Let’s pray that this presidential election doesn’t end in a virtual tie, like it did in 2000, and that the Supreme Court isn’t called upon to pick the winner. Because Ruth Bader Ginsburg has arguably disqualified herself from casting a vote.
We all know that high court justices have partisan inclinations, just like most humans. Clarence Thomas and Antonin Scalia went to conservative retreats hosted by the Koch brothers; William Douglas, a legendary justice back in the day, was socially and politically tight with the Kennedys; and so on. But rarely, if ever, has a sitting justice made public comments like this:
“I can’t imagine what this place would be — I can’t imagine what the county would be — with Donald Trump as our president …. I don’t even want to contemplate that.”
So said Ginsburg, during an interview that ran yesterday in The New York Times. She also said that if her husband was still alive, he’d react to Trump with this quip: “Now it’s time for us to move to New Zealand.” And she voiced similar sentiments last week in a sitdown with the Associated Press. She said that Hillary Clinton will be the next president, and as for Trump, “I don’t want to think about that possibility.”
Not cool at all.
I agree with Ed Whelan, president of the conservative Ethics and Public Policy Center, who says: “I am not aware of any justice ever expressing views on the merits or demerits of a presidential candidate in the midst of a 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.”
And I agree with Ken Rudin, the former NPR commentator, who says on Facebook that Ginsburg was “out of line. Would the late Antonin Scalia expressing similar views about, say, Hillary Clinton or Barack Obama have been equally funny (to liberals)? For those who still abhor the court’s role in deciding Bush v. Gore, having a sitting justice share her views/dislikes about a presidential candidate should be an equally distressing foray into politics…And will she recuse herself on cases regarding Trump because she’ll be seen as prejudiced?”
Ah. That’s the key question. I’ll answer it by quoting from federal law – specifically, 28 US Code 445: “Any justice, judge, or magistrate judge in the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” such as “where he has a personal bias or prejudice concerning a party.”
Just imagine what would happen if, heaven forbid, we wind up with a Clinton v. Trump case, some circumstance in which the presidency hinges on another ballot dispute, or allegations of a “stolen” election. Lawyers being lawyers, Ginsburg would surely argue for her participation in such a case – successfully so, because Supreme Court justices are exempt from the codes of conduct (and rules governing the appearance of neutrality) that bind the rest of the federal judiciary. But Republicans would be right to raise hell about her anti-Trump remarks, and her participation would put the entire court under a cloud.
Adam White, a scholar at the conservative Hoover Institute, remarked yesterday, “She just said she wants Trump to lose the election. How could she judge those cases?” He’s right to raise that question. And the same question would arise if a President Trump’s policy issues – or his Trump University fraud case – land at the court with Ginsburg still sitting. The last thing we need, given the current anti-government mood, is another cloud.
Granted, the odds are low that Trump will win, or that he’ll even run competitively. The Electoral College math strongly favors Clinton – that math is way more important than the ephemeral polls – which is why one Bush-McCain veteran, having parsed the math, concluded today that “Republicans are following Trump off a cliff.” And the list of Republicans boycotting the Cleveland convention continues to lengthen. My new favorite quote, from veteran party strategist Jason Roe: “This ship can sink without me as a passenger.”
Ginsburg’s partisan outbursts will probably be moot, but that doesn’t excuse them. Liberals who went nuts when Scalia duck-hunted with Dick Cheney should acknowledge that Ginsburg did worse. Especially if we recall what she told USA Today back in 2011: “What I care most about – I think most of my colleagues do, too – is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.”
Really? So don’t talk politics.