Left-wing outrage about the Supreme Court justice’s attendance at a party affiliated with a conservative group is highly selective.
Left-wing outrage about the Supreme Court justice’s attendance at a party affiliated with a conservative group is highly selective.
T he latest contrived tantrum over a supposed breach of ethics on the Supreme Court comes after Politico reported that Justice Brett Kavanaugh recently attended a private Christmas party at the home of American Conservative Union chairman Matt Schlapp. Not surprisingly, a number of prominent conservatives were in attendance, including veterans of the Bush and Trump administrations. Kavanaugh himself is a veteran of the Bush administration, during which he served as White House staff secretary.
I would say that liberal commentators went into overdrive except that it has become standard operating procedure for them to invent fake ethical standards, applied selectively to conservatives. (I previously commented on this phenomenon here, here, and here.) The Washington Post’s Ruth Marcus devoted a column to how the Christmas party “feeds into a perception of the court, fairly or not, as an institution tainted with partisanship.” “This is the worst possible time for this,” professor Charles Geyh of Indiana University Maurer School of Law is quoted as saying in a Bloomberg Law article titled “Kavanaugh Holiday Party Appearance Raises Ethics Questions.”
Yes, the timing is particularly bad . . . from the perspective of those on the left who are unhappy that a majority of the Court has recently been setting a pathbreaking record following the law in cases that for too long were decided according to justices’ own policy predilections. This is the same mindset that attacks the Court’s legitimacy for overturning illegitimate precedents on which the Left long relied for the purpose of short-circuiting legislatures that would not give them their way. The same commentators who recklessly attack legitimacy are prone to make flimsy arguments about ethics.
The timing is actually good for such critics to be attacking Supreme Court justices who are currently serving, because that focus excludes past liberal justices such as Ruth Bader Ginsburg and Stephen Breyer, who faced bona fide questions of ethical breaches beyond anything alleged against members of the conservative bloc. And as associating with partisans went, Ginsburg lent her name to a lecture series co-sponsored by the NOW Legal Defense and Education Fund and appeared on a panel with Bill and Hillary Clinton at another lecture series named for her. Those justices — as well as Sonia Sotomayor and Ketanji Brown Jackson — have all spoken at the liberal American Constitution Society while serving on the bench..
As the more innocuous context of parties goes, the liberals have a rich enough social life. Justice Sotomayor had a birthday party in the White House Counsel’s office, attended a softball game with Nancy Pelosi, and dined with first lady Michelle Obama and the U.S. ambassador to Uruguay. The New Yorker reported that Justice Kagan attends “dinner parties and meals out with friends, many of them lawyers, judges, and journalists.” This includes attending the birthday party of Ron Klain, chief of staff to Joe Biden as vice president and later as president, and holiday parties hosted by the solicitor general and the White House. Oh, and ironically, Kagan was also spotted at a birthday party with Ruth Marcus.
Such facts usually flit through articles about those justices without the innuendo of impropriety, let alone occasioning entire articles that attempt to raise a faux ethical question. Of course, Justice Kavanaugh is part of a different dilemma: Instead of having ties to the Clinton and Obama administrations and attending Ron Klain’s birthday party, more and more justices have ties to the Bush administration and attend parties with friends who work at Jones Day.
For too many commentators who pose as judicial ethicists, that trajectory is ominous.
Editor’s note: This piece has been emended since its original publication.