Justice Ginsburg Should Apologize

It is inappropriate for a sitting Justice to take sides openly in a presidential election, as the Justice did in her interview with Adam Liptak yesterday.  Even though it was safe to assume that she was for Hillary Clinton and was not a fan of Donald Trump, she should not say so in the media.  The younger Justice Harlan was right when he stopped voting after reaching the bench, because he said it might affect his impartiality.  Justice Ginsburg is not helping anybody by sounding off.

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12 Responses

  1. Joe says:

    Not voting isn’t necessary but yes RBG went too far.

    If Ted Cruz was the nominee, I’m sure Thomas would be supporting him (his wife is a gung ho Tea Party/Ted Cruz — she said so in a video — supporter and they are know to have similar views on such things) but wouldn’t want him to make such a public statement.

    It’s okay to talk to the press etc. about things but got to draw a line as Breyer did recently staying well clear about election related issues.

  2. Brett Bellmore says:

    I don’t think anybody thought she had impartiality to compromise. But, yes, a lot of the forms are falling by the wayside now. I think it’s because they only made sense in the context of a “repeated game”, where you had to worry about how the other side might act when positions were traded. Democrats are starting to think the end game is approaching as a result of their demographic manipulations, where they won’t have to deal with the prospect of the other side ever being able to retaliate. So they’re less and less concerned with maintaining these norms.

    For an example of this attitude, look at some of Tushnet’s recent posts.

    • Shag from Brookline says:

      Brett’s start “I don’t think” just about sums up his ignorance. This is at least his second feeble attempt at thinking he can goad Mark Tushnet who has constitutional chops, compared to Brett’s finally deciding to go “international.” The late Justice Scalia spoke in political codes, there being little double where he stood politically.

  3. Joe says:

    Yes, her respect for Scalia and saying things like how the Federalist Society is a good thing does lead me to question her sense of impartiality vis-a-vis other justices.

    I rather not — as some people do — single out one side here including regarding so-called “demographic manipulations” or whatever. RBG has expressed herself over the years but there is more acceptance of judges voicing their opinions in public and as was the case of her friend Scalia, sometimes they go too far.

    Tushnet is not what I would look to find some “median” of Democratic viewpoint either. As O’Connor reportedly saying something akin to “that’s horrible” when she thought Gore won, RBG slipped when thinking about Trump becoming President. As to not being able to “retaliate,” hard to see when this will be. Wanting justices to play hardball regarding precedents isn’t that — we saw pushback there when the Warren Court was seen to play hardball.

    • Brett Bellmore says:

      It’s quite possible to be civil with people who you’ll have to associate with regularly for years on end, and still be an utter partisan.

      I wouldn’t claim Tushnet is a median Democrat. I simply cite him as an example of how the people who’ll actually end up in power thanks to median Democrats view the prospects. They’re looking forward to a “permanent majority” thanks to imposed demographic changes, and look forward to running the entire country the way they now run most big cities: As a one party state.

      I’m not suggesting this is a realistic prospect, just that the expectation of it is coloring their behavior.

  4. Henry says:

    To insist that Ginsburg refrain from mentioning that she’s against Trump is to play a silly game of pretend. We all know that she’s against him, but she’s not allowed to say so, because, if she does, then we can’t pretend that Supreme Court justices do not have political opinions. Is there any other reason to insist that she refrain? It would be different if she campaigned for or against a candidate, but merely to state the obvious requires no apology.

    • Joe says:

      Her comments are basically a form of endorsement so not sure how different this is really than “campaigning” in some fashion.

      Judges have a special duty to avoid even the appearance of bias and this includes not saying things that deep down we known they think. Politics and courts are a bad mix.

      • Henry says:

        Yes, judges have a special duty to avoid the “appearance” of bias, and that is what I object to. It’s a phony appearance, and we all know it. There is no need for phoniness. If a judge feels that her bias would influence her decision, then she should recuse herself, if not, not.

        Logically, my position should perhaps permit a judge even to campaign for a candidate, if she believes that she can render an unbiased decision notwithstanding having campaigned. We’ve all argued both sides of a case in moot court, or represented clients whom we were biased against; lawyers are trained to separate their emotions from their legal analysis. But I’ll concede that a judge who campaigns for a candidate may have such a great emotional investment in the candidate as to make an unbiased decision concerning him less likely.

        • Joe says:

          I disagree it is “phony” especially since “appearance” is going to include stuff that is difference from actual bias. We can play “it is stupid, everyone knows” games there a lot and in the process water down the rule a lot. This leads, e.g., you conceding justices of SCOTUS might even be able to actually campaign. I would reaffirm, especially given the state of the country these days, basic norms on this front should be applied strongly, at least as a matter (as it is for SCOTUS) good voluntary practice. I might not like someone in my family but it is not in good form for me to “sound off” like this about the person in the media or something. It is not “phony” to think this is wrong even if people know I don’t like the person. That’s just basic etiquette. Supreme Court justices are put to a higher standard.

      • Henry says:

        I’ll make another concession. If a judge campaigned for a candidate, then, even if she could render an unbiased decision, she should recuse herself because the appearance of bias in rendering the decision is so strong that, if her decision favored the candidate, then the public would not believe her truthful claims that she rendered it without bias. Therefore, we should prohibit her from campaigning. But a casual comment about a candidate, such as Justice Ginsburg made, shouldn’t worry us. If anyone accuses her of being unable to render an unbiased decision about the candidate about whom she commented, she could respond that all judges have political opinions yet render unbiased decisions, and we shouldn’t pretend otherwise. It’s dishonest to do so.

  5. Henry says:

    I’m pasting a posting from a law professor at balkin.blogspot.com; he implies that all justices, liberal or conservative, should speak out against a candidate who campaigns that he would violate the Constitution:

    Justice Ginsburg is receiving considerable criticism for her negative comments on Donald Trump. Is there a way to defend her? Suppose she believes that Trump is not merely a bad candidate for president, but an unconstitutional one. Unconstitutional on his face, so to speak. That is, Trump both argues for directly and represents, through the sum total of his rhetoric and actions, positions that are contrary to the Constitution. Such a candidate might be seen as a unique danger, thus possibly justifying extraordinary statements such as Ginsburg’s.

    If we are in ordinary times, I agree with Ginsburg’s critics. It is a bad idea for Supreme Court justices to express opinions on who should win elections. But if you had an unconstitutional candidate, wouldn’t that change things? Speaking hypothetically (since I don’t have time to review all of Trump’s statements–but see William Saletan’s articles on Slate), suppose you had a candidate who not only argued for specific racist policies, but argued that racism was a good way to approach public policy generally. Who believed that fundamental civil liberties and civil rights should not be significant restraints on government action. And, important I think to understanding Ginsburg, who attacked specific federal judges and the federal judiciary as an institution. Re my earlier post on how Trump could be winning, in other words a sort of David Duke writ large. Supposing all this, wouldn’t such a candidate pose a unique threat to the Constitution? That’s how we might understand why Ginsburg felt she had to speak out. At least, that’s my suggestion and I’ll open for comments.

    Posted 12:54 PM by Stephen Griffin [link] (0) comments