Justice Ginsburg’s blunder

On election night 2000, then-sitting Supreme Court Justice Sandra Day O’Connor [my former boss, by way of disclosure] was attending a party with friends and colleagues.  When CBS called Florida for Al Gore, she is reported to have exclaimed, “this is terrible,” and then got up, “with an air of obvious disgust,” because (her husband then explained to a concerned party guest), a Gore victory would mean that she couldn’t retire for another four years because she wanted a Republican to name her successor.  Later, it emerged that many years earlier in Justice O’Connor’s tenure on the Supreme Court, she had expressed in private correspondence her view that a George H.W. Bush victory in 1988 was “vital for the Court and the nation.”

For these statements – made in situations where O’Connor might reasonably (if erroneously) have thought that they would not wind up in the media – O’Connor received special criticism for the Supreme Court’s 2000 decision in Bush v. Gore, which effectively named George W. Bush president.  Having made it clear that she personally supported George W. Bush’s election (as well as his father’s 12 years earlier), some have argued that she should not have participated in deciding the case.  And even if you think recusal wasn’t necessary, it’s easy enough to understand the argument that someone who has expressed their preference for how an election should turn out has a conflict of interest when the question presented in a case before her is essentially that.  After all, judges (in confirmation hearings especially, but also in general) routinely avoid expressing their views on the merits of cases that might come before them.  When they don’t – such as Justice Scalia’s public statements regarding the constitutionality of the words “under God” in the Pledge of Allegiance – they later may end up having to disqualify themselves from the case.

All of which brings us to Justice Ruth Bader Ginsburg’s comments this week to the New York Times and to CNN.  In case you hadn’t heard, Ginsburg was asked about the upcoming election, and here’s what she told the 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.”

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.

Later asked by CNN whether she stood by those remarks, she doubled down:

“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.

All due respect to Justice Ginsburg, for whom I of course have enormous respect, making these comments was a big mistake – far worse than what Justice O’Connor reportedly said in 2000.  Most obviously, should (God forbid) this November’s election wind up at the Supreme Court, could anyone seriously defend the idea that Ginsburg doesn’t have at least the appearance of bias, of a conflict, of having prejudged the case?  Regardless of whatever technical legal issue might be presented in such a case, Ginsburg obviously, publicly, dislikes the idea of a President Trump, thinks he would be a bad president, and thinks he would do lasting damage to the Court and the country.  It’s hard to imagine how she could now hold herself out as an impartial judge in a case that would decide whether or not we have a President Trump.  To return to Chief Justice Roberts’ tired balls-and-strikes analogy, there is a reason that Major League Baseball would never hire a Red Sox superfan to be an umpire, however solid the superfan’s umpiring skills might be.

Of course, it’s not very likely that November’s election will end up at the Supreme Court.  But the potential harm goes beyond that.  The legality of some of the next president’s actions will very likely wind up at the Supreme Court – it’s happened to just about every other president in recent years.  Would Ginsburg be qualified to hear such a case if a President Trump’s actions were at issue?  Certainly, the Trump side would have a pretty solid argument as to why she shouldn’t be.  It would create a needless distraction in every such case, and it would make it very easy to call the legitimacy of the results in those cases into question.

And more broadly, outside the prospect of Ginsburg’s comments affecting cases that may come before the Court, she has crossed a line that, as far as anyone apparently can remember, no Supreme Court Justice has crossed in modern times, and maybe ever (a few Justices actually sought the presidency themselves, but nothing like that has happened for 100 years).  The federal Code of Conduct for United States Judges, which binds all federal judges except for Supreme Court Justices, actually prohibits judges from publicly endorsing or opposing candidates for public office.  There is real value, I think, in our courts, and especially the Supreme Court, maintaining the appearance of being at least somewhat removed from the political fray.  People need to have some degree of confidence that court cases are decided based on something other than politics.  The Supreme Court has already suffered a number of self-inflicted wounds along those lines, certainly including Bush v. Gore (which Justice O’Connor herself later regretted).  Ginsburg’s comments strike me as a huge unforced error along those lines that is only likely to further erode public confidence in the federal judiciary.

And for what?  What does Justice Ginsburg gain from having made these comments?  A bunch of news stories, which she hardly needs at this point.  Maybe some adulation from the left, but surely being deemed “Notorious R.B.G.” and having a bestselling fawning book written about you with that title is enough of that too.  The possibility of influencing the outcome of the election?  Nobody who is likely to vote for Trump will be swayed because of what Justice Ginsburg thinks.  Would someone who is disinclined to vote for either major party candidate reconsider and vote Hillary because of Justice Ginsburg?  That seems far-fetched to me, and the number of votes she could conceivably swing in that way seems to me a very high price to pay for sacrificing her impartiality.  She is one of millions of people who could maybe influence the votes of others; she is one of only nine who can vote on the country’s most important cases.  We know virtually for a fact that, in some really important cases, her vote will be the deciding one.  To potentially sacrifice it, along with the image of the entire institution, on the off-chance that she might persuade a few Hillary haters to hold their nose and vote for her anyway … I don’t know.

One commentator argues semi-approvingly that Trump is an entirely different kettle of fish from any other candidate of either major party, so it’s understandable that Ginsburg would think that the normal rules no longer apply.  He says:

For Ginsburg to treat Trump with the same respect—that is, complete silence—that she afforded previous Republican nominees would acquiesce to the premise that his candidacy is just like theirs. It would suggest that this is an election like any other, a run-of-the-mill election rather than a battle for America’s soul. It would legitimize a fascist. And so, sensing the menace that Trump undoubtedly poses to her country, Ginsburg abandoned judicial propriety to wrestle in the mud with a candidate she detests. It is not pretty, it is not pleasant, and it may not even be that smart. But it may be the one thing the justice can do to help prevent a President Trump. And to her mind, that alone may make it worthwhile.

A couple of responses.  First, as noted above, I’m just not sure that doing what she did is especially likely to “help prevent a President Trump.”  Second, if she really does think that Trump is an order of threat to the country that justifies her speaking out in such unusual terms, she should say so explicitly.  She should make clear that (a) she is doing something that she knows is rare and maybe unprecedented, because (b) Trump is so utterly unlike any major presidential candidate in recent years that the unique threat that he poses justifies her actions.  But she hasn’t done that.  Her comments just read like those of any other Democrat who doesn’t like Trump, and who is understandably concerned about the future of the Supreme Court should he become president.  By only going half-way – by saying she doesn’t want Trump to be president without explaining why Trump’s candidacy justifies her abandoning the usual rules – she has bizarrely allowed Trump to claim the high road, as legal ethicists and other opinionators largely line up against her comments.

I’m realistic about these things.  I know full well that judges, including Supreme Court Justices, are actual people who hold sometimes strong political views.  But I’m afraid that part of what you sign up for when you become a judge is keeping those views under wraps, in order to protect not only your own judicial reputation but also the integrity of the institution you serve.  And consider this: the late Justice Scalia was roundly, and I think appropriately, castigated for making overly political remarks that seemed well outside the bounds of propriety for a federal judge.  How is what Justice Ginsburg did any different, except that most of us happen to agree with what she said?  What would we be saying if one of the conservative Justices told the New York Times that Hillary Clinton’s past ethics issues should disqualify her from the presidency?  Is this really so different?

One of Donald Trump’s abilities seems to be to bring out the worst in everyone.  Sadly, Justice Ginsburg is apparently no exception.