Democrats’ legal strategy in the Virginia redistricting dispute, if measured against the standards they imposed on Republicans, would warrant the professional ruin of everyone involved. The contrast is most directly illustrated by the case of John Eastman, a constitutional scholar and lawyer for President Trump who authored two memoranda outlining constitutional theories related to the disputed 2020 election.
The destruction of Eastman’s career was presented as constitutional self-defense. He was not merely portrayed as a lawyer advancing flawed arguments under unprecedented political circumstances, but as someone who had crossed an impermissible line. He was stripped of his law license, financially devastated, and cast as a “threat to democracy.”
Yet only a few years later, many of the same political and media institutions that demanded Eastman’s destruction are now defending, minimizing, or simply ignoring conduct that is functionally similar in principle and significantly more aggressive in practice.
The Virginia redistricting dispute, and particularly the extraordinary strategies reportedly discussed by Virginia Democrats, as well as House Minority Leader Hakeem Jeffries, D-N.Y., and his allies, reveal the scale of the double standard with remarkable clarity. What is unfolding is not just partisan hardball but the normalization of constitutional lawfare, openly justified because it is being undertaken by the “correct” political faction.
The Eastman Standard
To understand the comparison, it is important to begin with what Eastman actually did, rather than the caricature that subsequently emerged around him.
Following the 2020 election, Eastman advanced the theory that Vice President Mike Pence possessed authority under the 12th Amendment to delay or reject disputed electoral votes during the certification process. Critics condemned the theory as historically unsupported and constitutionally unsound. But whatever one thinks of the argument itself, Eastman’s conduct remained fundamentally legalistic in nature. He produced constitutional memoranda advancing an aggressive interpretation of existing constitutional procedures during an unprecedented political crisis. His theory relied upon persuading a constitutional officer, Pence, to adopt a novel reading of existing law.
The argument may have been flawed, but it remained, at its core, an argument about the interpretation of constitutional process.
What has now emerged in Virginia goes considerably further.
The Virginia Court-Purge Strategy
Strategy discussions involving Virginia Democrats, Jeffries, and other Democratic officials reportedly explored an extraordinary plan after the Virginia Supreme Court invalidated a congressional map favorable to their party. Rather than limiting themselves to appeals, the discussions involved lowering the mandatory retirement age for Virginia Supreme Court justices from 73 to 54, precisely the threshold necessary to immediately remove the entire sitting bench. A temporary legislative majority could then refill the court with sympathetic judges who would reverse the redistricting decision.
Eastman was accused of attempting to exploit a procedural ambiguity within an existing constitutional rule. The Virginia strategy contemplates the effective liquidation of an entire branch of government in order to obtain a preferred political result. Eastman sought to persuade a constitutional actor. The Virginia plan seeks to remove the constitutional actors altogether and replace them with more compliant ones.
One can reasonably argue that Eastman advanced an unsound constitutional theory while still recognizing that what is being contemplated in Virginia represents a far more direct assault on institutional integrity itself. If legislatures may retroactively manipulate retirement rules in order to purge courts that issue politically inconvenient rulings, then judicial independence effectively ceases to exist as a meaningful constitutional principle. Courts become temporary instruments of legislative majorities rather than independent constitutional bodies.
What makes the comparison to Eastman even more revealing is the rhetoric surrounding the effort. According to reporting, Jeffries framed the situation in apocalyptic terms, declaring that Democrats needed to engage in “maximum warfare, everywhere, all the time.” Another Democrat warned colleagues that “this is a complete disaster waiting to happen if people are timid.” This is openly militant political rhetoric attached to discussions about restructuring an entire state supreme court in order to reverse an unfavorable ruling.
The New York Times described the plan as an “audacious and possibly far-fetched idea.” Had Republican officials discussed removing sitting judges in order to create a preferred electoral map, the media would almost certainly have characterized it as an assault on democracy itself. Had Republicans used comparable language, the reaction would likely have been even more apocalyptic.
At the same time, Virginia Democrats petitioned the United States Supreme Court with frivolous arguments that were immediately rejected out of hand. Even Justice Ketanji Brown Jackson, no stranger to advancing absurd positions, did not register any objection. Unsurprisingly, Virginia Democrats, led by Gov. Abigail Spanberger, used the prompt rejection to chastise the court, despite having advanced arguments that were, on their face, legally indefensible.
Lawfare for Some, Disbarment for Others
The role of lawyers in both episodes makes the double standard even more glaring.
Eastman was disbarred on the theory that aggressive constitutional innovation itself represented a profound danger to democracy. Yet the Virginia filings and strategies advanced before the U.S. Supreme Court were themselves signed and defended by lawyers advancing highly novel and institutionally aggressive theories. Those arguments were summarily rejected, but they nevertheless provided Virginia Democrats with a rhetorical platform to attack the court after the fact. The lawyers involved advanced legal positions designed to overturn or circumvent settled constitutional structures in pursuit of a political outcome.
And yet no one seriously suggests that these lawyers should lose their licenses. No major media campaign calls for their professional destruction, and no coordinated effort within elite legal circles seeks to render them unemployable, discredited, or morally radioactive in the way Eastman is treated.
Instead, much of the coverage surrounding these efforts has framed them as audacious, creative, or strategically necessary responses to political frustration. The same institutional class that treated Eastman’s constitutional arguments as uniquely disqualifying now treats dramatically more aggressive maneuvering as merely another form of partisan conflict.
The deeper issue exposed by these events is that the Eastman precedent was never really about constitutional novelty as such. American constitutional history is filled with theories once dismissed as absurd before later becoming accepted doctrine. Nor was it truly about institutional hardball, because the Virginia episode plainly involves institutional hardball on a far greater scale.
What ultimately made Eastman unforgivable was that his constitutional aggression was deployed in service of Donald Trump and the political right.
That is the principle now operating in practice.
Aggressive constitutional maneuvering undertaken on behalf of disfavored political causes is treated as disqualifying extremism and ethical misconduct. Comparable or even more radical maneuvering undertaken on behalf of favored political causes is reframed as democratic self-defense.
The Virginia controversy exposes this asymmetry with unusual clarity because it mirrors the precise institutional logic that destroyed Eastman. In both cases, political actors searched for latent constitutional leverage points capable of overturning an unfavorable outcome. In both cases, lawyers advanced aggressive theories aimed at bypassing ordinary institutional constraints. In both cases, democratic legitimacy was invoked to justify extraordinary constitutional intervention. But only one side faces professional annihilation for doing so.
