Ruth Bader Ginsburg, 83 years old and still mourning the passing of her "best buddy," Justice Antonin Scalia, doesn't give a damn what anybody thinks about decorum. On the Friday before Independence Day weekend, she unburdened herself on the candidacy of Donald Trump in 2 high profile interviews (The New York Times and Associated Press). Andrew Liptak of the NYT wrote of his interview in her Supreme Court chambers::
Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.
These days, she is making no secret of what she thinks of a certain presidential candidate.
"I can't imagine what this place would be - I can't imagine what the country would be - with Donald Trump as our president," she said. "For the country, it could be four years. For the court, it could be - I don't even want to contemplate that."
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.
"'Now it's time for us to move to New Zealand,'" Justice Ginsburg said, smiling ruefully.
Now, the female Justice, a beloved icon to many on the Left, is facing blowback for her violation of etiquette. Aaron Blake of the Washington Post writes:
"I find it baffling actually that she says these things," said Arthur Hellman, a law professor at the University of Pittsburgh. "She must know that she shouldn't be. However tempted she might be, she shouldn't be doing it."
Similarly, Howard Wolfson, a former top aide to Hillary Clinton and former New York City mayor Michael Bloomberg, said Ginsburg shouldn't have said it.
I ❤️ RBG but I don't think our Supreme Court justices should be publicly offering their opinions about POTUS candidates.
- howard wolfson (@howiewolf) July 11, 2016Has a SCOTUS justice made an endorsement like this before? https://t.co/ARHBNLBuoP
- Jonathan Chait (@jonathanchait) July 11, 2016Of course, Ginsburg is a progressive so she thinks she can get away with it. Were Clarence Thomas to insert himself in a presidential race, there would be an organized movement to impeach him, with massive media coverage. But Ginsburg is also issuing an open invitation for demands that she recuse herself in the future, should the unthinkable happen and Trump wins, or contests a decision.
[Justices] have to hear cases involving political issues and people. Having offered their unprompted opinions about such things can lead to questions about prejudice and potential recusal from future cases.
As Greenfield notes, Ginsburg was a part of the court that decided who the president was when the 2000 election was thrown to the Supreme Court, so this isn't uncharted territory. Had she said something similar about either Bush or Al Gore, would she have been able to hear the case?
Louis Virelli is a Stetson University law professor who just wrote a book on Supreme Court recusals, titled "Disqualifying the High Court." He said that "public comments like the ones that Justice Ginsburg made could be seen as grounds for her to recuse herself from cases involving a future Trump administration. I don't necessarily think she would be required to do that, and I certainly don't believe that she would in every instance, but it could invite challenges to her impartiality based on her public comments."
Hellman said Ginsburg's comments could muddy the waters when it comes to decisions not just involving Trump but also his policies - something that could come up regularly should he win the presidency.
"It would cast doubt on her impartiality in those decisions," Hellman said. "If she has expressed herself as opposing the election of Donald Trump, her vote to strike down a Trump policy would be under a cloud."
Ed Whelan, president of the Ethics and Public Policy Center and who once clerked for conservative Justice Antonin Scalia, has criticized Ginsburg before for her public comments. But he said this one is more indefensible than any of its predecessors.
"I think this exceeds the others in terms of her indiscretions," Whelan said. "I am not aware of any justice ever expressing views on the merits or demerits of a presidential candidate in the midst of the campaign. I am not a fan of Donald Trump's at all. But the soundness or unsoundness of her concerns about Donald Trump has no bearing on whether it was proper for her to say what she said."
Ginsburg's willingness to risk calls for recusal illustrates the ambient level of Trump Derangement Syndrome among the nation's elites. They are not just opposed to him, they are offended at his candidacy. Trump merits no protection from conventional ethics and practices. The refusal to follow the conventional rules is a sure sign of actual, clinical derangement.
With Ginsburg, we have to remember that earlier in Obama's second term, there was some public discussion on the left that Ginsburg should retire, so a younger leftist could take her seat. Having survived breast cancer, Ginsburg was in no way anxious to declare her life over and retire into political irrelevance.
In the end, it will be up to Ginsburg to recuse herself, and given her feistiness lately, she might simply ignore the calls to do so.
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