Elizabeth Warren, the Senator from Harvard Law School, has a plan—of course she does—for guaranteeing an “impartial and ethical judiciary” based on “the basic premise of our legal system,” which is “that every person is treated equally in the eyes of the law.” Shortly before its unveiling, she tweeted a promise to nominate “a demonstrated advocate for workers” to the Supreme Court.
In other words, she seeks a justice who would violate Canon 3 of the Code of Conduct for United States Judges, which requires jurists to disqualify themselves from cases in which they have “a personal bias or prejudice concerning a party.” The Code does not apply to the Supreme Court, but buckle up: The aforesaid “plan for that” would extend the ethical rules to the Supreme Court, which means Warren is promising to appoint justices whose conduct she will seek to classify as unethical.
This tangle of contradiction—as to her plans, Warren likely wants us to behold the magnificence of the forest, not the individual trees—illustrates the outcome-based constitutionalism that has infected American jurisprudence. It may be true, as Chief Justice John Roberts has said, that we do not have Obama judges or Trump judges. But we are apparently supposed to have worker judges or employer judges, abortion judges or gun judges.
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