disgrace, take your pick.

The same is true with Alito. He says he made reactionary statements in 1985 not because he meant what he said, but only because he was seeking higher positions in the Reagan Administration. Well, given his history when younger, nobody in their right mind is likely to believe he didn’t mean what he said in 1985, and if he didn’t mean it, then, as would be true of Roberts as well under his claim, Alito was a careerist willing to say anything, no matter how awful, in order to get ahead.

One notes that The Times took out after the Alitoist "logic" in an editorial of December 3rd. It said Alito "was ‘particularly proud,’ he wrote [in 1985], of his work as a lawyer on cases arguing ‘that the Constitution does not protect a right to an abortion.’ Judge Alito has tried to explain away that fairly unambiguous statement by saying he was simply an advocate seeking a job. That immediately raised questions about his credibility. Had he misrepresented his views to get a job? Is he misrepresenting them now to get an even more important one?" In other words, was Alito lying then, or is he lying now? And if he was lying then, he is plainly a careerist instead of only a liar.

(One cannot know why The Times so boldly stated the truth about Alito in its editorial. But one suspects it is part of an overall effort to expiate guilt for the newspaper’s major role in causing the public to believe the Bushian bovine defecation that led to the invasion of Iraq, a role the paper played by presenting lies and spin as if they were unchallengeable truth and by itself not challenging the bushwa. Today one is seeing "retortive" pieces, debunking Administration lies, literally alongside the news stories presenting those lies and spin, and one is seeing constant references, when anonymous governmental (and other) sources are quoted or cited, to the reason(s) why those sources insist on anonymity (the sources are not authorized to discuss the matter, the information is classified, etc.). That Alito’s baloney was not allowed to get away unremarked seems to be of a piece. But, regardless of The Times' refusal to let Alito get away with bushwa, it remains to be seen whether the Senate Judiciary Committee will refuse to let Alito get away with the same kind of bovine defecation that The Times exploded on November 23rd and that the Committee permitted Roberts to get away with extensively, instead of pressing Alito quite concretely and quite specifically with sharp, short, pointed questions of the type suggested and illustrated here in a post of November 4, 2005.

The Alito matter should not be allowed to pass without noting comments made by one of his colleagues on the Third Circuit, Edward Becker. Federal judges like to try to fool the rest of us by claiming that they are merely following "the law." (One suspects that, as is almost always true of people defending their own righteousness, the people the judges are fooling the most are themselves. This is not too different from Administration officials when you think about it.) In a related vein, Becker commented to The Times on Alito’s 1985 statements. Here is what The Times then wrote:

But a colleague of Judge Alito, Judge Edward R. Becker of the Third Circuit, who is also a close friend of Mr. Specter, said Friday that the memorandum did not reflect Judge Alito’s approach on the bench, which he said was to look "at every case anew with an open mind."

"It is not the Sam Alito I know," Judge Becker said. "People don’t understand what happens to you when you become a judge. When you take that oath, you are transformed. You are a different person. You have a solemn obligation to be totally impartial and fair."

Now, I know and respect people who themselves know and respect Becker. So I’m not going to say Becker is lying. But he plainly is deluded. Anybody who is realistic knows that judges don’t lose their own fundamental values when they go on the bench. To very roughly paraphrase a point made by Alan Dershowitz on TV recently, you are not going to find a political liberal who suddenly becomes a political conservative on the bench or vice versa. To be sure, some -- but certainly not all, maybe not even a majority of -- federal judges may feel constrained to operate within parameters that prevent them from writing their political views into the law in the usual case, but even such judges take the opportunity where they find it. Others feel far freer to do so -- does anyone think that the views that Rehnquist, Scalia, and Thomas did or would write into the law were not a reflection of their deep conservatism? Does anyone think that the views that Bill Douglas and Bill Brennan wrote into the law were not a product of their liberalism? In all such cases, gimme a break.

Becker is deluded. He is in fact self deluded, as shown by our law school’s own experience. Our school is dedicated to aiding the small person, and people from the working class, but the pertinent rules of the American Bar Association look in quite the opposite direction. I have described here before, in a blog of November 28, 2005 (and it has been described more fully in books and articles cited in that blog), how a trial judge in Philadelphia bigotedly ruled in favor of the ABA and against our law school on virtually every point and issue in a case where the ABA was so clearly violating the antitrust laws and injuring our school that it settled with the Department of Justice’s Antitrust Division on the very day that the Division filed a case that mirrored ours -- didn’t just echo it, mirrored it. The ABA did not dare let the matter attain the terrible and widespread publicity -- not to mention the adverse verdict -- that would have arisen with regard to its illegal methods and techniques had the Division’s case proceeded onward to trial. So the ABA entered an immediate settlement, called a "consent judgment." Yet in a fit of prejudiced bigotry in favor of the ABA, which was and is the establishment in the legal profession, and against a small progressive upstart that dared to challenge the ABA, the trial judge in MSL’s case, J. William Ditter, ruled virtually every relevant ABA claim meritorious no matter how specious, ruled virtually every relevant MSL claim specious no matter how meritorious, viciously attacked prestigious lawyers representing MSL (one of whom is now himself a federal judge) as well as MSL’s Dean (this writer), and claimed there was nothing at all wrong with a horrendous conflict of interest that he himself had. Then, in every relevant particular, his totally bigoted decisions were upheld by what is called a "three judge panel" of the Third Circuit Court of Appeals, in a decision which itself represented the same bigoted pro-ABA, anti-small-progressive-upstart favoritism, as well as bigoted favoritism in support of a federal trial judge when he is challenged by a small non-establishment upstart. The Third Circuit’s decision was so farcical that I’ve been told (but cannot verify) that some lawyers who have had to read it when working on later antitrust cases of one type or another simply laughed to scorn its transparent favoritism and error.

And who was one of the judges who was on the three judge panel of the Third Circuit that displayed bigoted favoritism towards the ABA, towards the establishment, and against a small school that did not agree with the anti-small-person, anti-working class views of the establishment ABA? Well, none other than Ed Becker, the judge who now tells us, in support of Sam Alito, "‘People don’t understand what happens to you when you become a judge. When you take that oath, you are transformed. You are a different person. You have a solemn obligation to be totally impartial and fair.’"

Well, even if Ed Becker is self deluded, lots of us do understand what does or doesn’t happen to someone who becomes a federal judge. Apart from the quantum leap in egotisticalness that often (usually?) occurs, absolutely nothing happens. One’s values and fundamental beliefs do not get checked at the door. Some judges write their beliefs into law to a greater extent, and some to a lesser extent. But future events -- future history, as it were -- is likely to show that anyone who presently thinks that Sam Alito, if confirmed, will not write his beliefs into law to either a greater or lesser extent has another think coming. Making a claim to the contrary strikes me as just another moral equivalent of dishonesty put forward in an effort to fool people who really ought to know better.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

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