“I don’t believe in the no-win scenario.”

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Earlier this week, I was going to write a long piece on the impact of elections by focusing on the 2024 North Carolina Supreme Court election. A narrow re-election victory by Supreme Court Justice Allison Riggs has been challenged by her Republican opponent, seeking to throw out 65,000 votes in hopes of overturning her win. Riggs’s victory has been upheld by two lower court rulings already, but this election – and its ultimate judicial outcomes – is heading toward a split North Carolina Supreme Court, having major consequences in the state. [1]

Maybe in another post…

Reminder:

My book on local elections and their role in self-governance is available for Kindle pre-order - paperback version coming soon!

“No-win” Scenario

Today, we’re going to focus on some recent decision making in these early weeks of the second Trump administration.

We’re going to talk about what may be viewed as “no-win” scenarios, cases where the choices we face lead to negative consequences, no matter how we choose.

There are various examples of this: [2]

Unavoidable or unforeseeable circumstances causing the situation to change after decisions have been made.
In chess, this is described as zugzwang, when any move a player chooses makes them worse off than before such as losing a piece or being checkmated.
A “Catch-22” situation, where there is no escape due to mutually conflicting rules or conditions.

Given the prospect of losing no matter what, we can see why people try to avoid actions that get them into “no-win” situations - they back off, keep your head down, go under the radar hoping that they are not the next one picked on.

However, in many cases, we can’t anticipate these situations. If we do find ourselves there, we should position ourselves to handle future decisions, not merely the one in front of us.

We have to think of the future.

It’s the individual choices of people that lead to societal change. Keeping our heads down in the hope of avoiding individual “no-win” situations only makes us weaker in the long-term. And we have historical precedent to warn us of such cases.

From the United States Holocaust Memorial Museum (photo by Mic Farris)

A quote based on impromptu statements by Martin Niemöller is on display at the United States Holocaust Memorial Museum. Niemöller was a prominent Lutheran pastor in Germany, and in the 1920s and early 1930s, he sympathized with many Nazi ideas and supported radically right-wing political movements.

But after Adolf Hitler came to power in 1933, Niemöller became an outspoken critic of Hitler’s interference in the Protestant Church. He spent the last eight years of Nazi rule, from 1937 to 1945, in Nazi prisons and concentration camps.

Niemöller is probably best remembered for his post-World War II statement, which begins “First they came for the socialists, and I did not speak out…” [3]

First they came for the socialists, and I did not speak out—because I was not a socialist.
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—because I was not a Jew.
Then they came for me—and there was no one left to speak for me. [4]

Niemöller’s quote clarifies that it’s not just one decision that determines our future, but a series of decisions – each made more difficult if we don’t weigh the long-term consequences of those decisions.

We need to be prepared for what we would do if we found ourselves in the short-term “no-win” scenario, thinking ahead and understanding the consequences associated with giving in or keeping our heads down.

The environment around us is changing. Things that we took for granted – the checks and balances of our constitutional framework, the expectation that leaders would lead, or even that our government just functions – are no longer something upon which we can safely rely.

Columnist Jamelle Bouie describes what is happening – highlighting the difference between actions that are unconstitutional and anti-constitutional:

Most of us know what it means for something to be unconstitutional. An unconstitutional act is one that violates some aspect of the Constitution as understood by the courts, although the public and its representatives are also free to make claims about the constitutionality of one act or another.
The courts have said, among other things, that racial segregation in public schools is unconstitutional; that unequal representation in state legislatures is unconstitutional; and that laws banning same-sex marriage are unconstitutional. Moving to the present, we can say that President Trump’s order overturning birthright citizenship is, according to the plain text of the 14th Amendment, unconstitutional. There is also a strong argument that the president’s effort to remove transgender people from military service is… unconstitutional.
You get the picture.
But there are other ways to evaluate the actions of a government. You can ask a somewhat different question: not whether an action is constitutional, but whether it sits opposed to constitutionalism itself. You can ask, in other words, whether it is anti-constitutional.
…
President Trump is clearly not restrained by the Constitution. He’s also not restrained by another important element of constitutionalism — an interest in and concern for the future.
“Constitutionalism,” the legal scholar Jack Jackson writes, “both presumes and requires future-oriented commitments.” [5]

[It’s a great opinion piece – you should read it… the gift article link is here]

It’s similar to playing chess, and your opponent tosses over the chessboard.

Our choice of the moment may be to move our queen, not realizing that the other player isn’t willing to be constrained by the same rules.

We need to understand that others are not playing by the rules that we expect. And in the short-term, this may seem like a “no-win” scenario.

The Capitulation of Paul, Weiss

Recently, the multinational law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP (aka Paul, Weiss) found themselves in a short-term “no-win” scenario - targeted by a Trump administration executive order. [6]

The Trump administration took action threatening the law firm, and Paul, Weiss effectively faced two choices: give in, or stand up for themselves.

The firm chose to reach an agreement with Trump to rescind the directive [7] in exchange for pledging $40 million in free legal services to support causes favored by the White House. [8]

However, it’s important to note a couple of things - a deal may only be as good as the parties entering into the deal.

Paul, Weiss Chairman Brad Karp worked with the White House on the terms of the agreement and a public statement. From reporting from the New York Times: [9]

Quotes and images for *Star Wars: Episode V - The Empire Strikes Back*

“According to two people familiar with the matter, the White House and Mr. Karp had reached an agreement on the wording of the statement. But despite that agreement, the wording of the statement changed, including a reference to the fact that the firm would ‘not adopt, use, or pursue and DEI policies.’
“A spokesperson for Paul, Weiss did not respond to a message seeking comment on how the statement changed and Mr. Trump’s statement about how Mr. Karp had criticized Mr. Pomerantz.”

The former Paul, Weiss partner targeted in the original executive order, Mark Pomerantz, left the firm in 2021 to work with the Manhattan District Attorney’s office, eventually leading to Donald Trump’s indictments and his 2024 felony convictions.

Post by HuffPost reporter Matt Shuham on Bluesky, showing differences between Paul, Weiss statements sent to employees and the public statement from the White House [11]

According to reporting by HuffPost, comparing the White House statement and an internal distributed statement to Paul, Weiss personnel: [10]

“Trump’s version includes a statement from the White House, which says, in part, that Karp ‘acknowledged the wrongdoing of former Paul, Weiss partner, Mark Pomerantz, the grave dangers of Weaponization, and the vital need to restore our System of Justice.’
“There’s no version of that sentiment from Karp in the internal version sent to firm employees.”

Reuters reported that “[Mark] Pomerantz, who worked most recently at Paul Weiss until 2022, said in a statement: ‘I engaged in no wrongdoing by working as a prosecutor to uphold the rule of law.’” [12]

Although the firm may have escaped the immediate consequences posed by the Trump administration, Paul, Weiss’s choice is meeting with concern from the legal profession at large. From recent New York Times reporting: [13]

Paul Weiss’s move was a particular point of contention because of the firm’s standing in the legal community. The firm has long been dominated by Democrats and prided itself on being at the forefront of fights against the government for civil rights.
“They have all the resources they need to fight an unlawful order,” said John Moscow, who was a top prosecutor at the Manhattan district attorney’s office under Robert Morgenthau. “The example they are setting is to surrender to unlawful orders rather than fight them in court.”
Lawyers at firms both large and small took to social media to denounce the firm.
“Absolutely shameful and spineless behavior,” one lawyer posted on X.
“This is a time for soul-searching,” another lawyer, who used to work at Paul Weiss, wrote on LinkedIn.
“It’s not too late to leave your firm and find one with a backbone,” said a commenter on Paul Weiss’s corporate LinkedIn page.
Leslie Levin, a professor at the University of Connecticut School of Law, said she was “deeply disappointed” that the firm had struck a deal with Mr. Trump, especially given its history.
Many large firms, she said, are struggling with how to respond to pressure from the Trump administration. But basing decisions on concern about harm to their business goes against key tenets of the legal profession, she said.
“Lawyers are supposed to stand up to the government when there’s an abuse of power, and a firm like Paul Weiss has the capacity to do that,” Ms. Levin said.
Another critic of Paul Weiss’s move, Mark Zaid, a lawyer who represents whistle-blowers, including in a case that led to Mr. Trump’s first impeachment, said, “There are things where principle is stronger than the dollar.”

Paul, Weiss faced a short-term “no-win” scenario; of their choices – to capitulate or to fight – each would lead to negative consequences. They may have avoided the consequences of the moment from the Trump administration, but they will likely suffer longer-term effects as a firm: partners may leave, new attorneys may be less likely to join the firm, and potential clients may wonder if they up for fighting for them when they were so unwilling to fight for themselves.

The short-term “no-win” scenario may lead to making Paul, Weiss a different firm in the future; it’s just a matter of what that firm might look like.

By choosing to bow down, those fearful of short-term consequences may stick around, and the fighters may leave.

By standing and fighting, the fighters may stick with them, and those not up for a fight may leave.

Which firm would be better positioned in the future?

For us, if our outlook is one focused on the long-term – not just the choice of the moment, but the choices yet to come – we can see past what seems like a “no-win” scenario. That means weighing our current choices with the future in mind.

Post by Boston College professor of history Heather Cox Richardson on Bluesky [15]

For us, the Constitution is our future, and the President is not a king. The President is an Article II creation of our Constitution; the Presidency has no “inherent” powers other than those detailed in the Constitution, which spells out “the Proper Checks and Balances Between the Different Departments.” [14]

What’s our lesson? Here’s what I think is needed:

Think of the future
Be creative and think differently
Have the vision for what is right
Find the energy to fight and keep pressing

The rules for how American politics functions in pursuit of “form[ing] a more perfect union” are and have been changing. [16]

We can’t constrain ourselves by what we think worked before. We need to stand up and stand up now. And we need to band together – support others who are standing up now. I think this lays the best foundation to protect our future.

“Join, or Die”

One of the most famous political cartoons came from Benjamin Franklin, publisher of the Pennsylvania Gazette, which in 1754 implored for unity of the American colonies during the French and Indian War. [17]

This cartoon appeared in the Pennsylvania Gazette, a newspaper that Franklin owned from 1729 to 1748 and featured the first printing of the frequently reproduced cartoon, alongside an editorial that Franklin wrote. Colonists revived the cartoon in 1765 to protest the Stamp Act imposed by Great Britain, and the design came to furnish an effective rallying cry for unity throughout the colonies in their fight against the British Empire. [18]

Gadsden Flag, adopted December 20, 1775 [19]

The rattlesnake image was later used as a symbol of the unity of the Thirteen Colonies at the start of the Revolutionary War in the iconic Gadsden flag with the motto “Don’t Tread on Me.” Christopher Gadsden, a delegate to the Continental Congress from South Carolina and brigadier general in the Continental Army, designed the flag in 1775, intending his flag to serve as a physical symbol of the American Revolution's ideals. [19]

American tradition recognizes the need to band together for our common interests: to determine the direction of our nation for ourselves.

Narratives

The book I’m reading or movie I’m watching

“Star Trek II: The Wrath of Khan”

“I don’t believe in the no-win scenario.” – Admiral James T. Kirk, Star Trek II: The Wrath of Khan

The Kobayashi Maru test is introduced in the opening of the movie, with a new Star Fleet Lieutenant Saavik (played by Kirstie Alley) commanding her crew on a bridge simulator. They receive a distress call from the Kobayashi Maru and enter the Klingon Neutral Zone to rescue it.

The crew loses contact with the civilian ship and three Klingon vessels attack. With the bridge crew dead and the ship badly damaged, Saavik orders the crew to abandon ship and the simulation ends.

When Saavik says the test is unfair because there is no way to win, Admiral James T. Kirk (played by William Shatner) replies that a starship captain might face an actual “no-win scenario.”

Later in the film, Kirk reveals that he beat the Kobayashi Maru as a cadet on his third attempt by reprogramming the simulation to make it possible to rescue the ship, and that he does not actually believe in the idea of a no-win scenario. [20]

Of the original Star Trek movies, Star Trek II: The Wrath of Khan is the best (Ricardo Montalbán plays the villain Khan and is amazing – one critic calling it the “greatest role of [Montalbán's] career” [21]), and Entertainment Weekly considered the “no-win” scenario element of the Kobayashi Maru a “top-ten-all-time Trek mythos or anyhow, it’s one of the ten Trek things most regular human beings know about.” [22]

GIF Game

William Shatner as Admiral James T. Kirk in *Star Trek II: The Wrath of Khan*

Notes and Sources

[1] – Will Doran, “GOP-backed effort to toss 60k ballots advances as NC judges weigh election integrity arguments,” WRAL News, March 20, 2025, https://www.wral.com/story/supreme-court-election-lawsuit-challenge-to-65-000-ballots-underway-in-court/21920465/

[2] – “No-win situation,” Wikipedia, retrieved March 22, 2025, https://en.wikipedia.org/wiki/No-win_situation

[3] – “Martin Niemöller: "First they came for...,” Holocaust Encyclopedia, United States Holocaust Memorial Museum, retrieved March 22, 2025, https://encyclopedia.ushmm.org/content/en/article/martin-niemoeller-first-they-came-for-the-socialists

[4] – Ibid.

[5] – Jamelle Bouie, “Trump Has Gone From Unconstitutional to Anti-Constitutional,” New York Times, March 19, 2025, https://www.nytimes.com/2025/03/19/opinion/trump-musk-constitutional-unconstitutional.html?unlocked_article_code=1.5E4.ES9E.iQJkDbyhmvus&smid=url-share

[6] – Donald J. Trump, Executive Order 14237, “Addressing Risks From Paul Weiss,” March 14, 2025, Code of Federal Regulations, 90 FR 13039, https://www.federalregister.gov/documents/2025/03/20/2025-04867/addressing-risks-from-paul-weiss

[7] – Donald J. Trump, “Addressing Remedial Action by Paul Weiss,” Executive Orders, March 21, 2025, https://www.whitehouse.gov/presidential-actions/2025/03/addressing-remedial-action-by-paul-weiss/

[8] - Danielle Kaye, Lauren Hirsch, and Maureen Farrell, “Paul Weiss Deal With Trump Faces Backlash From Legal Profession,” New York Times, March 21, 2025, retrieved March 22, 2025, https://www.nytimes.com/2025/03/21/business/paul-weiss-trump-reaction.html?unlocked_article_code=1.504.POWL.95eaf5-9D2HA&smid=nytcore-android-share

[9] – Michael S. Schmidt, “Law Firm Bends in Face of Trump Demands,” New York Times, March 20, 2025, https://www.nytimes.com/2025/03/20/us/politics/paul-weiss-deal-trump-executive-order-withdrawn.html

[10] – Matt Shuham, “Trump And A Powerhouse Law Firm Are Telling Different Stories About Their Shocking Agreement,” HuffPost, March 21, 2025, https://www.huffpost.com/entry/paul-weiss-agreement-white-house-differences_n_67dda2cae4b00872325325f5

[11] – Matt Shuham [@mattshuham.bsky.social‬], Bluesky, March 21, 2025, https://bsky.app/profile/mattshuham.bsky.social/post/3lkvtfglztk2m

[12] - Jasper Ward and Mike Scarcella, “Trump withdraws order targeting Paul Weiss, says law firm promised free legal work,” Reuters, March 21, 2025, https://www.reuters.com/world/us/trump-withdraws-executive-order-targeting-paul-weiss-law-firm-2025-03-20/

[13] – Kaye, Hirsch, and Farrell, “Paul Weiss Deal With Trump Faces Backlash From Legal Profession”

[14] - James Madison, “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments,” Federalist No. 51, 1788, https://guides.loc.gov/federalist-papers/text-51-60#s-lg-box-wrapper-25493427

[15] – Heather Cox Richardson [@hcrichardson.bsky.social‬‬], Bluesky, March 17, 2025, https://bsky.app/profile/hcrichardson.bsky.social/post/3lklh76ommk26

[16] – United States Constitution, Preamble.

[17] - “The story behind the Join or Die snake cartoon,” National Constitution Center, May 9, 2024, retrieved March 22, 2025, https://constitutioncenter.org/blog/the-story-behind-the-join-or-die-snake-cartoon

[18] – “‘Join or Die. Symbol of the Colonies,’” published in the Pennsylvania Gazette,” Polonsky Exhibition of The New York Public Library's Treasures, New York Public Library, March 15, 2025, retrieved March 22, 2025, https://www.nypl.org/events/exhibitions/galleries/fortitude/item/5486

[19] - “Gadsden flag,” Wikipedia, retrieved March 22, 2025, https://en.wikipedia.org/wiki/Gadsden_flag

[20] - “Kobayashi Maru,” Wikipedia, retrieved March 22, 2025, https://en.wikipedia.org/wiki/Kobayashi_Maru

[21] – Christopher Null, “Star Trek II: The Wrath of Khan,” FilmCritic.com, archived on July 28, 2002, from FilmCritic.com website via Internet Archive Wayback Machine, retrieved March 22, 2025, https://web.archive.org/web/20120527134658/http://www.filmcritic.com/reviews/1982/star-trek-ii-the-wrath-of-khan/?OpenDocument

[22] – Darren Franich, “Star Trek II: The Wrath of Khan is a movie about acting,” Entertainment Weekly, May 6, 2016, https://ew.com/article/2016/05/06/star-trek-ii-wrath-khan-geekly/

Decisions with Mic Farris

Seek Truth. Honor Differences.

Kobayashi Maru