For more information, see: Gallup, May 20 — Related Newsline story, June 1.

by Rushworth M. Kidder

The Senate Judiciary Committee shortly will begin its confirmation hearings on Sonia Sotomayor, president Barack Obama’s first nominee for the U.S. Supreme Court. But will it ask the central question?

That question isn’t about her experience on the bench. It’s not about her allegiance to her Catholic roots or her tilt toward the underrepresented. It’s not about her penchant for crafting prose that is exacting and deliberate rather than sweeping and quotable. It’s not even about identity politics — the way her race and gender might influence her decision making.

Important as these are, the key question is about her ethical mindset. Not “her ethics”: There’s nothing to suggest anything here but the highest personal integrity. This question is deeper: What conditions must prevail for Judge Sotomayor to say, “Yes, ethics has been done”?

The question goes to the heart of what Supreme Court justices need these days. New technologies spin off ethical questions at warp speed, in everything from cyberwarfare to neuroenchancers. As these issues come to judgment, the court will find itself addressing entirely new regions of moral concern.

Even more important, the court finds itself at the crossroads of a public discourse that is increasingly polarized, strident, and dismissive. It will find itself rendering opinions in the face of a popular culture that tends to reduce every issue to an absolute, I’m-right-you’re-wrong, good-versus-bad dichotomy (as, for instance, in the increasingly harsh debate over the Sotomayor nomination). In response, the court will need to remind a perhaps surprised public that it hardly ever sits in judgment on matters of right versus wrong. Instead, its task is almost always to resolve right-versus-right dilemmas, where each side has noble and potent moral arguments on its side.

Which is where the question of Judge Sotomayor’s ethical mindset comes in. Facing some of the most intractable issues of our day, she’ll be asked to choose between two right sides on:

• Immigration. How should we treat illegal aliens? Since so many have been allowed to stay for so long, building lives and forming communities, it’s right to include them — and especially their children — in the social services network. But since by definition they are “illegal,” it’s right to invoke the law and send them home.
• Economic justice. What ought we to do about those who lost livelihoods or mortgages in this recession due to the recklessness of others? It’s right to help victims back toward stability. But it’s also right to make the reckless take responsibility for their own financial decisions.
• Gay marriage. How do we respond to this movement? There are powerful arguments for recognizing the rights of same-sex couples to enter into a relationship that affords the legal protections necessary to ensure the welfare of their families. But there also are powerful arguments for allowing churches not to recognize such unions if they contradict their belief systems.

What ethical principles will Judge Sotomayor bring to bear on these questions? Will she speak from an ends-based, utilitarian perspective, always paying attention to consequences and seeking the greatest good for the greatest number? If so, we might expect her to side with the first set of arguments in the above bullets — being sensitive to policy outcomes that can impose real hardship on aliens, the unemployed, and gay Americans.

Or will she speak from a rule-based, Kantian perspective, always advocating the precept she thinks should become a universal standard? If so, she’ll probably side with the second set of arguments, paying more attention to the need for overarching, universal principles concerning legality, economic responsibility, and maintaining the traditional definition of marriage than to the immediate impact of her rulings on affected individuals.

Either way, Judge Sotomayor will find herself in a tough ethical position. By nature, judiciaries are rule-based, seeking to create the precedents — the universal principles — that endure over time and set standards for everyone. Legislatures, however, are ends-based, looking for ways to accomplish the most benefit for the largest number of stakeholders. Her background, and her self-assessment of the role that race and gender play in her decision making, align her with the latter. As such, she readily can play the role of the good utilitarian, for whom ethics gets done by focusing on specific consequences in each case. But her role as a judge, especially in the highest court of the land, will set her up to be the good Kantian, for whom ethics gets done by putting aside short-term, case-specific outcomes in favor of long-term universals.

Moving toward the former, she’ll be accused of behaving more like a policymaker than a judge and “legislating from the bench.” Moving toward the latter, she’ll be accused by the very constituencies she so long has defended. How she strikes this balance will depend on what, case by case, she sees as the ethical imperative.

©2009 Institute for Global Ethics

Questions or comments? Write to newsline@globalethics.org.

A reader comments on Rushworth Kidder’s column last week, which examined the moral outrage springing from the disclosure that British politicians have been charging lavish housing expenses to the taxpayer:

The moats, trouser presses and manure — you missed the $3,000 duck house — are all great knock-about comedy, but the question is not, as you suggest, whether Parliament being distracted by these small scandals caused Standard & Poor’s to downgrade the U.K.’s credit rating. Rather it is: If MPs hadn’t been so accustomed to a completely legal — the laws being of their own making — system of expense claims and tax dodges, would they have noticed sooner that the economic boom they were busy claiming credit for was actually built on fraud and thin air? Would they have noticed and spoken out against bankers’ obscene salaries and bonuses if they hadn’t been busy organising their own, admittedly slightly smaller, ones? …For Labour MPs, elected to further the cause of the poorest people in the land, to grab public money with both hands in this way, is truly shocking. Whether it is ethics or opportunism that is shaping the — rather late — reactions of the party leaders remains to be seen.

– Judith Martin
Winchester, Hampshire, United Kingdom

“No one wants to have their future criticized as a place filled with unethical behaviors. We want to learn from those mistakes, do things differently and accept our duty to lead responsibly. Realistically, we have tremendous potential to affect society for better or worse. Let’s humbly step up. We are looking out for our own interest, but also for the interest of our employees and the broader public.”

– Max Anderson, one of the organizers behind a new student pledge for Harvard’s M.B.A. candidates. Anderson, who is graduating, is one of “about 160 from a graduating class of about 800 who have signed ‘The M.B.A. Oath,’” reports the New York Times. The article covers efforts at Harvard, Columbia, and Wharton to inculcate a sense of ethics within the next generation of business executives.

Source: New York Times, May 29.

Ethics issues expected to be prominent in Supreme Court confirmation process; expenses scandal has devastated the popularity of major parties in Britain; ethics are on front burner in Tennessee and Illinois, two states still reeling from bribery scandals; nonprofit group posts ethics agreements and financial disclosure forms from Obama nominees

VARIOUS DATELINES
Several top world-press stories focused on ethics angles last week. Among the coverage:

• The Supreme Court nomination of Judge Sonia Sotomayor likely will involve scrutiny of her views on several hot-button ethics issues, reports National Public Radio. Included in the list is the turmoil surrounding a remark she made in a 2001 speech in which she said a “wise Latina woman” would in some cases reach a “better conclusion” than a while male, a statement that prompted immediate criticism implying that she is a racist, according to the NPR report. CNN notes that the White House late last week said that Sotomayor’s “word choice in 2001 was poor,” but President Obama defended his nominee, saying “I’m sure she would have restated it, but if you look at the entire sweep of the essay she wrote, what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through that will make her a good judge.”
• Britain’s “expenses scandal” has had a devastating impact on public support for the Labour Party, reports the Times of London. A row over members of Parliament billing taxpayers for all sorts of expenses, some viewed as outrageously lavish, has engulfed not only Labour, but all of the major political parties. As Parliamentary elections approach, minority parties, including the Greens and the British National Party, have made striking advances in the polls, reports the Times.
• There’s more ethical turmoil in Tennessee, a state rocked by a federal bribery sting in 2005 that convicted nine state and local officials and a lobbyist. Last week, the head of the Tennessee Ethics Commission, an agency formed in response to the scandal, was fired. Bruce Androphy was placed on administrative leave and will be terminated on August 10, according to the Nashville Tennessean. Androphy’s tenure as director has been tense, marked by complaints from lawmakers that the commission’s decisions were slow or confusing and that the commission has been too confrontational. Recently appointed commissioners who oversee Androphy joined to vote for his ouster. Androphy would not say whether he thought lawmakers had influenced the new commissioners in their decision to fire him, according to the Tennessean.
• The Illinois General Assembly is debating new ethics rules that are designed to end the state’s reputation for “pay to play” politics, reports USA Today. Reeling from the scandal involving disgraced governor Rod Blagojevich, Illinois lawmakers are considering a variety of measures that would impose an open-records law, new provisions to allow voters to recall public officials, and limits on campaign donations.
• Nonprofit journalism organization ProPublica has gathered financial disclosure statements and ethics pledges from hundreds of nominees to the Obama executive team. ProPublica said it has posted and gathered the online documents in order to help hold the Obama administration accountable for its early pledge to boost transparency and public accountability.

Sources: Times of London, May 30 — NPR, May 29 — CNN, May 29 — USA Today, May 29 — Nashville Tennessean, May 19.

For more information, see: Related Newsline story, May 25 — Related Newsline story, Apr. 27 — Related Newsline story, Nov. 3, 2008 — Related Newsline Commentary, Apr. 28, 2008 — Related Newsline story, July 10, 2006 — ProPublica page for Obama administration ethics agreements, May 26.

New developments in the case of boy whose parents refused his chemotherapy on religious grounds; cultivated green monkeys show promise for a type of genetic research, but stir ethics protest; new brain implant used to treat behavior disorders has some comparing it to lobotomies; adults appear to be following students’ lead and turning to drugs like Ritalin to boost performance

VARIOUS DATELINES
Moral issues were at the forefront of several major medical and scientific stories last week. Among them:

• The case of Daniel Hauser, the child whose mother absconded with him to avoid court-ordered chemotherapy for the boy’s cancer, took another turn last week. The Atlanta Journal-Constitution reports that Hauser’s parents agreed to the court-ordered chemo after the judge allowed them to use alternative treatments in conjunction with the standard medical protocol. Hauser’s family belongs to a religious group that rejects traditional medicine. According to the paper, the court also returned custody to the mother, who brought the boy back home after an arrest warrant was issued. Hauser’s cancer, according to medical experts interviewed for the piece, has a 90 percent cure rate if treated with chemo and radiation, but is almost invariably fatal if untreated.
• Scientists are confronting an ethical dilemma centering on green monkeys, the BBC reports. Researchers have modified the primates to not only glow a strikingly iridescent green but also pass the trait to their offspring. While the research is purported to be promising because it shows that genetic cures could be introduced in one generation and passed along to another, some are protesting the experiment on moral grounds, saying such tests on sentient beings are cruel and abusive, notest the BBC.
• A new technique called deep brain stimulation has shown success in treating certain movement disorders, such as Parkinson’s disease. But now that the use of the treatment, which involves a stimulation device that works like a pacemaker for the brain, is being applied to behavioral disorders, it is raising a variety of moral concerns. The Los Angeles Times quotes Dr. Helen Mayberg, a professor of psychiatry and neurology at Emory University, as comparing the sudden popularity of the procedure with the spate of lobotomies performed in the 1940s, saying there is little follow-up and scanty proof that the procedures worked.
• The Christian Science Monitor reports that the general adult population is turning to a category of drugs that youngsters have known about for years — brain stimulants like Ritalin. Ritalin and its ilk have been used to treat attention deficit disorder, but have also spilled into wider use in schools and colleges — illegally, in many cases — by students seeking to boost performance while studying and taking tests. Now, reports the Monitor, the general adult population may be following suit “to boost productivity and enhance their mental prowess on the job.” The paper notes that while some experts support the shift, saying “it’s time to consider making the stimulants legal for brain-boosting functions,” critics disagree. “In an era when people take everything from Viagra to enhance their romance to steroids to enhance their baseball statistics, they argue that the addition of so-called ‘cognitive enhancement’ drugs will only make us more dependent on the pill bottle…. Ultimately, it raises the most fundamental questions about identity and what it means to be human: Are we the sum of our experiences or the sum of our pills?”

Sources: Los Angeles Times, June 1 — Los Angeles Times, June 1 — Atlanta Journal-Constitution, May 29 — Christian Science Monitor, May 29 — BBC, May 27.

For more information, see: Related Newsline story, May 25 — Related Newsline story, Dec. 15, 2008 — Related Newsline Commentary, Aug. 28, 2008.

U.S. Justice Dept. ratchets up bribery prosecutions; SEC wants to sharpen enforcement on its own employees; Dallas Morning News writer looks at the connection between bad economic times and bad ethics

VARIOUS DATELINES
Last week’s business news spent time examining the ethics angles in a range of stories. Among the coverage:

• The U.S. Justice Department is ramping up prosecution of alleged acts of foreign bribery by U.S. corporations, reports the Reuters news agency. Citing a report from the Wall Street Journal, Reuters says that about 120 companies currently are under investigation, up from 100 at the end of last year. Prosecutions are spiking in the wake of a corporate-reform movement stirred up by Enron-type scandals earlier in the decade, according to the reports.
• Stock trading by employees of the U.S. Securities and Exchange Commission (SEC) will be monitored more closely, reports the Washington Post. Stepped-up enforcement comes after a probe by the SEC’s inspector general found that some of the agency’s enforcement lawyers may have traded stocks in companies when the SEC opened investigations into those firms. SEC chair Mary Schapiro says it “makes sense that we have a world-class compliance program — just as we expect from those we regulate.”
• Dallas Morning News business writer Sheryl Jean last week examined whether Texas, hit hard by the recession, is experiencing a corollary decline in business ethics during the tough economic times. Jean notes that complaints against real estate brokers have increased, though it is unclear if the spike reflects increasingly unethical behavior or buyers’ and sellers’ frustration during the market collapse. George Roe, a University of Illinois business ethics professor interviewed for the story, contends that stress over job security and performance does indeed induce some people to stretch their ethics. “As things have gotten very difficult for companies, that translates to things becoming very difficult for people in those companies,” Roe told the paper. “The next question is: Do desperate people do desperate things? The answer is yes, they do.”

Sources: Reuters, May 27 — Washington Post, May 23 — Dallas Morning News, May 30.

For more information, see: Related Newsline story, May 11 — Related Newsline story, July 28, 2008 — Related Newsline story, Oct. 15, 2007.

Divorce, gambling, and embryonic stem cell research make gains; abortion appears to be losing support

NEW YORK
An annual poll of moral values finds that most of the U.S. public continues to view divorce, gambling, and embryonic stem cell research as acceptable, while abortion, cloning, and extramarital affairs remain unacceptable.

Congressional Quarterly reports that the percentage of the public that considers divorce acceptable dropped from 70 percent in May 2008 to 62 percent when the poll was conducted earlier this month.

UPI reports that the Gallup poll also found that the majority of Americans find the death penalty, premarital sex, and medical experimentation on animals to be morally acceptable.

Other issues seen by more people as morally acceptable than as unacceptable, according to the Gallup poll: wearing animal fur, having a baby outside of marriage, and gay or lesbian relations.

Abortion was viewed as morally wrong by a majority of Americans. And while recent data from a number of polls suggests that more Americans can be classified as “pro-life” rather than “pro-choice,” MSNBC notes that a new poll nevertheless finds that 69 percent of U.S. respondents do not want the Supreme Court to overturn Roe v. Wade.

Sources: Congressional Quarterly, May 20 — UPI, May 20 — MSNBC, May 19.

For more information, see: Related Newsline story, Apr. 13 — Related Newsline story, Mar. 16 — Related Newsline story, Feb. 16 — Related Newsline story, Dec. 15, 2008 — Related Newsline story, Nov. 24, 2008 — CNN/Opinion Research Roe v. Wade poll, May 15 — Gallup Pro-Life, Pro-Choice Poll, May 15 — Gallup, May 20.

Media ethics are focus of a range of reports

NEW YORK and OTTAWA
Media ethics generated a range of headlines last week. Among the top stories:

• The online encyclopedia Wikipedia last week barred the Church of Scientology from editing content on the user-driven site. BusinessWeek reports that the Wikipedia Arbitration Committee, a group of volunteers who review activities related to controversial articles, said the banned users violated the encyclopedia’s “neutral point of view” requirement. The ban, which is not permanent, is applied to the Internet Protocol (IP) addresses of several computers linked to the Church of Scientology, reports BusinessWeek. Barring some members of the public from writing or editing articles is not a new phenomenon, according to the report. Wikipedia has banned some IP addresses from major companies when it was alleged that those users had plugged their own brands or products or trashed competitors.
• There is something of a backlash against images of magazine cover models that have been manipulated with photo software to the point where they not only push an idealized standard of beauty but “defy the natural boundaries of human anatomy,” in the words of a report from last week’s New York Times. At the heart of the issue are recent photos that were manipulated to make female models appear thinner and male models more muscular than they really are. In France, the Times notes, health officials concerned about anorexia are campaigning for a measure to compel magazines to cite which images have been altered and how.
• A Canadian broadcast standards agency last week ruled that the CTV network acted unethically when it broadcast outtakes of then-Liberal leader Stephane Dion, who did not understand an awkwardly worded question and gave several halting responses, the CanWest News Service reported. The outtakes were broadcast even though CTV promised not to use them. Opposing politicians seized on the stumbles and used them to portray Dion as incapable of governing. CTV is now required to announce the council decision twice in the same time period in which the original outtakes were broadcast. CTV told CanWest it is “disappointed” in the ruling.

Sources: BusinessWeek, May 30 — New York Times, May 30 — CanWest News Service, May 30.

For more information, see: Related Newsline story, Apr. 13 — Related Newsline story, May 16, 2008 — Related Newsline story, Dec. 12, 2005.

Was Paul Bergrin doing his job by releasing name of informant, or dooming a witness?

NEWARK, N.J.
A case in which a lawyer is charged with using threats, bribes, and even murder to keep witnesses from testifying against his clients shines a spotlight on the complex ethical and legal balancing act facing defense attorneys, according to a report from the Associated Press.

New Jersey attorney Paul Bergrin is charged with murder, with prosecutors alleging he passed along the name of an informant to associates of his client, a defendant in a drug case, according to the AP. The informant was later found murdered.

Bergrin’s attorney, high-profile lawyer Gerald Shargel, who once defended mobster John Gotti, tells the AP that Bergrin’s actions were within ethical boundaries.

“The defense lawyer’s obligation is to put the government’s case in the ‘worst possible light,’” Shargel said, citing former Supreme Court justice Byron White’s dissenting opinion in a 1967 case. “How do you do that? You talk to people with knowledge, and perhaps you talk to other criminals. If a lawyer learns, or a client suggests, that a particular person is a witness in a case, then that lawyer is duty bound to gather as much information about the witness to try and discredit that witness.”

Prosecutors say they have tapes in which Bergrin tells someone to kill a potential witness. Bergrin’s attorney says the tape excerpts released by the government were snipped out of context and give a one-sided and misleading view of the conversation, according to the AP report.

Source: AP, May 30.

For more information, see: Related Newsline story, Jan. 22, 2008 — Related Newsline story, Sep. 10, 2008 — Related Newsline story, July 30, 2008 — Related Newsline story, Jul 2, 2007.

Signatories include heads of BASF, Fuji Xerox, General Electric, Novartis, and Royal Dutch Shell

From Transparency International:

“In an unprecedented move, chief executives from some of the world’s leading companies have called on governments to more effectively and robustly implement the United Nations Convention against Corruption.

“In a letter to UN Secretary-General Ban Ki-moon, the CEOs threw their support behind the world’s only universal anti-corruption instrument, stating that it ‘holds the promise of curbing corruption and creates a level playing field for all participants in the global economy’. They praised the Convention, describing it as ‘an essential instrument in the fight against corruption’, but they underlined the need for the establishment of an implementation review mechanism….

“‘Especially now, in a period of deep financial and economic turmoil, an effective implementation review mechanism is essential. The economic crisis will inevitably place severe strains on worldwide competition, threatening an erosion of ethical standards that will be hard to reverse,’ they warned….

“The CEOs provided ideas on how the mechanism should work….

“‘I deeply appreciate the leadership demonstrated by the corporate community in this critical matter,’ said UN Secretary-General Ban Ki-moon, in response to the letter by the CEOs. ‘The business advocacy for an effective review mechanism and the growing number of States adopting and implementing the Convention are evidence of a shared commitment to tackle corruption.’…

“The United Nations Convention against Corruption, adopted in December 2003, has been signed by 140 countries and ratified by 136 to date.”

For the full press release from Transparency International, May 7, click here.

“I am only one; but I am still one. I cannot do everything, but still I can do something. I will not refuse to do the something I can do.”

– Helen Keller (U.S. author, political activist, lecturer, and advocate for the deaf and blind, 1880-1968)