By Preet Bharara
This week’s note is a bit of a call for research, a survey of sorts. I have been talking in this space and elsewhere lately about the nature of good faith argument and about the poison of bad faith argument. There is much to debate in this country, as there has ever been, but there seems to be less meeting of the minds even over the terms of disagreement that at any time prior. People increasingly talk past each other or don’t talk to each other at all. When they do, it is often toxic invective or sneering dismissal. Persuasion seems a quaint concept of late. Given the vitriol, what passes for modern-day debate and discourse should perhaps be re-coined as “discoarse.”
Part of this sorry state of affairs, to my mind, arises from a stubborn rigidity of thinking and a self-assuredness in the rightness of one’s own positions to the exclusion of contrary facts and narratives. There is, to be sure, such an explosion of bad faith, of performative BS, that it can be tempting or even natural to dismiss the whole lot of those who disagree with you as Satanic sophists whose every point is to be immediately rejected out of hand. Also, where the stakes are so high, especially in national politics or with respect to existential threats like climate change, there is a temptation to cudgel rather than convince. The world is burning, we think, and there is no time to trifle with mild-mannered talk. There is a nation to rescue, after all. There is a world to save.
But I still hope for improved discourse on all issues, naïve as that hope may be. In time, I still believe, the force of the better argument wins favor. Some principles of discourse recur when I talk to Stay Tuned guests and others about these issues. One principle is this: honestly present the actual argument of your adversary when you are rebutting it. This bars cherry-picking, exaggerating, distorting, and deliberately misunderstanding the argument being made. It also takes off the table ad hominems and whataboutism and straw men. When you meet the actual arguments being made, you begin hopefully to engage the ear of the adversary, rather than just the emotions of your allies. When the adversary is wrong overall but makes a decent and good faith argument that can nonetheless be countered, I think it’s best to acknowledge the point, even concede it if necessary. As I wrote in my book, smart lawyers do this in courtrooms all over the country every day. It earns credibility, which is the single greatest asset to persuasion. It also allows you to hone your own arguments, reshape and perfect them.
On the other side of the coin, the best advocates – no matter their level of passion – avoid bad faith arguments and cheap shots, even though they may inspire and intoxicate the choir to which they are preaching. Inserting one bad faith ad hominem when the bulk of evidence and logic is on your side corrupts your enterprise and, most importantly, tends to turn off the ranks of undecided you presumably hope to bring over to your side.
So, in this vein, I ask for your reflection and input. As I sort through what I think of my own positions and the most effective and fair ways to argue for them, I have been asking myself (and some guests) two questions:
- Can you identify and acknowledge a good faith argument made by people in favor of a policy or idea that you strongly denounce?
- Can you identify and acknowledge a bad faith argument made by people in favor of a policy that you strongly support?
I’d like to hear your answers to either or both of these questions, and I hope to revisit the point here in the coming weeks. Please let me know if I can use the examples you provide, without identification. Your answers can cover any issue – they can be about Trump, taxes, trade, abortion, the minimum wage, vaccines, guns, police reform, climate, Afghanistan, or anything else under the sun. Also, I wonder if you find the exercise helpful, frustrating, or counter-productive. Send your comments to email@example.com.
Corruption in the Federal Judiciary?
By Sam Ozer-Staton
Last week, a bombshell Wall Street Journal investigative report revealed that more than 130 federal judges have violated U.S. law and judicial ethics by overseeing court cases involving companies in which they or their family owned stock. The Journal found that since 2010, judges have collectively failed to recuse themselves from 685 court cases. Judges’ stockholdings exceeded $15,000 in 173 cases and $50,000 in 21 of those cases.
The report comes at a time when the judiciary is going through a crisis of public confidence. Increasingly, federal judges — from the Supreme Court to the District Court level — are seen not as objective arbiters of the law but as agents of a particular political agenda. In 2018, when Judge Jon S. Tigar of the District Court for Northern California issued an injunction blocking President Trump’s asylum policy, Trump attacked the judge, calling him a biased “Obama judge.” That prompted Supreme Court Chief Justice John Roberts to release an unusual statement defending the independence of the federal judiciary. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
The Journal’s report delivers another blow to the integrity of the judiciary. But while much has been made of the recent increase in partisan behavior among federal judges, much less focus has been given to the kind of quintessential financial corruption (or at least the appearance of it) that the report exposes. And it begs the question: What consequences should judges face if they hear cases involving companies in which they own stock?
The federal judiciary hasn’t always had clear-cut ethics rules. The law that requires judges to recuse themselves in instances of potential financial conflict of interest, like many rules that dictate government ethics, comes out of the post-Watergate era. In 1974, four months after President Nixon’s resignation, President Ford signed a law requiring judges to disqualify themselves from any court proceeding in which: “He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
A few years later, as part of the Ethics in Government Act of 1978, Congress required that judges file financial disclosure statements, providing a way for government watchdogs to actually make sure that judges were following the law.
Still, the 1974 law, which provides no penalties for violations, has often been ignored. Federal judges have lifetime appointments and can be removed from the bench only through impeachment. Creating additional structures of punishment for judges, some argue, could further erode the independence of the judiciary.
“I know of no public discipline of a judge for failure to recuse,” Stephen Gillers, a legal ethics expert at New York University School of Law, told the Wall Street Journal. “But there is rarely public discipline of federal judges for anything.”
Are you surprised by the Journal’s findings? Should there be more explicit discipline for federal judges who violate ethics rules?
Write to us with your reactions at firstname.lastname@example.org.
— Listen to Stay Tuned, “Elections Truths & Lies,” where Preet interviews Chris Krebs, the former Director of the Cybersecurity and Infrastructure Security Agency, who was fired by former President Trump after calling the 2020 election the “most secure in U.S. history.” And don’t miss the bonus for Insiders, where Krebs answers a series of lightning round questions.
— Listen to Up Against The Mob, “Mob Mentality.” Elie speaks with Maria Konnikova, a psychologist who studies the widespread public fascination with mafia figures and the enduring allure of anti-heroes. Don’t miss the bonus for Insiders, where Elie and former Third Degree co-host Safeena Mecklai go behind the scenes of the episode.
— Listen to Now & Then, “Government Debt Roulette,” where Heather and Joanne discuss cycles of in-fighting, tension and collapse in American political parties. Don’t miss the “Backstage” segment for Insiders, where Heather and Joanne discuss the role of politics in their historical awakenings and their shared passion for democratic governance.
— Listen to CAFE Insider, “Irreparable Harm: Abortion, Insurrection, and the Kitchen Sink.” Preet and Joyce discuss the latest developments regarding reproductive rights, including the Department of Justice’s emergency request to block Texas’s restrictive abortion law, and the forthcoming Supreme Court case where the state of Mississippi has asked the Court to overturn Roe v. Wade.
Walt Mossberg is, along with Kara Swisher, the co-founder of Recode and The Verge. While he’s retired from writing his column (and from hosting the Code Conference), he remains one of the most respected voices on the tech landscape. Follow him @waltmossberg.
That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at email@example.com with your thoughts, suggestions, and questions.
— Edited by Tamara Sepper
The CAFE Team:
Tamara Sepper, Adam Waller, Sam Ozer-Staton, Jake Kaplan, David Kurlander, Noa Azulai, David Tatasciore, Matthew Billy, Nat Weiner, and Namita Shah.