Progressive Prejudice Against the Judiciary

Judges are apparently supposed to live monastic existences. And whatever they do, they shouldn’t stay current on the law. At least that’s the implication from the latest progressive attack on conservative jurists.

The leftwing outfit Fix the Court is at it again, this time in a letter to Judge Roslynn Mauskopf, Secretary of the Judicial Conference that administers the federal courts. The Aug. 10 complaint says that dozens of Republican-appointed appellate judges have reported participating in educational events sponsored by the likes of the Law & Economics Center at the Antonin Scalia Law School and the Judicial Education Institute. Oh, no, better call the cops.

The Judicial Conference’s ethics guidelines require, among other things, that judges disclose when private organizations pay more than $480 for their travel, food, lodging and other expenses for attending educational-related programs. Fix the Court perused these disclosures and didn’t like what it found.

Seminars are “becoming more overtly ideological,” Fix the Court says. By ideological, it means intellectual. The outfit complains they are often held at high-end hotels in remote locations. This “appears inconsistent with Canon 2 of the Code of Conduct for U.S. Judges, which states, ‘A judge must avoid all impropriety and appearance of impropriety in all activities.’”

Fix the Court doesn’t elaborate on the impropriety. But it points to a colloquium sponsored by the Scalia Law School at a “resort” in Girdwood, Alaska. The daily rates there are about the same as at an Embassy Suites in Washington, D.C. Yet the letter grouses that “it’s unclear why this symposium had to be conducted in the 49th state.”

Perhaps because judges and legal scholars enjoy the great outdoors. Where are they supposed to meet? How about a practicum in San Francisco’s open-air drug markets about the destructive impact of the Ninth Circuit Court of Appeals’s rulings that read a right to vagrancy into the Constitution?

Fix the Court also complains that the Alaska event featured our columnist Kimberley Strassel, “who unironically gave a talk titled ‘Media Attacks on Judges and the Campaign to Delegitimize the Judiciary’ just months after referring to Justices [Elena] Kagan and [Sonia] Sotomayor as ‘radical judges.’”

Fix the Court linked to a video of Ms. Strassel on “WSJ at Large” after Justice Stephen Breyer announced his retirement. She didn’t call Justices Kagan or Sotomayor radical. She merely said a more radical liberal block might embolden conservative Justices. Her analysis is a far cry from the baseless campaign to delegitimize conservative Justices that Fix the Court has been leading.

It’s notable that Fix the Court singles out Republican-appointed judges, as if Democratic-appointed judges have never attended seminars at nice hotels. “But there’s nice, and then there’s nice,” the outfit writes. Do progressives have a judicial balancing test to determine when hotels are too nice?

Fix the Court also takes aim at seminars focusing on originalism, the judicial philosophy of interpreting the U.S. Constitution based on its original meaning. “With all of this method’s practitioners on one side of the ideological divide, we question whether such an event comports with ethical norms and the goals of legal education,” the letter says.

Originalists aren’t a secret society, and originalism doesn’t result in pre-ordained outcomes, as the different opinions by Justices Clarence Thomas and Neil Gorsuch, among others, have made clear. Even liberal judges employ the method from time to time in their opinions, even if they come to different outcomes.

Fix the Court claims to be nonpartisan, yet its ethics complaints against judges swing one way. Its latest salvo is a partisan drive-by strafing that the Judicial Conference would do a public service by ignoring.