Three Cheers For Justice Ginsberg! Or not …

Supreme Court Justice Ruth Bader Ginsburg, in addition to being a Supreme Court Justice, is also a citizen, a taxpayer and a voter.  And she, like all the rest of us, has an opinion about the upcoming election and the candidates, specifically da trumpeter:

ginsberg-trump“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president, for the country, it could be four years. For the court, it could be — I don’t even want to contemplate that. He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

Pretty mild, if you ask me (compared to much of what I have said about the same candidate).  My initial reaction was a fairly substantial chuckle, and a desire to know more.  In feeding that desire to know more, I have had to temper my chuckle with some concerns, but beneath those concerns there is still a remnant of the chuckle, if for no other reason that because her comments really annoyed the heck out of the thin-skinned trumpeter!

Article III, Section I of the U.S. Constitution provides that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”  It is this that provides judges and justices with a lifetime tenure (assuming “good behaviour”) and also states that their salaries cannot be decreased during their tenure.  The reason for this clause is to allow justices to remain Independent from the legislature, to remain above partisan politics.  But does this mean that they are completely non-partisan?  No, of course not, especially in their personal lives.  But it does mean that they should be cautious about expressing partisan views, particularly as they may apply to cases that are or might come under their review.

All of which I agree with, at least in theory.  The courts, especially the Supreme Court, need to be above the dirt and grime of partisan politics in order to be completely fair and impartial.  That said, the justices are also human beings.  They are, as I mentioned above, citizens, taxpayers and voters, and it would be unreasonable to assume that they had no opinion concerning candidates and their ideologies.  However, there is some question among legal scholars (not to mention the media and the GOP, but let us confine this discussion to those whose opinions actually matter) regarding the wisdom and effect of Justice Ginsberg’s comments:

  • Richard W. Painter, a professor of law at the University of Minnesota and a former ethics counsel for President George W. Bush, said Justice Ginsburg’s blunt criticism could provide Mr. Trump with ammunition to try to undermine the moral authority of the Supreme Court.
  • The code of conduct for federal judges says that they shouldn’t publicly endorse or oppose a candidate for public office.” The code does not apply to Supreme Court justices, but they are generally guided by it.
  • Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute, said Justice Ginsburg’s comments “make the judiciary just as political as the other branches of government, and that’s a bad thing. It’s inappropriate for judicial branch officials to do this because it removes even the illusion of impartiality.”
  • Bloomberg’s Noah Feldman noted the Constitution doesn’t require justices to be nonpartisan. Even John Marshall, the father of American constitutional law, served as both chief justice and John Adams’s secretary of state at the same time, he pointed out. “As a lawyer and as a citizen, I’d always rather know what justices and judges think rather than have enforced silence and pretend they have no views.”
  • Her comments make it clear that she would be forced to recuse herself if the election comes down to a Bush v. Gore-type case.

So, while Justice Ginsberg’s comments broke no laws, no established protocols, and indeed, the late Justice Antonin Scalia was known for making such partisan, political comments, her remarks were probably not the wisest thing she could have done.  However, there are only two scenarios under which I see them coming back to haunt her.  One, as mentioned above, is if the election should become a contested election and the Supreme Court is called upon to adjudicate.  The other, potential situation would be if Donald Trump were to actually become president, in which case he would likely claim that the Supreme Court is biased against him due to Justice Ginsberg’s remarks.  He of thin skin also has the memory of an elephant when it comes to those he feels have insulted him.

All that said, one must still obtain a bit of humour over the fact that Justice Ginsberg got under the thin skin of da trumpeter.  His response was predictable (we are getting to know him so well through his tweets and speeches!) and tedious, but I just love seeing anyone get under his skin!

“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly. I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.”

Justice Ginsberg was well within her rights to state an opinion.  The 1st Amendment applies to her just as much as to anyone else.  But yet, there are times when it is just smarter to keep one’s mouth shut.  This may well have been one of those times, for at the very least, those troublesome Republicans who are yet trying to use smoke and mirrors, trickery and skullduggery to score a win for their despicable candidate, will no doubt raise a cry and hue over this one.

Addendum:  Between the time I wrote this post and the time of its publication, Justice Ginsburg issued the following statement:

“On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

Presumably her comment is in response to widespread criticism by legal experts and the media.  I am disappointed, though not surprised.

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