President Joe Biden has just named his first nominee to the United States Supreme Court: Ketanji Brown Jackson, who, if confirmed, will replace retiring Justice Stephen Breyer. Jackson has by every account lived an exemplary life, achieved astonishing professional heights, and done so while scrupulously attempting to adhere to the highest personal and professional ethical standards, as well as the judicial canons of neutrality and the appearance of nonpartisanship. Nevertheless, in the coming weeks, every single aspect of her life will be combed through—every client she’s represented, every speech she’s given, every donation, every opinion, every board she has served upon. There will not be a single word or deed of Jackson’s that isn’t mined for hidden political meaning, covert expressions of secret ideology, and potential bias.
In the coming weeks and throughout the confirmation process, the nominee will be required to present herself as a human whiteboard, serving up a lifetime devoid of political preferences, ideas, or preconceptions.
Across the street, at the Supreme Court, the story is quite different. Two pieces of groundbreaking reporting—first from Jane Mayer in the New Yorker in January, then another this week from Danny Hakim and Jo Becker in the New York Times—provide spectacularly detailed investigations into the conflicts of interest presented by Clarence and Ginni Thomas’ partisan political activities and causes. These deep dives, which include a mountain of evidence about the ways in which the couple has worked together to mix his extreme law with her extreme politics, have largely been met with a collective public shrug. Maybe because everyone knew all this already, absent the names and dates and details, or maybe because there’s simply no mechanism to do anything about it. Since the justice is bound by no enforceable ethics rules, the fact that his wife actively works on cases he decides, supports amicus briefs he reads, and coordinates causes he favors is the source of sighs and “there they go again” ennui among the nation’s court-watchers.
Yet both investigations detail a five-car pileup of ethics violations from which no one should turn away. As the New York Times wrote of Ginni: “In addition to her perch at the Council for National Policy, she founded a group called Groundswell with the support of Stephen K. Bannon, the hard-line nationalist and former Trump adviser. It holds a weekly meeting of influential conservatives, many of whom work directly on issues that have come before the court.” Ginni, says the Times, played a “peacemaking role between feuding factions” of Jan. 6, 2021, rally organizers. She also “co-signed a letter in December calling for House Republicans to expel Representatives Liz Cheney and Adam Kinzinger from their conference for joining the Jan. 6 committee.”
Of course, some of her work to keep Trump in office even after he lost the 2020 election would have inevitably landed on the steps of the Supreme Court, just as matters surrounding the congressional investigation into those events have already been decided there. The court ruled 8–1 this January to allow the release of Trump’s records connected to the insurrection. By any measure, his conflict here is stunning. The Times describes a Federalist Society event celebrating Clarence Thomas, with a triumphal speech by Donald Trump’s former White House counsel Don McGahn, the guy who refused to obey a congressional subpoena, and whose case also went before the federal courts and could have landed at the Supreme Court. (Indeed, that case, decided at the district court by one Judge Ketanji Brown Jackson, will be one of the main sources of GOP opposition to her.)
The Thomases like to reassure us that they each stay in their lane; that Ginni has no influence over her husband’s judicial decisions; that even if she did, it doesn’t matter what their politics are because he is, after all, just coolly applying the law. Clarence Thomas, however, “believes that human beings have free will to chart our own course,” Helgi Walker, a former Thomas clerk, told the New York Times. “And I have no doubt that applies, perhaps especially so, to his wife.” That said, she added, he “takes direction from no one but the law.” That judicial ethics rules don’t matter anymore so long as one “takes direction from the law” should be good news for Jackson, were there a single standard applied to all jurists.
But you heard it here first: The standard that will be applied to her will be that she’s profoundly biased and unfit to judge, and that nothing she says or does can fix it.
Imagine, if you will, a confirmation hearing next month at which nominee Jackson cheerfully says: “Don’t worry about anything I say or do, it’s all good, I’m just staying in my lane and ‘taking direction from the law.’ ” Imagine a line of questions to Jackson from her old classmate Ted Cruz, attempting to ferret out her political views, that ends with “Oh, never mind, I see that, like Justice Thomas, you are allowed to do and say whatever you want once confirmed anyhow.”
No such exchange will occur at Jackson’s hearing, though, because Democrats’ judicial nominees do not play by the same rules as Republicans’. Brett Kavanaugh cut his teeth as a GOP operative, pushing Ken Starr to humiliate Monica Lewinsky, then helping George W. Bush to win the 2000 election at SCOTUS. Amy Coney Barrett pitched in to the Bush v. Gore team too. And it’s almost impossible to count how many of Donald Trump’s lower court nominees spent their careers doing overtly partisan legal work for the Republican Party before joining the bench. All of these partisans swore that the moment they donned a black robe, they would leave their political biases behind. Spoiler: They didn’t.
After embracing these political operatives for four years, Senate Republicans abruptly flipped their standards once Biden took office. They will now scour Jackson’s record for the slightest whiff of partisanship and smear her with guilt by association. This process has already begun: Senate Minority Leader Mitch McConnell released a statement on Friday criticizing Jackson for being “the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the Court itself.”
In reality, McConnell himself is the only modern lawmaker who successfully altered the court’s structure by shrinking its membership to eight justices for more than a year. And his party mastered the art of using dark money to promote SCOTUS nominees under Trump. But McConnell’s DARVO jiujitsu only confirms that Republicans have no real case against Jackson. They will simply say that Democrats like her, and that fact must be enough for Republicans to hate her. Sen. Lindsey Graham, who voted to confirm Jackson to her current appeals court last year, has already complained that with her nomination “the radical Left has won.” Wait, what? Oh, right, when Federalist Society candidates tell us they’re suddenly neutral after a lifetime of hackery, it’s to be believed. When a Democratic nominee has spent a lifetime eschewing radical political causes, she’s a subversive liar and political hack.
Imagine, just for fun, what Republicans would say about Jackson if her spouse were a literal D.C. lobbyist whose close associates appear before the Supreme Court, who regularly promoted paranoid and delusional conspiracy theories, who lobbied the White House to toss out patronage jobs to her friends and bragged about having access to federal judges. When Ginni Thomas does such things, Republicans shrug. But this singular Thomas standard does not apply to Democrats, and it certainly does not apply to Democratic women of color. It is acutely demoralizing to watch the GOP prepare an attack on Jackson’s spotless record just as a flood of new reporting details the bottomless corruption of a sitting justice with lifetime tenure who will never be disciplined because he answers to nobody.
If Republican senators were consistent, they wouldn’t bother even trying to evaluate Jackson’s alleged secret political agenda in the coming weeks. Clarence Thomas’ career on the bench and his practice of flouting every ethical rule and canon suggest that this scrutiny matters not at all; once you are confirmed, you may do as you wish without consequences. That rule would terrify them if they applied it to their own judges. Until that day comes, there’s no reason to pretend that Jackson’s hearings are anything more than political theater. In the Senate, Republicans will question whether she is truly independent and ethical. Jackson will prove to be a fair-minded and apolitical justice. But as Thomas has now proved beyond all doubt, all she must do is play that role for the next few weeks, at which point she can then do whatever she wants, forever, with impunity.