When neutrality becomes impossible
Trump is angry (or is pretending to be angry) at Ruth Bader Ginsburg because she has said harsh things about him in public. Supreme Court justices aren’t supposed to take sides in political campaigns.
“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” Trump told the Times by phone. “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.”
Ginsburg in recent days has ramped up her criticisms of Trump’s campaign. She has said he’s a “faker” who should release his tax returns, that she “can’t imagine” a Trump presidency, and that “everything” would be up for grabs with him occupying the White House. Ginsburg’s comments are unique in that a Supreme Court justice typically doesn’t comment on presidential candidates during election season.
I don’t know. I can see why the Supes don’t usually get involved, and why it’s better that they don’t…but Trump is a special case. He’s special because he has no relevant experience or education, and because he’s a reckless pugnacious loose cannon. He’s not a real “presidential candidate” in the normal sense of the phrase. He’s a noisily self-promoting tv personality and “tycoon” – he’s a joke rather than a serious candidate. He’s also a vocal, aggressive racist. He’s not so much a candidate as an emergency. The rules change for emergencies.
“The rules change for emergencies.” Also for people who are unfit for office. The blob of baloney with the orange weave is unfit for office. Anyone who doesn’t point that out is complicit. RBG knows that, which is why she pointed it out.
It’s actually journalism’s job (that whole fifth estate thing) to be pointing these things out but they’ve fallen down so badly everybody else has to step in. And then journamalism gets to manufacture another ooh-ooh-ooh-he-said-she-said-did-you-hear bullshit thing.
The country is at stake and all those made-up airheads can do is chase clickbait. I used to think they were just stupid entertainment to be ignored, but I’m starting to actively hate them.
And, really, justices are still people, and still citizens. It still matters to them. They do not check their rights totally just because they don a black robe. When they are on their own time, they should be able to exercise their rights.
From the outside it seems as though American public life has become so mired in ‘tradition’ that those with the power to do both great and terrible things have become largely ciphers, at least in their public utterances and behaviour. What they do behind closed doors seems to be another matter.
I do think it’s preferable that Judges do not become overtly political. Then again, the voices condemning RB-G were remarkably silent when Scalia was weighing in on cultural and social issues. Where does that line lie…
Anyway, in a country where so many judges and prosecutors are either elected or politically appointed you can hardly expect them NOT to have political opinions.
Now, won’t it be interesting if other US Supreme Court Justices express their opinions as well.
Rob,
I’ve always assumed that, in most democracies, particularly for the highest positions, judges are politically appointed. The problem is not political opinions, but judicial bias.
RJW, at risk of boring everyone else and dragging things off topic again, overt political influence can be avoided. Here are a couple of links that outline the process used in New Zealand. Technically appointments are made by the Executive, in the form of the Attorney General advising the Governor General. In practice as I understand it, the recommendation comes from the judicial administration with broad input from a wide range of groups. The AG then adopts the recommendation. The Cabinet are informed of the appointment after it has been made and prior to publication. No discussion takes place at that level and no approval is given. Here’s the Court’s website link. The document referred to at the bottom of that page is a broken link. Here is the direct link to the pdf.
Because the system relies very much on convention I guess it could be abused. That would require our body politic to take a distinct turn for the worse. It would also require a great many people to remain silent about the abuse. Luckily we’re not in that state (yet).
I apologise if anyone gets sick of me talking about how we do things here in NZ. The intention is not to say that we do it better, or that the US/AUS/UK does it badly (well, not always). Rather, I find it interesting to see how other countries address issues and hopefully seeing how we do things provides a point of reference for others to consider whether their way is the best (which I expect sometimes it may well be). It’s also good to see the similarities and alignments. I’m relying on OB or others to tell me to shut up if it gets too much!
I like Mark Joseph Stern’s take in Slate. The takeaway:
http://www.slate.com/articles/news_and_politics/jurisprudence/2016/07/ruth_bader_ginsburg_risks_her_legacy_to_insult_donald_trump.html?wpsrc=sh_all_dt_tw_ru
Rob,
Thanks. As far as I understand it’s similar here in Oz. The system was abused recently by a conservative state government when someone who was plainly under-qualified was appointed State Chief Justice. Other members of the judiciary and the legal profession made his position untenable and he eventually resigned. It was a demonstration of where power actually resides, apparently not with arrogant politicians who don’t consult with, and get the approval of the legal profession.
We can all learn from developments in other countries, although some societies have the ‘everything invented here’ mentality, they will never learn.
It might be an ethical lapse for her to sit on the bench if a case against Trump comes before her court.Then, her professional decision-making could be compromised by her awareness of what an odious person he is.
It is NOT an ethical lapse for her to issue an opinion of him OUTSIDE the courtroom, as a citizen, not as a judge. The SCOTUS defends the First Amendment rights for everyone in the US. They should certainly be able to avail themselves of those rights.
Technically she’s done the wrong thing, but RBG has done this so far out from the poll no-one will even remember this. Hell, she may not even be alive by election time*, so she may as well make hay while the sun shines.
*I hope she has a few years left yet, but once you hit 80 the ref starts looking at his watch.
You know, Samantha, I have a thought about that. Most justices hold strong opinions about something, I imagine, but we usually don’t know what it is. So justices sit on cases all the time that they have a bias on, but we haven’t been given that information through them shooting their mouth off. They quietly and under the radar put their own ideas into practice in court cases based on their own biases (well, maybe not quietly and under the radar once they decide the case). In Hobby Lobby, it is certain that at least some (maybe all) of the justices had a strong opinion on this issue prior to hearing the case, but none of them sat it out.
So we make someone recuse themselves because we know they’re biased, when all along there is a huge amount of bias sitting on the bench that hasn’t yet expressed itself. I’m not sure knowing they are biased in advance is any more excuse for them recusing themselves than being biased without telling anyone…it’s a crap shoot, I think.