All of the ethics complaints against Kavanough were dismissed a few weeks ago. So the headlines said. In the stories, if one read far enough, one learned that the complaints were dismissed because the entity considering the complaints determined that it did not have jurisdiction. The merits of the complaints were left untouched. The entity, a special committee of the 10th Circuit Court of Appeals, had no choice really. None of the ethics rules apply to a Justice of the Supreme Court. Once confirmed, there was no jurisdiction to consider the complaints. It is a curious state of affairs. The Justice each for her or himself decides whether they have violated some ethics norm. No rules are applied, and each is his or her own judge. The late Justice Scalia would take paid hunting trips (recall the location of his death), catch rides of private planes, and so on. Justice Thomas' wife is a political activist on issues that appear before the Supreme Court. Nether saw a problem with the situation. It seems to me a bit of a scandal, but of a piece with both the quasi-religious nature of the Court and its practices, and the idolatry of prestige. Although I suppose there are other positions for which there are no rules of conduct, none come to mind. CEOs lose their jobs over misconduct and conflicts (admittedly on rare occasions), and even other judges (extremely rarely, but still). There is someone to complain to and someone charged with investigating the complaints. Except the Saints of the High Bench. For them, no standards. I cannot see what argument could be made persuasively for this situation.
It could be cured. The Supreme Court could promulgate a set of rules of conduct, and create a body to examine complaints. It could set the sanctions for misconduct. Or it could be done by statute. There is nothing in the structure of the court system that prevents this, nor in the Constitution. Certainly not in an originalist Constitution, or on a living constitution view. Such an arrangement would, however, detract from the mystery of the Saints, all of whom always are wonderously smart, kind, generous, great persons. Their former clerks, whose careers are made by having been by selected as clerks, say so. Well, at least so long as the justice is not dead at least fifty years. To be less petty in expression, there is no reason to think the Justices are Saints, or really much different or better than the rest. They have conflicts, they have cognitive biases and blind spots. We could do something about the conflicts and the ethics, to help them. Fair hearings, after all, are what most say they want.
Oh, one complaint, or one more, on a related topic. The Solicitor General is not a General. His or her assistants are not colonels or captains.
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