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The Administrative Virtues

Mitch Boersma (00:00:00):
[Thank you] for being here this evening with us. My name is Mitch Boersma. I’m the director of operations here at the Catholic Information Center and I’m honored to welcome you here to our co-sponsored program tonight with the Project on Constitutional Originalism and the Catholic Intellectual Tradition of the Catholic University of America’s Columbus School of Law. We’re really excited about this opportunity to partner together with the CIT Project for the first of what we hope will be many future events.

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I mean we need to be honest here, where else in the country are you going to get a crowd like this who are revved up to talk about issues like the intersection of administrative law and virtue ethics than here at the CIC on K Street. This is a small niche but, boy, is it our niche and we love it. And so having the CIT Project here will be really great.

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And it really is a special project not least and thanks to its brilliant co-director, Joel Alicea, who I have the privilege of introducing to you now, who will then take it over from there. In addition to being the co-director of the law school’s Project on Constitutional Originalism and the Catholic Intellectual Tradition, Joel is an associate professor of law at the CUA Columbus School of Law and has also served as a visiting professor at Notre Dame. Prior to joining the Catholic law faculty, he practiced law for several years at the law firm of Cooper and Kirk where he specialized in constitutional litigation.

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Joel previously served as a law clerk for Justice Alito on the United States Supreme Court and for Judge O’Scannlain on the Court of Appeals for the Ninth Circuit. Professor Alicea’s scholarship has focused on constitutional theory and has appeared or is forthcoming in the Yale Law Journal, the Virginia Law Review and Notre Dame Law Review among other small publications.

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He has been active in public debates about constitutional law, publishing essays in journals such as City Journal and National Affairs. Professor Alicea is a fellow of the Columbus School of Law’s Center for Religious Liberty and a non-resident fellow at the American Enterprise Institute. He’s also the director of the Hispanic Student Mentoring and Leadership Program at CUA Law, and he’s been honored there with the teaching award for outstanding professor of first year classes.

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I would also be remiss if I didn’t mention that Joel is a fellow of the Leonine Forum who joined us back in 2017. We’re honored to include him among our ranks and to lead us here tonight. Please join me in welcoming Professor Joel Alicea.

Joel Alicea (00:02:16):
Well, thank you Mitch. And I just want to echo that we are just as enthusiastic to be co-sponsoring with CIC tonight. This is a great partnership for us. I think a natural partnership, one that I expect we will repeat many times in the years to come. So thank you for hosting us this evening at the CIC in this wonderful renovated space where I’ve been for mass, but not for an event. So it’s first event that I’m attending here in the renovated space at the CIC.

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I’m going to introduce our moderator for the panel today and then hand it over to him to introduce the two panelists. I do want to just note that Professor Emily Bremer, who was supposed to be joining us on the panel today from Notre Dame Law School, unfortunately got tied up with a weather delay and wasn’t able to make it. So we regret that we can’t have Professor Bremer’s presence here this evening, but we will continue on with our star panelists and with our star moderator.

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Our star moderator is Judge Greg Katsas of the US Court of Appeals for the DC Circuit. I’m going to keep the bio short so that we can get to the panel because if I read everything about Judge Katsas’s career, we’d be here for quite a while. There are a lot of honors and distinctions. But Judge Katsas graduated from Princeton University, Harvard Law School, clerked for Justice Thomas and for Judge Becker on the Third Circuit. And among many, many distinguished positions he held before becoming a judge, he was among other things deputy assistant to the president and deputy counsel to the president before being appointed to the DC Circuit. So please join me in welcoming our panelists and our moderator, Judge Katsas. Thank you.

Gregory Katsas (00:04:10):
Thank you. Thank you, Joel. So our topic tonight is administrative virtues, which is the question of how insights from the philosophical field of virtue ethics can or should inform decision-making by the vast and seemingly ever-expanding administrative state. I want to thank both sponsors tonight, the Project on Constitutional Originalism and the Catholic Intellectual Tradition and the Catholic Information Center, we are grateful for CIT and CIC for bringing us together.

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The occasion for tonight’s event is the upcoming publication of a law review article titled Administrative Virtues by Chad Squitieri, and we are excited to have him here leading the discussion tonight. For me as a judge, the phrase administrative virtues has a bit of an odd ring. On the DC Circuit, we spend a huge amount of time doing administrative law and very little time, frankly, thinking about administrative virtues. Many of the rules we enforce and apply, of course, reflect one virtue or another.

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Federal statutes require agencies to reasonably explain their decisions. That rule might reflect virtues like honesty or fair dealing or transparency, but what we do as courts is just enforce the rule, not the underlying virtue. Another thing we don’t do as judges is address the question of how agencies should act when the law runs out. As judges, we typically describe that as policy. We sharply contrast it with law and we leave it for agencies.

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When others do evaluate policy, that’s really a focus on the output of agency action. One talks about the rule, the order, the license, the guidance document, whatever it is under review and asks, is that output fair? Is it just? Is it clear? Is it efficient? Whatever. But in addition to thinking about what constitutes a good agency decision, one might go back yet one more step from that and think about what constitutes attributes of a good agency decision maker. And that’s where Chad’s article comes in, speaking about administrative virtues, focusing not on the decision but the decision maker.

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So as a bit of an expert in administrative law, but a rank amateur on these more philosophical questions of administrative or other virtue. I’m going to stop right now and just let the speakers do their thing. Chad’s going to summarize his paper and then we’ll have comments from Gene Scalia. Chad will have an opportunity to respond to the comments and we should have plenty of time for questions and answers.

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So let me just briefly introduce the interlocutors. Chad, as I said, wrote Administrative Virtues, the article we’re discussing tonight. He’s an assistant professor at the Catholic University Columbus School of Law, where he also serves as a fellow for CIT. He previously worked as a special assistant to then Secretary of Labor Gene Scalia and as an associate at Gibson Dunn. He graduated from the University of Virginia Law School and clerked for Chief Judge Brooks Smith on the Third Circuit.

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Gene needs no introduction, but I have to introduce him anyway. He’s a partner in the Washington office of Gibson Dunn where he practices administrative appellate, financial, labor and employment law. Among other things, he has served as Secretary of Labor, as the Solicitor of Labor, as chairman of the board of the Pension Benefit Guaranty Corporation, as a member of the White House Coronavirus Task Force, and as a special assistant to the Attorney General. Let me turn the floor over to Chad to explain to you all Administrative Virtues.

Chad Squitieri (00:09:17):
Great. Well, thank you very much for that, Judge Katsas. And also thanks of course to CIC for having us here today. Thanks to Gene for offering his comments and also thanks to Professor Emily Bremer who we do miss with us here today, but she did offer me some written comments that I’m very appreciative of.

(00:09:36):
So as mentioned, my paper is entitled Administrative Virtues, and it proceeds in three parts. So I figure my talk today can proceed along those same three parts. So part one is entitled Introducing Virtue Ethics, part two is called Embracing Virtue Ethics, and part three is entitled Applying Virtue Ethics.

(00:09:56):
So let’s start with part one, Introducing Virtue Ethics. What are virtue ethics? What are these administrative virtues for which is a topic of my paper? Well, my target audience, I suppose in this first part of the paper are those individuals who probably have a little bit familiarity with administrative law, but might be wondering what in the world does morality have to do with administrative law?

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And I seek to show in this first part of the paper that at least two dominant forms of moral philosophy, deontology and consequentialism have had tremendous influence over the administrative law as we know it today. And I think that opens the door to a third way of looking at morality, virtue ethics, and wondering what type of insights might this third approach offer us?

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So let me start with deontology. So deon refers to duty and the idea is that you test morality by looking at particular actions. So an actor might have the duty to do certain things or maybe the duty to not do certain things. For example, an actor might have a duty to never tell a lie, even if the consequences of telling a lie in particular circumstances, we might think that we have really good consequences of telling a lie.

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How has deontology influenced administrative law as we know it today? I think we can see its influence in what’s sometimes referred to as administrative common law. These are a collection of judge-made decisions that impose restraints on the way that agencies act. And this part I build upon some work by some other professors, Cass Sunstein and Adrian Vermeule, who I think argue persuasively that a lot of this administrative common law is difficult to trace to particular constitutional provisions or statutory provisions, save for potential fig leaves offered by the due process clause or the APA, Administrative Procedure Acts reference to arbitrary and capricious action.

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But what Sunstein and Vermeule argue, I think persuasively is that what these cases have in common is a commitment to law and Fuller’s eight failures of law. Basically these cases are all different ways of preventing law from failing in particular ways. And so I build upon their work in that first part and argue that, well, Lon Fuller is talking about those eight failures of law, he’s talking about this thing called morality of duty so we should understand a lot of these administrative case laws as being influenced by deontological thought.

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Consequentialism has also I think have a tremendous influence over administrative law, and I think this one might be more easier or more readily apparent for administrative law practitioners and judges and scholars to recognize. So consequentialism test morality by looking at the consequences of particular actions. And the idea is you want to do those actions that will have more good consequences and less bad consequences.

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And Consequentialism has had a lot of influence within the executive branch, particularly with White House officials who subject various regulations to a series of cost-benefit analysis. And what’s going on there is the essential idea, even if not explicit, is that we’re only going to do those regulations that have a net benefits, more benefits than cost.

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Virtue ethics, as I mentioned is as a minimum at least a third alternative. Now I’ll note here that a lot of people that work within virtue ethics would argue that it is the way. There’s certain truths about humans, humans have certain ends, and you have to think about things within a virtue ethics perspective.

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I don’t make that claim, that stronger claim in the article. I merely just introduced it as a third alternative to say, “Hey, let’s start considering this.” So what is it? So unlike deontology, which tests morality by looking at actions, and unlike consequentialism, which test morality by looking at actions.

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Consequences of virtue ethics focuses on actors themselves. And the idea is to think through what characteristics called virtues would assist an actor in performing their function, whatever that might be excellently. And I think there’s at least two key… Sorry. There’s a very loud horn beeping outside. I tried to go as long as I could.

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There’s at least two key components to virtue ethics. One is this idea of the mean. So virtues exists in the middle of two vices doing something too much or doing something too little. So it has a Goldilocks analysis to it.

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And another important part of virtue ethics is this idea of habituation. So when it comes to developing what are called moral virtues, you develop those essentially by developing habits. So how do you acquire the virtue of courage? Well, you start by having opportunities to face fear and overcome that and act courageously. If you continue to act courageously, you will slowly actually indeed become courageous, or at least that’s the idea.

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So how might this cut differently? If we imagine a situation where an administrative official has the statutory and constitutional authority to maybe do X, Y, or Z, what should they do? X, Y, or Z?

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Well, a deontologist might argue that we should always do X, or we should never do Y, because we have rules against that. A consequentialist might say, “Well, let’s subject X, Y and Z against various cost-benefit analyses, and let’s do the one that has the highest net benefits.”

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A virtue ethicist would take a step back, look a bit further upstream and ask, “How can we design the administrative state or perhaps even society at large to ensure that the administrative state is staffed by those officials that have the virtues, that have the right characteristics to exercise the legal discretion afforded to them in a way that’s virtuous, in a way that’s moral?”

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So that’s Introducing Virtue Ethics. Part two, I mentioned is called Embracing Virtue Ethics. And in this part of the paper, I seek to answer a question that some readers or listeners today might have and say, “Well, okay, virtue ethics, this all sounds nice and dandy, but do my, the reader’s jurisprudential commitments prohibit me from embracing a virtue ethics perspective?”

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And I seek to show that, no, essentially all readers, listeners can embrace a virtue ethics perspective. And to do that, I place readers into one of two broad camps, a formless camp and a functionless camp. So I think those two camps get at the core of what administrative power is.

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So formalist would maintain that any exercise of government power must be exclusively executive at its most extreme, exclusively legislative, exclusively judicial, can’t be a blending of the three. This point of view is often associated with originalism or judicial conservatism, although there are course exceptions.

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The alternative approach, the other broad camp is functionalism. Functionalists think that, well, we can have a blending of the three powers, the executive, judicial and legislative powers. And this view is often associated with living constitutionalism and a judicial progressivism. And my goal is to show that whether one is a formalist or a functionalist, and thus by loose proxy, suspected of being an originalist or conservative or living constitutionalist or progressive, that you too can indeed embrace a virtue ethics perspective.

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So how can that be? Well, let’s start with formalists. So if you think you’re a formalist, listen up. This is me talking to you. I think that a formalist can embrace a virtue ethics perspective by recognizing that administrative officials constitute a distinct role in government that presupposes virtue.

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So what do I mean by distinct role? Well, administrative officials are not Article III judges. So even if you are a formalist and think, “I don’t want my Article III judges engaging in a lot of policy debate. I don’t want my Article III judges engaging in moral debate.” You should recognize that administrative officials are distinct. They do create policy and that can be a good thing within limits. And I certainly hope that when they’re creating that policy, they are thinking about the morality of their action. So they play a distinct role.

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What about the presupposition argument? Well, I think a formalist should recognize that the federal government seems to presume that there will be sufficient virtue in the administrative officials carrying out the people’s duties. Otherwise, if there is no virtue, the whole system would collapse. And at this point you might think, “Well, what about this guy named James Madison? Didn’t James Madison tell us that men are not angels? And isn’t all this virtue ethics stuff? Isn’t that essentially just saying, ‘Oh, we can just hope that men will be angels. We’ll hope that they’ll be virtuous and we’ll place our trust in that.’”

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And my argument is no. I think you can embrace a virtue ethics perspective within the Madisonian conception of the federal government. And why do I think that? Well, I’ll cite James Madison back to you who mentions, quote, “Republican government” presupposes that there will be, quote, “sufficient virtue” among men for self-government. Otherwise, if there was no quote, “virtue” among us, then the country would be in a, quote, “wretched situation,” because, quote, “no theoretical check,” no form of government can render us secure.

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So the idea here is, yes, men are not angels so we need things like separation of powers, checks and balances to limit the occasion upon which we have to trust in the virtue of a particular individual. But no matter how much you limit those occasions, there will be at least some occasions where administrative official has to act, perhaps they have to make a decision in the dead of night when no one is around and there won’t always be someone from an opposing branch looking over their shoulder to make sure that they’re not constantly trying to lie or cheat or what have you.

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And if I can take advantage of being at CIC tonight and place things in perhaps more explicitly Catholic terms, yes, men are not angels, but also men are not the opposite of angels. They’re not fallen angels. They’re not evil spirits. So men, although angels and fallen angels can decide in a moment whether they’re always going to pursue good or they’re always going to be an opposition to the good, humans, men are not like that. They make multiple decisions over the course of their days and their lives.

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So they’re not always, yes, going to be towards the good like an angel, but they’re also not condemned to always being opposed to the good. And that of course is because of a very important person who died for us all about 1700 years before James Madison was writing about this type of thing. So yes, we shouldn’t presume men to be angels. We also shouldn’t assume we have a situation where we presume men are the opposite of angels either.

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We should presume that men, humans are humans, and what makes humans humans are their virtues, right? That is the essence of living an excellent life. So that’s how I think a formalist can embrace that virtue ethics perspective.

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What about functionalists? I think the case is a bit easier for functionalists, and that’s because functionalists tend to recognize, you know what? It is a bit dangerous to place executive, legislative, and judicial power into single sets of government hands. But functionalists will often say, “Don’t worry, it’s not that dangerous because we’ll require these officials to act with a certain type of character, to act with a certain professionalized technocratic expertise.”

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And here I would say, “That’s a good start, but it’s a bit too narrow. Yes. We’re looking at the character of officials, great, but it has to be more than just their technocratic expertise, like an expert in environmental regulation or workplace regulations, what have you. We should be looking a bit more broadly at their virtues just more generally.” So that’s embracing virtue ethics.

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Finally, the third part, Applying Virtue Ethics. And in this part of the paper, I seek to show how administrative law might look different or perhaps be further strengthened if we have this focus on virtue. And to do that, I discuss what are called the four cardinal virtues, prudence, temperance, justice, and fortitude.

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Cardinal comes from the Latin cardo, of course, means a hinge. So there are other virtues, there are virtues within those four cardinal virtues. But the idea being that these are like the pivotal virtues, and so I focus on those. So the first is prudence, often called practical wisdom. And practical wisdom assist actors in choosing the appropriate means to accomplish appropriate results. I think this is very important for administrative officials because they will often have multiple means available to them to pursue a policy outcome.

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So an administrative official might say, “All right. I want to do policy X.” I can perhaps do that through sub-regulatory guidance or I can just change the FAQs on my agency website or perhaps I want to go through a formal rulemaking or an informal rulemaking or an adjudication, or they might say, “You know what? We actually need a new statute here, so let’s work with Congress, provide something that’s called technical assistance and help Congress draft a new statute.”

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A prudent administrator will know which means are most appropriate for a particular policy outcome. And I think focusing on instilling prudence in officials can provide additional support for some pre-existing aspects of administrative law. One is the deference that courts sometimes give officials for finding that they have, quote, “good cause” to forego certain rule-making procedures.

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And another thing it could strengthen is this principle called Chenery II, which essentially says a court should let agencies decide whether to pursue a policy through rule-making or an adjudication. So it’s an open question right now whether those types of deference actions are appropriate, because it’s an open question right now whether officials truly have prudence, right?

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We might assume they have technocratic expertise, but they truly have the more broader prudence. And I think if we instill that broader prudence, then it would provide perhaps a better foundation for those types of doctrines.

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Second cardinal virtue is temperance. This regulates the human appetites regarding food, alcohol, and what I’ll refer to as adult relations. So I get in and out of this virtue pretty quickly in the paper, try to keep a PG-13 rating, I guess. And the idea being right, I focus mostly on a form of temperance sobriety regarding alcohol. The phrase sober as a judge, right? Good thing we should also have sober as an administrative law judge as well, right? That’s important as well.

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That joke only lands in very certain rooms. The third virtue is justice. The virtue I discuss is justice. The idea being you’re supposed to give to each person what is due to them. And in the paper I focus on the Aristotelian conception’s broadest conception of justice, which is justice as lawfulness. And here I refer to law and the sense of what Aristotle might’ve thought of as nomos, which includes things like statutes and case law, yes, but also norms and customs.

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And so I do a case study in this part of the paper looking at the Department of Education’s recent efforts to forgive student loan debt and particularly their efforts to change substantive policy to that loan and forgiveness are reportedly on the fly for the purpose of insulating it from judicial review. And I argue that taking away from someone their opportunity to challenge ANC regulation in court, even if the agency had the statutory or constitutional authority to do that, it was certainly I think a break with norms and customs to do that, and I think therefore unjust. So that might be a type of change.

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Finally, the fourth virtue that I discuss is fortitude. Today we might refer to it as courage. The biggest source of danger I think in the modern administrative state is political danger. The idea being, oh, if you make a policy decision that proves politically unpopular, and therefore you’re out of a job.

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So I think instilling prudence in the administrative state would lead to at least two changes. One would be a reinvigoration of the non-delegation doctrine, which essentially would just require Congress to make more of those politically dangerous decisions itself and slowly have to be habituated to acting courageously rather than cowardly kicking the politically dangerous decisions over to agencies and have them decide it.

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A second change that I think would result from instilling prudence is a continuation down the Supreme Court’s recent line of cases discussing presidential removal. These types of cases essentially make it easier for the president to remove an administrative official from office. The idea being that if that official now knows that the political unpopularity of their decision might mean they’re out of a job, but now they are truly facing political danger and can thus be slowly habituated towards becoming courageous over time. So with that, I’ll stop there.

Gregory Katsas (00:27:33):
Okay. Gene, thoughts?

Eugene Scalia (00:27:37):
Well, thank you both. Thanks for the introduction. Nice to be here. I’m going to say there are seats up front. I see people standing in the back and come on in. There are seats for you. I see seating for like eight people and I urge you to do so because I’m worried you might be about to walk out. So really there are I think six, eight, nine seats up front, so come on in.

(00:27:58):
But look, I’m pleased to be here with all of you and pleased to be here at the Catholic Information Center too, which does so much good work in this city. And I’m honored to be included with the judge and Chad in part because I feel actually quite inadequate to the task of this discussion.

(00:28:21):
It’s a subject to some embarrassment to me, but what I’ve never been able to overcome that I really know very little philosophy. I got no patience for this stuff. I try. I try. It’s just not me. And I rank it up there with the fact that I’m an English major who just never really could get through that much Shakespeare and I apologize and I’ve tried. I know it’s an intellectual and probably also a moral failing, but it’s too late to change it.

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What I do think I can offer though is a bit of a practical perspective on the issues in your paper, Chad, as somebody who practices, administer the law and who also has served in the government, I guess, four times now and can think about things from that perspective.

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So I liked your paper. I enjoyed reading it. I learned a lot from it. I guess I’ve already indicated to you that I had a lot to learn in the area of philosophy, but I did genuinely find what you identified as the first part of your paper, it’s very instructive on different moral, philosophical methods, consequentialism, deontology, if I have it right.

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And I found that to be an illuminating discussion of how one could view administrative law today. That cost benefit analysis, for example, really can be classed as a form of consequentialism. And that much of our focus on process under the Administrative Procedure Act has to do with deontology. So I’ve found it to be an illuminating discussion for an administrative law lawyer and perhaps also for somebody coming with a philosophical background to gain a better understanding of our values in our legal system.

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I thought you did a nice job as well in selling the introduction as well of virtue ethics, that there are these other two forms of ethics that people may be comfortable with, but you ought to welcome virtue ethics. You ought to welcome virtue ethics if you’re a formalist, an originalist, because as you explain, our constitutional structure is built in part on some understanding that virtue is going to play a role. Obviously, the administration of our government is not antagonistic at all with the framing of the Constitution.

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As I think I may have mentioned to you in an email, I do wonder whether some of the founder’s statements about how our constitutional system is designed to attract and yield up people of virtue. I did wonder whether that was a sales job in the context of the Federalist Papers, state ratifications, is it really true that the way the president is selected is maximized to find the person of greatest virtue? I’ll come back to that topic a little bit later.

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And I did also wonder whether a virtue might be used by the founders in that context in a somewhat broader way than with respect to say virtue ethics, moral virtues, but just something to consider. But then likewise, and I think as you said, it’s an easier sell to people who are less formalist, more functionalist about the constitutional system and design.

(00:32:01):
It’s an easier sell for them to disregard structure and law and just act in accordance with perceived virtues. But still kidding aside, I thought you did a nice job pitching virtue ethics to people taking less formalist, more purpose-based approach toward constitutional statutory interpretation of structure.

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And then just on the subject of virtue in governments itself, there’s never a bad time, never a wrong time to talk about the importance of having people of virtue in government and having people in government understand what we consider to be virtue and the importance that it has to their positions.

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I still remember my father, Justice Scalia, just one of those conversations when I’m a kid or young man, I remember him saying at some point, and to Craig, no offense, but something along the lines of Harvard Law Review, he said, “They graduate 30 new Harvard Law Review editors a year, every year, here come 30 more, here come 30 more. They’re dime a dozen. There are so many smart lawyers around.” He said, “Judgment, that’s what sets people apart. It’s about judgment.”

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And of course, my father was a Harvard Law School graduate and Harvard Law Review alum so he met no ill toward Harvard, but that has really struck with me, in part, because it’s how he perceived the value that he brought and because I just think he’s right. There are a lot of smart lawyers walking around, but what distinguishes a lot of the best is that in addition to that, they’re bringing very good judgment. And in fact, I’ll take a lawyers maybe not quite as smart, but has the better judgment virtually every time.

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A piece that I would commend to you, Chad, is one by a former colleague of Judge Katsas’s. Judge Silberman passed away back in 2022. He has a piece in the Harvard Journal of Law and Public Policy, I think it’s just titled On Honor. It’s a piece about honor and which he begins by describing is a somewhat outdated concept that there ought to be an understanding of proper behavior on the part of people in government, separate and apart from what their legal duties are, there are just certain ways to behave, things you should do, should not do, and you ought to be thoughtful about how to comport yourself.

(00:34:42):
Judge Silberman was a great mentor to me, a great judge. I happen to think that one of the things that makes him so memorable is how thoughtful he was about people in government and what their responsibilities are. And I think he would’ve liked this article and your attention to virtue of governments, because it’s something that he gave a lot of thought too.

(00:35:04):
I did find myself wondering whether ultimately the subject of this paper is law or government more broadly. And I think the judge touched on this maybe a little bit briefly. I think of law as a set of binding constraints that in one manner or another and in one form or another are ultimately enforceable. You are accountable for them under the law.

(00:35:34):
I sometimes describe administrative law to people as the law that governs the government. And virtue in the sense you’re talking about it here seems to operate within the constraints of the law. The concept is the law binds you in certain way, that is administrative law, but how do you behave within the interstices of the law within the room for discretion the law allows? Virtue ethics informs that.

(00:36:05):
I have no quarrel up with that. I did wonder though whether this is more an essay about the design of government and less about administrative law itself, but ultimately, it doesn’t matter. I think it’s a very important discussion either way.

(00:36:23):
So I did want to offer some thoughts about the practical perspective, which I mentioned one that I think I can bring and I guess we’ll divide my thoughts into four different levels of government starting with the top with presidents. And what role do virtues have in determining how we staff the presidency and how people come to have the presidency.

(00:37:00):
In a way your discussion breaks on how virtue should be considered and used in staffing and also how virtue could be instilled. So what’s virtues role in staffing the office of the presidency? And you gave me a list of the 12 moral virtues from DeMoss, and it’s just one breakdown of Aristotle’s 12 virtues and I know it’s subject to vagaries of translation and also interpretation in a broader sense.

(00:37:42):
I noticed that it does include among the 12 moral virtues, friendliness, and jocularity, which do seem to be prime determinants of who succeeds in attaining the presidency. And also ambition, which certainly plays a role, although this list refers to the mean concerning ambition, because Aristotle’s list, by the way, this Aristotle guy is really good.

Chad Squitieri (00:38:18):
I mean, yeah. Smart guy.

Eugene Scalia (00:38:21):
Yeah. I’m really excited-

Chad Squitieri (00:38:21):
Should have invited him.

Eugene Scalia (00:38:22):
… to read more about this fellow. But the idea here is finding the gold mean, the midpoint. And so the mean concerning ambition is not excessive ambition, but not a total lack of aspiration or whatever, let’s get the balance.

(00:38:38):
Also on the list, righteous indignation. Man, if you want to be president then a whole lot of righteous indignation is really valuable, although if I understand correctly, this is a false virtue and has been replaced by justice by Aristotle later in Nicomachean ethics.

(00:38:57):
So on the flip side, truthfulness, what role does truthfulness play in staffing the presidency? I think probably not all we would want it to. And I noticed that liberality and magnificence are among the moral virtues. And I’m sorry, I’m a limited government guy and I don’t really want that much liberality and definitely not magnificence on the part of my presidents.

(00:39:27):
Kidding aside, I do think that in some rough ways as voters consider who to put in the office of the presidency, some of these virtues do matter to them, but frankly it’s a little bit dismaying sometimes how little it seems they ultimately do. Let me talk about the level of governance that I had or maybe I can offer the most practical insights as a cabinet secretary and then also just as the head of the Legal Department at the Labor Department, which heads about 500 lawyers.

(00:40:00):
What did I think about when I was staffing government? I wanted people first, and I’m talking about hiring for political positions, by the way, not for civil service positions. But for political positions, job one was policy. I’m not going to hire somebody that’s not aligned with the president and with me on issues of policy. That’s extremely important. That is going to eliminate a lot of people who might have other qualifications for the job. They’ve got to be on board of the program.

(00:40:32):
Second, intelligence in legal positions or senior positions under the Secretary of Labor is going to be very important. There’s going to be many people with a lot of fine virtues, but I’m not going to get to them because they’re not going to make that cut. And then I’m going to care about work ethic, hard work, capacity just to get things done. And again, when I’m going through resumes and conducting interviews, there are going to be a lot of people that don’t make that cut.

(00:41:05):
I am going to care about jocularity and friendliness in the sense that I’m going to want somebody that I perceive as able to get along well with colleagues and that’s going to matter to me. And by the way, I forgot to mention loyalty. Judge Silberman, his piece on honor places a great premium on loyalty as an element of honor. And I consider loyalty when hiring into political positions of the government extraordinarily important for a whole lot of reasons, some of them based on personal experience. And I want somebody who’s going to be loyal to the president, which I owe, and then loyal to me.

(00:41:49):
By the time I get through those qualities, I’m probably down to a very, very short list of candidates frankly. And I just may not have the luxury to consider certain other qualities such as justice, important to me, don’t get me wrong, important to me. But I don’t know that I really care all that much with respect to the people that I’m hiring, and given all the other things I would put before it.

(00:42:28):
And in some ways more importantly, I don’t know how I would ever know that anyway. When you’re hiring people who are a few years out of law school, had a series of jobs, have not been public figures, you’ve got just a very limited ability to discern so many of the virtues that one might want. Temperance, yeah, I don’t want to hire a drunkard, but I may have a really hard time knowing in advance frankly what’s happening there, or prudence, very important. May be very difficult to discern that when you’re staffing the government.

(00:43:12):
I think I’ll referred to the position I held, cabinet secretaries, can we staff cabinet positions attentive to the virtues? Actually think that in that context there’s a greater capacity to do it because you’re dealing with people who’ve got a established public record. One would hope been in a number of positions over a number of years, interacted with a number of people at some level of prominence, and you are able to assess what they did, how they behaved, and you’re able to talk to the people who are around them.

(00:43:51):
And so I do think that just as a practical matter, you can bring it to bear there. And then finally, let’s talk about the vast majority of government employees who are in the civil service. I did not go back and look at the criteria and constraints around hiring into the civil service, but obviously they’re notoriously tight.

(00:44:13):
Same with respect to promotion, it’s a highly regimented system and I suspect it’s relatively hard to introduce criteria outside of those which are enumerated in the documents governing civil service hiring and promotions. Although let me hasten to add that so many of the moral virtues and particularly the cardinal virtues are going to manifest themselves just in how people do their job over a period of time once they’re in a department.

(00:44:49):
As I reflected on this, I do think that the promotion system within an agency does probably have some capacity to yield up and promote and retain, for example, people who are prudent, who have strong practical wisdom. I’m mindful of particular men and women that I worked with at the Labor Department both times I was there who were in very senior SES positions. They had survived leaders of different political parties over several administrations. And that was in part because of technical abilities, which you talk about in your paper and certainly are distinguished.

(00:45:31):
But I think in the case of some of the people that I’m recalling, it was also because of their practical wisdom, their prudence, their judgment, and I think as well their sense of justice if that’s defined to include a sense of fairness of what’s ordinarily appropriate within the bounds of discretion the law gives you. I think that the promotion system, at least toward the higher levels and when we consider both who’s there, who’s promoted, but also who’s retained that the system may function there.

(00:46:05):
On the other hand, courage, another of your four cardinal virtues. I don’t know that courage is something that’s necessarily rewarded with promotion and retention in bureaucracy. I’m not sure that senior career civil servants necessarily distinguish themselves in that department, even though courage in government is extremely important. So those are my questions about how this works practically in staffing up the government.

(00:46:37):
Let me turn the last to two things. One is obviously you have to ask the question as you finalize your paper whether for your typical government decision makers, the virtues all often point in different directions or put differently whether when you want to do something, there are always one or two virtues that will justify you’re doing it.

(00:47:04):
You gave the example the student loan program, perhaps the way the administration dealt with the student loan program was unjust by some definition. But if I come back to liberality and magnificence in the government, I might be able to justify underhanded measures to continue the program afloat. So I think that’s a question to be asked.

(00:47:29):
What number of decisions that a government decision maker might make do these virtues ultimately screen out and eliminate? How much do they ultimately guide? So finally, on instilling virtue, you talk about it in your paper. I do think that in some ways will be a challenge in government. I believe that Aristotle’s view was that virtue is instilled not through instruction, not through training in the ordinary sense, but more through practice, through habituating people, to acting in a virtuous way.

(00:48:11):
And I don’t know how you manage that in the executive branch, but I would not want it to involve is giving to career civil servants important policy decisions that really belong to the president’s political appointees. So how you instill it may present some challenges, but let me just, I guess end on that point and say that certainly virtues can be modeled and instilled in that way and we need our government leaders to do it.

(00:48:50):
And by the way, that’s why heroes are so important. Heroes in this country are under attack. They’ve been under attack since I’ve been an adult, I think. They’ve been out of fashion in so many circles for so long. But as I’ve thought about it, one of the principal reasons that we need heroes, including men and women who’ve been in government, who’ve been leaders, is because they model virtues. Not every one of them model every virtue, but I think our greatest heroes model two or three extraordinarily important virtues. And I think your paper reminds me of one of the reasons that we really do need to remember and honor our heroes. So those are my thoughts and welcome judge yours.

Gregory Katsas (00:49:35):
Thanks Chad. Yeah. Gibson Dunn, Labor, CIC, seems like everywhere you go, Gene turns up to review your work, but tonight you get the final say.

Chad Squitieri (00:49:47):
I will say the other day you shot me and emailed the question. I was having flashbacks. So thank you very much for those comments. I really appreciate it. I’ll start by putting you on the spot, maybe embarrassing a bit, but you mentioned Judge Silberman and his essay on honor. And so yesterday actually I got to go to the court and watch some of the Chevron arguments. And as I was walking in, I was with Judge Silberman’s wife, Patricia, and I was thinking, I remember at an event Judge Silberman talking about you, and I forget exactly what he said, but it was very memorable.

(00:50:28):
He said something about like, “Gene is a man who’s honorable down to his toenails.” So yes, I do think those of us that came from labor, I think you were a role model for us in that regard. And Judge Silberman who as you say, wrote an article about honor thought the same so I wanted to mention that.

(00:50:48):
A few of your smaller points, the sales pitch thing about the Federalist Papers. Yeah. So I think it was John Manning might have an article about this from the early 2000s on how to read the Federalist. The idea being that I don’t want to call them propaganda, but maybe diet propaganda or propaganda light or something like that. But they’re so useful, they still inform original and public meaning, right?

(00:51:16):
People reading the Federalist Papers, they might’ve discounted it a little bit thinking, “Okay. We know you’re trying to sell something, but we also don’t think you’re straight out lying to us.” So I agree that it might be a little bit of a sales pitch, but also still can inform the original understanding of what the Constitution was trying to lay out.

(00:51:34):
Your point about the Harvard law editors and smart lawyers and all that, totally agree with that and it’s what I’m trying to draw out in this paper. Whereas we have throughout the administrative state, a lot of smart people who have a lot of expertise about a lot of things, but it’s truly the prudent official that knows how their expertise fits within the broader goal of their agency, the federal government and society in general. So yeah, I’m definitely trying to draw that out. So I appreciated that comment.

(00:52:12):
And then finally, one thing I’ll mention, your point about importance of hiring people for maybe policy alignment and things like loyalty. I think those properly can be considered within justice, within the virtue of justice in that thinking that, okay, I owe a sense of loyalty to my superiors up to various points. And depending on where I am, if you’re the secretary or the special assistant to the secretary, you know you get to make certain levels of policy decisions, but you know that people above you can overrule you in your job principal agent relationship is to carry that out.

(00:52:55):
So I do think you can conceptualize it within the virtue of justice essentially being recognizing I know what my role is and where I’m perhaps going too far. But in short, just really appreciate the comments. So thank you very much.

Gregory Katsas (00:53:09):
Any group who asks a DC Circuit judge to moderate an event assumes the risk that the event will run over. We’re going to run over to give you all a chance to ask a couple of questions, so please.

Speaker 6 (00:53:28):
Okay. I am going to focus because I have a lot of content that I’ve written just live in events hearings in the past week and whatnot. But first my favorite comment about the administrate may have been your father commenting on Obamacare wanting it unconstitutional because it’s cruel and unusual punishment to have to read it.

(00:53:45):
So whether that was virtue or whether that was a racket for universities to get control of healthcare, that’s another question. But with Washington and Madison to find virtue in a principle in the founding, if you use Washington’s letters to the Jews of Newport, trying to explain how the people’s order assigned done in the year of our Lord wasn’t against Jews. He’s talking there’s no bigotry tolerance.

(00:54:12):
It’s like we may be under our Christian Lord in a calendar, but it’s a perfection standard. So it would be unchristian for a Christian to be bigoted. So the under God, you’re right from your creator is putting God above government not a wall of separation, giving equal standing to secular socialism. So there is a mystery in Madison besides Hamilton and Federalist, one, it’s for inducements of philanthropy and preservation of property.

(00:54:43):
You run into there is some stuff in there, but just to simplify it and just go to Washington’s letter, have you considered where to write that letter and why he would’ve written that letter and said that? He was actually addressing where the morals are.

Chad Squitieri (00:55:02):
Yeah. Thank you. As you’re talking at CIT, we had an event, I think last week on religious liberty.

Speaker 6 (00:55:09):
I was there.

Chad Squitieri (00:55:11):
Oh, great. Yeah. And so I think to tie it more broadly to virtues. A virtuous person is not someone who is being threatened to act virtuously. You have to want it and embody it. So I think a lot of this, yeah, you might think this is a truth in the world and this is how people should be, but you have to lead them to water, not necessarily force it. So yeah.

Speaker 6 (00:55:38):
[inaudible 00:55:36] what does it mean to have a creator?

Chad Squitieri (00:55:40):
Yeah. Thank you. I appreciate it.

Gregory Katsas (00:55:42):
While we’re drilling down a bit on Madison, how does Federalist 10 play into this? You got those great quotes about the republic presupposes virtue, on the other hand you have, if men were angels no government would be necessary. You also have this idea that you need structural rules like a large republic to solve a problem of faction, and then you just let people be self-interested and the system will take care of itself. Is that intention with your theory?

Chad Squitieri (00:56:25):
No. I guess I don’t think so. I do think it’s important, I’m certainly not saying we don’t need structural rules, we need structural rules, trying to limit the occasion to rely on virtue. But I do think particularly with the size of our government compared to others, that might be an advantage of virtue ethics in that…

(00:56:48):
I mean just look at the administrative state, vast, all different types of people doing all different types of things. I think it would be impossible to have a deontological framework where we’re going to create a bunch of rules and tell every single person what they can and cannot do. That would be impossible. We would just have a government run by computer software. Whereas I think if we focus instead on trying to make sure that individual people are virtuous, which is not just rule for government, society in general, then we can have more trust that in the moment they’ll perhaps do the right thing.

Gregory Katsas (00:57:25):
Other questions?

Chad Squitieri (00:57:27):
And I think maybe the microphone. Yes.

Speaker 7 (00:57:35):
The virtues are related so there’s not just four virtues and now you didn’t want to go too deep dive into temperance, but Aquinas makes the point that somebody who is living an unchaste life is incapable of being prudent, making good decisions. So wouldn’t a criteria for staffing look into the moral life of the person because you don’t want someone on your team who is incapable of making good decisions?

Eugene Scalia (00:58:13):
Is that part of your program, Chad?

Chad Squitieri (00:58:17):
So I’ll say the way that I’ve heard it described about the virtues, at least the cardinal virtues is that, I guess different buoys in the ocean and you can have more of one than the other, but they’re all connected. And particularly prudence, which is referred to sometimes the charioteer of virtues. It leads the other virtues.

(00:58:43):
So I think they’re connected and I think you need all of them. You can have stronger virtues than others in different moments in your life, but I do think you at least need the four. Yeah.

Gregory Katsas (00:58:58):
Anybody Else?

Speaker 8 (00:59:00):
Thank you. So Chad, I just wanted to say first of all, it’s a tremendous paper. I’m mostly impressed, of course, with the writing, but that you had the idea because when I think of the administrative state, eudaimonia is far from my mind. But I wanted to ask you, in particular, about OMB circular A-4, right? But the Biden administration has just changed cost-benefit to include certain progressive values, climate justice, these sorts of things are now on either side of the scale.

(00:59:28):
I wonder, could a future administration come in and say, “Cost-benefit analysis shall now include the impact of a particular policy on the virtue of the citizenry?” So you think, for instance, economists talk about the crowding out effect of say social welfare, taxes on personal generosity. Have you thought about that? What would that look like and what would judicial review then look like?

Chad Squitieri (00:59:52):
Great question. Also, very on-brand, A-4 circular question from Giancarlo. I think a future administration could do that. And I think it goes to part of the reason why perhaps we need virtue in that different administration. You could imagine a situation we just say, well, the one we had since Reagan era, we’re going to do it by CBA, just going to be pure numbers, pure math, and that’s what’s going to be, we don’t call it moral, but that’s what we’re going to do.

(01:00:22):
But then if each administration starts realizing we can put these deontological constraints in, we like the environment, we like whatever it is, virtuous citizens, and then you have incentives to cheat and flex and fudge the numbers a little bit. To the current or our administrator, he co-authored at least two books about cost-benefit analysis. And one of his points that critiques the last administration and saying that, “Oh, they basically did it wrong, but we shouldn’t throw out the [inaudible 01:01:00], we can still hang on to the CBA.”

(01:01:04):
I think that goes to the reason why the quote-unquote “other political party can always do it wrong so we should try to work on a ceiling virtue so that it’s presupposes that analysis.” If that makes sense? Yeah.

Gregory Katsas (01:01:17):
Maybe time for a couple more.

Speaker 9 (01:01:24):
Thanks a lot. Really appreciate it. Chad, thanks for the paper. And Gene, thanks for the practical aspect. I will say quickly that in terms of judgment and the question of character, at least we’ve had one president who’s answered that. President Truman insisted that people who had either been divorced or had irregular personal relationships not serving the White House, his insistence was that he could not trust their judgment.

(01:01:53):
So we’d at least have one example from history of a principal making a decision that reflects some of the implications of your paper. And Chad, just curious, with this paper and this concept, as you tease out and think through this, where do you wish this concept to go? How do you want this idea to flourish? What are your next steps to try to impress upon people this way of looking at approaching government and governance?

Chad Squitieri (01:02:27):
Thank you for that question. I think as far as next steps, the idea is I could write papers about every component of society helping to instill virtue. So I’m an administrative law professor, so I focus on that. I’m hyper focused on administrative law in this paper, but it includes the courts, it includes Congress, it includes state governments, it includes also more importantly, private entities, church, family units.

(01:02:57):
So it’s just a reorientation. I’m trying to figure out what it is that we’re trying to do. And as far as next steps, this is going to make it seem like this was a planted question, but I have a new article coming out about instilling virtue in Congress, which is perhaps even harder to ask.

Gregory Katsas (01:03:13):
[inaudible 01:03:14]

Chad Squitieri (01:03:14):
Yeah. So thank you. Yeah.

Speaker 9 (01:03:19):
[inaudible 01:03:20] I got a lot of time.

Chad Squitieri (01:03:19):
So yeah, I think it is just a re-conceptualizing what we’re trying to do. So people using their powers as appropriate to instill virtue.

Eugene Scalia (01:03:28):
Yeah. Just a little perspective on that. You want all these fine qualities, as many of them as you can get. But the more history I read, the more struck I am by how many actually very effective consequential, in many ways admirable leaders we’ve had throughout history. I’m not just talking about American history. I mean just go all the way back who had one or another actually really terrible moral failing.

(01:03:58):
And so I would be very careful about a position which says that this particular failing is disqualifying, because you might then before you adopt it, ask yourself, “Okay, what great figures in history have I now disqualified from ever becoming great figures in history?” I’d be mindful of that.

(01:04:19):
And then the last thing I just feel compelled to say is that if there are actually effort to get this project off the ground in a practical matter in the government, I would promote it with a strong emphasis on another value which we hold, which is religious liberty and religious non-discrimination because I think we’d want to be very careful about a virtue project which suddenly began to become, unintentionally, a program that resulted in treating people differently because what their faith was. That’s obviously not something CIC would want.

Chad Squitieri (01:05:01):
Yeah. And just to make clear, so in the article I made clear. It’s not theological at all. Mostly I draw on Aristotle, not even Aquinas. So this is for people of all different types of views. And then one other thing too, people, we’re humans. We fail. So like a courageous person can occasionally act not courageously. It doesn’t mean that they’re not courageous, it just means they happen to have a failure in the moment. So certainly not claiming that people have to be perfect.

Speaker 10 (01:05:33):
So in light of those comments, I think very practically also, and so when you say in the practical realm, it’ll be very difficult to discern whether or not somebody actually has any of these moral virtues when you’re doing the hiring of the staff. And then when you also say that there’s a loyalty that is almost prerequisite in both the president say choosing his cabinet and the cabinet choosing, et cetera, et cetera, all the way down the line for the political appointees, which are the only ones that really have the opportunity to exercise these virtues and that the further up you get, the more opportunities you have.

(01:06:17):
It seems to me that there’s a lot of structure to the government that prohibits the ability to exercise virtue per se. It’s in the creation of that structure and those rules, those people who put those rules in place so they have the opportunity to exercise the virtue.

(01:06:40):
And then every once in a while there’s this situation like say where, I don’t know, like Vice President Pence had to make a really hard decision, be loyal or do what was right. And he did what was right. And it seems to me that’s the sort of thing you’re trying to talk about in your paper is the exercise of a virtue when it’s a clutch moment because there’s so many operations in government that are almost perfunctory because of the loyalty factor and you’re choosing people among those who are already on board with your program.

(01:07:16):
And so they almost have foregone the deliberate exercise of virtue. So I’m curious as to do you think that the imposition of one’s virtues like you have the opportunity to exercise them, and where would you have the opportunity to exercise them in such a tight structure in practical terms, given the description that we’ve heard today?

Chad Squitieri (01:07:46):
So at all moments, and I think you hit the nail on the head. It’s a benefit I see of virtue ethics over deontology is that we can’t create a computer software to determine here’s everything you might encounter. So if we just focus on instilling as best we can virtuous people. That’s [inaudible 01:08:05]. So I think we’re running over time so…

Gregory Katsas (01:08:07):
We are out of time for the formal part of the program, but the conversation can continue in the reception immediately to follow. Please join me in thanking Chad and Gene for a brilliant presentation.

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