I had already decided to shut down my commentary for the day (judging from the traffic, I see that a lot of people are starting their Memorial Day Weekend early) when I saw a fascinating note on The Volokh Conspiracy, and I just can’t let it pass, since it puts the two posts (here and here) about the “Get Alito!” flag fixation in proper perspective.
Josh Blackman, a regular contributor to VC, a constitutional law professor at the South Texas College of Law Houston, and the president of the Harlan Institute, reminded readers about something that occured the day after election day in 2016, November 9. The Supreme Court was in session, and Justice Ruth Bader Ginsburg wore the jabot she only sported when dissenting from a majority opinion. Ginsberg herself had explained her sly fashion messaging in in 2014:
but in this case there was nothing to dissent from other than the obvious: Donald Trump, whom Ginsburg had called “a faker” before the election, had defeated Hillary Clinton. The Associated Press got the message and reported on it.
Unlike the Alito flags, there is no question about who was making the political statement regarding President Trump: it was Justice Ginsburg. Nobody fooled her into wearing that collar. A relative didn’t wear it, she did. Nor was the symbolism of the collar in question: Ginsberg herself had said exactly what it meant. This was a far less ambiguous and far more serious display of bias by a SCOTUS justice than the contrived flag outrage, yet no Republicans in Congress exploited the incident to call for Ginsburg to recuse herself from future cases, or to move for a Congressional censure.
Ah, but Ginsburg was a news media favorite, female, progressive, Democrat and cute in her casual and repeated crossing of the lines of judicial propriety. I have to check, but I don’t recall the members of my legal ethics expert association registering any problem with Ginsberg’s open protest of Trump’s election, while the listserv has been roiling over Alito’s flags all week, with Ginsberg-adoring female members being particularly indignant.
At the last second I deleted a comment I was ready to make yesterday after following the hypocritical thread. It read, “I’m sorry, but the partisan bias and hypocrisy being displayed here by alleged legal ethics scholars isn’t just depressing, it’s disgusting.”
Blackman concluded, “I have a very, very difficult time taking the outrage over the Alitos’ flags seriously. The Justices routinely convey messages through their words and deeds. Who gets to decide what is an appearance of impropriety? People who are inclined to despise the conservative Justices will draw the worst possible inferences from all of their acts….These people are loathe to co-exist with anything they disagree with, so will take umbrage at the slightest sleights.”
In contrast, I take it very seriously. The Double standard harshly demonstrates how little integrity and honesty exists even among our most trusted professionals.
Ethics Alarms 
Ok, fess up, who are you going to vote for, if its Biden v Trump?
It isn’t Biden vs Trump. It is a dangerously totalitarian-tending party that has abandoned basic democratic principles and has made it clear that it will use its power to undermine the Bill of Rights and the Constitution, vs. a single individual of the sort who should never be a national leader and whose character makes him impossible to trust or feel secure about having him wield the power of the Presidency. A whole corrupted and anti-democratic system and ideology against a single unfit individual, who at lease in his previous term did more good than damage, and was infinitely more successful than the current incumbent.
With the choice frame (correctly) like that, what do you think is the rational choice?
Well said, as always, and thanks, you confirm my choice, I will vote for Trump. Then I will go and throw up.
Was his first term puke worthy? He had a heck of a time finding competent help, primarily because almost no one wanted to risk their careers in the swamp by taking positions in his administration. But the people who did work for him did get rid of a lot of carnage created by Dem regulators and government employees. He simply ground a lot of the insanity to a halt for four years. But don’t worry, the fix is in. A Republican will never win a presidential election again, forever and ever, Amen.
You just said he was not fit to be a national leader…
He’s not, and never has been, and never will be. He is, however, what there is.
“I am shocked, shocked I tell you that Ginsberg was not …” Wait. I can’t go on any further. Of course she wasn’t called on anything she did. She was The Notorious RBG!
Mrs. OB and I were at a performance at the Santa Fe Opera, probably a year or two before RBG finally, er, left the bench. She evidently went to the Santa Fe Opera with a niece every summer. She was completely crippled over and hobbled into the massive, open-air room to a standing ovation, a conquering heroine. Of course, opera buffs are almost uniformly lefty in their own right, but also as a result of being largely gay. I’d hazard to guess opera is for gay guys what the NFL is for straight guys. Maybe not as much as Broadway musicals, but I’ve gone to almost none.
This whole kerfuffle about flags has been driving me crazy, and it’s not just the blatant double standard. It’s that it’s just the latest part of the media’s campaign to miseducated the public about the legal system and the judiciary.
This is not what recusal is, or what it is for. All judges are pretty much assumed to have political opinions, and fulfill their duty as citizens to vote in elections. We assume they will have history and contacts from working in the legal community, and they will have family and friends, and that all these people will also have political opinions. To be impartial does not mean they must be blank slates. It does not mean they must have no connection to other human beings unless those people are blank slates as well. Recusal is meant to be used when there’s a conflict of interest, not a difference of opinion. It’s for when the judge is closely connected to one of the parties or their counsel, not for when you can draw six degrees of separation between them.
Kim Strassel’s weekly OpEd in the WSJ is worth reading:
A Flagging Campaign Against Justice Alito
https://www.wsj.com/articles/a-flagging-campaign-against-the-supreme-court-alito-jan-6-a545cd69?st=vxjk03y2uilw318&reflink=desktopwebshare_permalink
Here are a couple of excerpts:
“The British know the risk of over-egging a pudding, but the partisan left has yet to learn the culinary art of politics. The growing absurdity of its campaign against the conservative majority on the Supreme Court is providing Americans all the excuse they now need to tune out this debate.”
“This desperation belies any claim that the left’s interest is in ethics at the high court. The nonstop attacks—week after week—are aimed at altering the outcome of high-profile cases currently in front of the court, including Donald Trump’s claim that presidential immunity shields him from criminal charges related to the Jan. 6 riot. If the activists could force a recusal or two, they might sway a decision. If they fail, as they almost certainly will, they will continue smearing the court and casting doubt on the legitimacy of its decisions, with the longer-term aim of enacting legislation to pack the court by adding new justices when the Democrats control the White House and Congress.”
Playing the long game.
What we are seeing is an escalation of the tactics the Left has been pushing for the last year. The more polls show Trump ahead, the more we will see contrived, ethically dubious attacks on the one branch of government not yet completely committed to treating the Constitution as toilet tissue.
I have enjoyed this tempest in a teacup. It is risible, shows the Democrat politicians (particularly in the “deliberative” Senate) in a light even worse than I previously held them, and demonstrates the lengths that the Left will go to blacken the name of anyone who disagrees with them in any jot or tittle.
When the Left tells you who they are, either through words or actions, you should believe them. When leftists like Kathy Hochul disparage everyone who might not vote for Democrats, you should take note, because she means it.