One of my favorite pastimes is the criticism of the otherwise eminent Professor Stanley Fish's vacuous article "Is Voting Speech," printed in the New York Times back in 2011. In his attempt to somehow prove that a citizen's vote in a public election is not protected speech or even an opinion, Professor Fish refers to the Supreme Court case of Nevada Ethics Commission v. Carrigan to prove his point. The Court, in upholding the right of the Ethics Commission to stop Commissioner Carrigan from voting on a measure in which he had a conflict of interest, he claims, proved that voting was not "speech." If it were, he argues, then they could not have forced the recusal without violating the First Amendment. Unfortunately, the shifty Scalia was the author of the majority opinion in the case and he took pains to explain the difference between an "institutional" vote and a public vote, the latter vote in which there is no such thing as a "conflict of interest." And, while Scalia sarcastically refers to voting as "a meaningless act that symbolizes nothing," thereby effectively nullifying his own "institutional" vote, he also inadvertently adds something that both conservatives and liberal hypocrites on the Supreme Court often blatantly ignore. "Within 15 years of the founding, both the House and the Senate adopted recusal rules. Federal conflict-of-interest rules applicable to judges also date back to the founding."
The clear distinction between an institutional vote and a public vote aside, one thing becomes abundantly clear, that not only would President Trump have a marked "conflict of interest" in any attempt to introduce an "institutional" pardon for himself, but so too would anyone Trump or his allies choose to appoint as "acting" president before the president elect is sworn in. Worse yet, any Supreme Court Justice that Mr. Trump has admitted or even hinted, was specifically chosen to allow him to pardon himself would have an inherent conflict as well and would have to be recused. Of course, given the history of blatant hypocrisy of both the liberals and conservatives on our Supreme Court, there is no guarantee that members of the august body will vote their conscience. The Court"s record on conflicts-of-interest is pretty sordid at best.
Take the case of Clarence Thomas, not exactly well known for high ethical standards. While he was deciding Supreme Court cases, his wife was busy as a paid lobbyist involving the issues her husband was adjudicating. Justice Thomas did not acknowledge the thousands of dollars that the couple received for her efforts until he was forced to and then he never revealed exactly how much they were paid in money and gifts. Meanwhile, the morally questionable Thomas refused to recuse himself from any of the involved cases. Now, I believe one can understand why our Supreme Soviet, uh... excuse me, "Court" has basically struck down the "Honest Services Statute," but not why Mr. Thomas was not prosecuted earlier under the statute at sometime during the Obama administration under Republican enabler-in-chief, Eric Holder?
Of course, I have included the example of Clarence Thomas in case the Court, in all of its hypocrisy, pretends that it cannot process the situation. Clearly, whether or not Mr. and Mrs. Thomas can be prosecuted is no longer an issue, as the Court has conveniently seen to that. However, by the standards set down by our founders, "originalists" all, according to conservatives on the Supreme Soviet, I mean "Court," the Thomases should have to return their ill gotten gains, should they not? I mean, despite passage of a state constitutional amendment to the contrary, other criminals here in Florida who have served their sentences must pay back every cent they owe to their victims plus often onerous court fees before they can vote. So shouldn't "Justice" Thomas be required to return the illicit money and gifts that he and his wife received before he is allowed to vote in the institution called the "Supreme Court?"
Al Finkelstein, 11/12 /20