The Supremely Curious Case of Ruth Bader Ginsburg

Ruth Bader Ginsburg has always been a puzzle. As the most liberal supreme court justice, she was best friends with the most conservative justice, Antonin Scalia. In the most violent of philosophical disagreements, the two genuinely loved each other’s company. Perhaps the loss of Scalia has reduced Ginsburg’s prudence.

The issue at hand is several interviews Ginsburg has given over the past week, in which she discussed this year’s court term, but also said a few disparaging words about Donald Trump, when talking to the New York Times.

“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.”

That’s the extent of her words about Trump, among the thousands she spoke. But that became the headline. But why would she enter into politics at all? The Daily Caller suggested in a headline that she was drunk, but that was just a smear. There was nothing about it in the story.

That’s not to say that Ginsburg doesn’t “partake.” The Daily Mail noted that she was “not 100% sober” at the State of the Union. But if that were the case, it would excuse her comment.

No, it wasn’t inebriation. A few days later, she “doubled-down,” speaking to CNN.

“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “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.” . . .

“At first I thought it was funny,” she said of Trump’s early candidacy. “To think that there’s a possibility that he could be president … ” Her voice trailed off gloomily.
“I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.”. . .

Acknowledging her own age and that Justices Anthony Kennedy and Stephen Breyer will turn 80 and 78, respectively, Ginsburg said of the possible next president: “She is bound to have a few appointments (to the Supreme Court) in her term.”

Ironically, Donald Trump said, “whatever comes into his head at the moment” in, of course, a tweet.

“Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!”. . .

“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” Trump previously told the Times on Tuesday. “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.”

It’s also ironic that Trump is calling for “political correctness” in the matter, since he has always condemned criticisms of his own verbal indiscretions.

On Thursday, Ginsburg acknowledged her indiscretion. She didn’t really “apologize,” but Trump says that’s ok.

The Supreme Court justice released a statement Thursday morning saying she regrets her comments, adding that “judges should avoid commenting on a candidate for public office.”

Trump told the The Herman Cain Show later Thursday that Ginsburg’s statement wasn’t a true apology.

“It wasn’t really an apology, but we have to move on anyway. It’s just something that should not have taken place,” Trump said.

“It’s just a very disappointing moment for me because the Supreme Court is above that kind of rhetoric, those words. … But she acknowledged she made a mistake and I’ll accept that.”

This was actually the full text from Ginsburg.

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

Trump was not the only Republican to jump on Ginsburg about her earlier comments. House Speaker Paul Ryan expressed disapproval.

“I think that’s something that she should not have done because I don’t think that that shows she intends on being impartial in the future.”

That’s a little disingenuous, since the Court has been rigidly politically divided for decades. If anything, her comments would likely make her be less partisan on the court. Meanwhile, Senate Majority Leader Mitch McConnell called Ginsburg’s comments, “totally inappropriate.”

“It raises the level of skepticism that the American people have [from] time to time about just how objective the Supreme Court is, whether they’re over there to call the balls and strikes or to weigh in on one side or another,” he added. “I wish she hadn’t said that.”

Again, well, duh. The Weekly Standard had an odd take on the issue. They were not so upset with what Ginsburg said, but rather, that she was not eloquent in saying it.

But perhaps what’s most depressing about the interview is its sheer banality. One would like to think that our most august public servants—senators, presidents, certainly Supreme Court justices, would be—even if we don’t always agree with them politically—well, smart and interesting thinkers.

Democrats, on the other hand, are looking for some way to justify Ginsburg’s comments.

“That’s not the ordinary type of thing Supreme Court justices say, but I can’t fault her accuracy,” said Sen. Sheldon Whitehouse (D-R.I.). “I hesitate to criticize this. We’ve had judges attend the Koch brothers’ donor fest. By those standards it does not seem out of line, but I do think there’d be more respect for the court if the public felt it was less politicized.”

A lot of people are talking, and they’re saying a lot of different things. The New York Post calls Ginsburg “unhinged.”

The New York Times says justices have free speech rights, too.

The Washington Post notes that Ginsburg will now have to recuse herself in any cases involving Trump (that is, a case like Bush v Gore).

Although Antonin Scalia did not recuse himself from Cheney v. United States District Court for D.C, after he, and buddy Cheney went away, duck hunting together.

The Economist suggests that Ginsburg’s comments may be an ethics violation, which might justify disciplinary action.

Breitbart says that the comments may actually hand the election to Trump, since choosing new justices is one of the main issues of the presidential election this year.

The Denver Post is letting the public speak on the issue. The unscientific online poll is running two-to-one against Ginsburg, with 1300 votes currently saying her comments were inappropriate, while 740 say she’s OK.

On the other hand, Vox says all the furor is nonsense, noting that everyone knows where each justice stands, and Samuel Alito reacted politically to President Obama’s political criticism of the Court during the State of the Union.

This was a remarkably stupid and egregious comment for a sitting Supreme Court justice to make on the record,” Dan Drezner wrote for the Washington Post. . .

On the one hand, this seems like an absurd pretense. Everyone knows there are liberal and conservative justices. If you’re honestly shocked to learn that Ginsburg would prefer Hillary Clinton to Trump, welcome to the world, you beautiful newborn baby.

But that illusion of impartiality has long been crucial to how the Supreme Court operates — and legal observers are unnerved by how it’s starting to crumble. The most flagrant example came early this year, when Trump himself starting openly attacking a federal judge overseeing a Trump University case. Ginsburg’s quotes aren’t anywhere near that bad — but they do raise questions about how long the Court can stay apolitical in an increasingly polarized world.

If Ginsburg were a lower court judge, she’d be in big trouble. The code of conduct for federal judges holds that they should not “publicly endorse or oppose a candidate for public office.”

But things get murkier with the Supreme Court. Technically, they aren’t required to follow this code of conduct. Instead, as Chief Justice John Roberts explained in his 2011 year-end report, they’re merely expected to maintain an air of political neutrality. Even small tics — like when Justice Samuel Alito did mouthed “not true” during the 2010 State of the Union when President Obama criticized the Court’s decision in Citizens United — are frowned upon. . .

To many observers, it’s fairly obvious that the Supreme Court is just as polarized as other branches of government. . .So why does it matter if this facade starts to crumble? Why shouldn’t Ginsburg simply be forthright about her views?

I tend to agree. Everyone knows which justices think what, and to what degree. It’s just disingenuous to be “shocked, shocked” as Captain Renault said in the movie Casablanca.

The problem is not that a justice speaks honestly about her politics. It’s that our system is set up to make the Supreme Court as divided as the rest of us.

In these pages, I suggested that the way to choose justices should begin with the Senate Judicial Committee—whose Constitutional duty is to “advise” the president.

Why not have an equal number of Democrats and Republicans choose judges who are agreeable to both sides? That way, we won’t end up with extremists like Ginsburg and Scalia, and we’ll have a better chance at real justice. Or let each party pick two justices, each, so there are some extreme comments to consider.