Honor, Loyalty, and the Summum Bonum

In February 2002, in the aftermath of the scandals committed by the executives of Enron, Andersen and other companies, BusinessWeek printed a brief letter to the editor in which I argued that those who had the most to benefit from the function of markets should have the interest and honesty to protect the markets’ integrity.

When I composed the letter, I had in mind the proposition of moral philosophers that human actions ought to be guided by some sense of what is the highest good or summum bonum.  In a political system, a Church, a market economy, or any institution, maintaining the integrity of that entity ought to be the highest good instead of pursuing one’s self-interest.  This ethical obligation is all the more binding for those who profess to believe in the value and mission of the cause they serve.

With this in mind then, how should judge Kavanaugh act?  I start with the premise that he is dedicated to the justice system and its integrity.  He has labored to further the cause of justice and make a personal contribution to this cause.  That he would be loath to allow his personal interests or limitations to sally the integrity of the justice system.

Much more than ordinary citizens, judges inform their decisions by the historical experience of humanity, looking for examples of honesty and honor, and are mindful how their decisions might affect the integrity of institutions and our collective sense of fairness.  I would expect, therefore, judge Kavanaugh to reflect how his actions would affect the institution of justice he serves and how he will measure up to those who before him faced the dilemma of whether to pursue their self-interest or act honorably and stand up for what they considered worth defending.  What could such examples be?  Here is my list, and you may have lots more to suggest.

Socrates refused to escape Athens and spare himself of the death penalty, because, he told his students, his loyalty to his city compelled him to obey its laws even when they turned against him just like he obeyed them when they protected him.

Cicero stood up to Mark Antony and eventually paid with his life for exercising his right to speak critically of a ruler.

Thomas More was beheaded because he upheld his loyalty to the Catholic Church and refused to take the Oath of Supremacy and capitulate to Henry VIII.

Dietrich Bonhoeffer, a German pastor and theologian, was executed because he stood up against Nazism and Hitler in defense of human rights and dignity.

I am sure that judge Kavanaugh was exposed to these historical examples of courage and honor during his studies in the very fine schools he attended.  How should then Judge Kavanaugh convince his American fellow citizens that he is loyal to the cause of justice and he is honorable enough to serve it at its highest level?

He doesn’t have to withdraw his nomination.  What an honorable person would do though is to tell the Judiciary Committee of the Senate that he does not wish his nomination to go forward without a full investigation and vetting and without his accuser being heard properly and not expeditiously.  And, of course, he should tell the truth even if that means confirming the accuser’s story.

There was, in classical Athens, a speech writer who wrote speeches for defendants.  His name was Lysias.  In one of the speeches, Lysias has the defendant start by giving thanks to his accuser for bringing the accusations to the court because this would give him (the defendant) the chance to prove that justice was on his side.  Similarly, judge Kavanaugh, a man of the Courts, should proclaim that he welcomes the opportunity to defend himself and subject himself to full scrutiny just like any of the defendants that sat before him in his court.  That may carry the risk of being disqualified for the Supreme Court but it would secure his place as an honorable servant of the institution of justice.

I may be reaching for a pie in the sky, but it is worth reminding ourselves that courage and honor at the cost of a lot more than a seat on the Supreme Court is humanly possible and part of our historical experience.  Defending one’s honor is not alien to human nature.

Advice from the Past

In 1820, Thomas Jefferson expressed his opposition to the doctrine of judicial review and pointed at the perils of life appointments to the Supreme Court:

You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Note:  T. Jefferson, the author of the Declaration of Independence, was not one of the writers of the Constitution.  It would be interesting to know his views about the life tenure of SC justices around 1787 and whether he would have recommended for finite terms had he been involved in the framing of the Constitution.

Author: George Papaioannou

Distinguished Professor Emeritus (Finance), Hofstra University, USA. Author of Underwriting and the New Issues Market. Former Vice Dean, Zarb School of Business, Hofstra University. Board Director, Jovia Financial Federal Credit Union. View all posts by George Papaioannou