Fighting Mendacity in Politics: The Role of America’s Lawyers

Fighting Mendacity in Politics: The Role of America’s Lawyers
Preview of a paper by Heidi Li Feldman, to be presented at Resurrecting Truth in American Law and Public Discourse: Shall These Bones Live?, Duquesne University School of Law, November 16-17, 2017.

American lawyers know much about truthfulness and untruthfulness. Their education schools them in these subjects, and virtually every area of legal practice involves understanding them. American lawyers must learn the nuances, forms, and mechanisms of mendacity because so much law prohibits lying, fraud, deceit, misrepresentation, and more. Lawyers must counsel their clients regarding requirements of honesty, accuracy, informativeness, and disclosure. Lawyers themselves have professional obligations of candor, particularly towards tribunals.

Their professional status and their familiarity and skill with truthfulness and untruthfulness bestow obligations on American lawyers in the current political climate. Social media is rife with misdirection and disinformation; the sitting U.S. President is a known serial dissembler; high ranking officials deny basic science; government departments hide and remove information from their websites. Mendacity, evasion, deceit in aid of power are everywhere in evidence.

Under these conditions, American lawyers should identify, expose, and explain untruthfulness. They should force truthfulness from politicians, elected and appointed officials, commentators, pundits and activists. In short, America’s lawyers should act as advocates for truthfulness in political discourse. My arguments for the special role of lawyers will not rely on strong metaphysical or ontological claims about truth, values, or law. With a mundane approach to truth, I will explore the role of truthfulness in subverting ideology and in grounding dissent from power. Via examples, I will demonstrate how lawyers’ knowledge and skills can especially aid in these efforts.

Lawyers are to the current onslaught of political mendacity what physicians are to public health emergencies. Responsible, democratically accountable governance is impossible without great measures of truthfulness. While all citizens should, therefore, strive for and demand truthfulness in politics, American lawyers, trained in the rule of law in the American constitutional system, owe that system their care and attention, marshalling their expertise in the cause of truthfulness in politics.

Fighting Mendacity in Politics: The Role of America’s Lawyers

When Supreme Court Justices May Have to Disqualify Themselves from Hearing a Case


Today, the Daily Beast published a short story about Ginni Thomas, Justice Clarence Thomas’s wife, writing to a listserve to request assistance setting up a tool for “daily text capacity for a ground up-grassroots army for pro-Trump daily actions.” According to her message, she “met with a house load” of  “grassroots activists … who wish to join the fray on social media for Trump and link shields and build momentum….[w]e want a daily textable tool to start…” Ms. Thomas’s model, according to her email is Daily Action, covered by the Washington Post here. Below is the background to the brief remarks I made in the Daily Beast story.

Judicial recusal or disqualification as it is more aptly called is a sensitive topic. Judges are people in the world, they have friends and family and hobbies and interests, all of which can inform how they view cases that come before them. This is as true of Supreme Court Justices as any other judges. Judges’ spouses are entitled to have political views, to express them, to be politically active, and/or to hold elected or appointed office. A judge’s spouse may certainly create and deploy an app to support specific Executive branch orders and actions. But if one of those orders or actions becomes the subject of litigation, a legitimate question arises about whether the judge can decide the lawfulness or constitutionality of that order or action without an “appearance of impropriety” if not actual partiality.

U.S. federal law requires that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As explained by experts from the Federal Judicial Center:

Section 455(a) requires disqualification for the appearance of partiality (i.e., when a judge’s “impartiality might reasonably be questioned”) as compared to § 455(b)(1), which requires disqualification for actual partiality (i.e., when a judge “has a personal bias or prejudice toward a party”).

So, if a reasonable ordinary citizen might think reasonably think that a judge cannot be impartial in a particular case, the judge should disqualify himself or herself.

While a Supreme Court Justice may disqualify himself or herself on his or her own motion (sua sponte, in legal parlance), more usually a party to a lawsuit makes such a motion. This happened in Cheney v. United States District Court, where Justice Antonin Scalia chose not to recuse himself on grounds that his social outings with Vice-President Cheney did not create even an appearance of partiality and on the grounds that it would be improvident to reduce the court to an even number of justices in the case because of the possibility of a tied decision. Note, Justice Scalia did not complain that the request that he recuse himself was frivolous or ungrounded. Indeed, he took it seriously enough to explain his reasons for denying it.

If any of the cases contesting the lawfulness or Constitutionality of specific executive orders or conduct of Donald Trump come before the Supreme Court, and a spouse of a Justice is mobilizing a grass roots army in favor of that specific order or conduct, a reasonable citizen might well reasonably think that the Justice cannot decide the case impartially. Furthermore, if the court consists of eight members, the need to avoid the possibility of a tie would militate in favor of an otherwise warranted recusal.

Nobody can make a Supreme Court Justice disqualify himself or herself from participating in any given case. And a Justice and his or her spouse might decide that the spouse should feel free to help grass roots armies opposing the left and supporting the President even if that would later ethically require the Justice to disqualify himself or herself in a particular case. But in an era where the President of the United States continually attacks the legitimacy of the judiciary, all parties to the judicial process should be aware of prevailing ethics laws and standards, and seek to meet and exceed them.



When Supreme Court Justices May Have to Disqualify Themselves from Hearing a Case