Add one more bit of evidence to the pro- side of the debate over whether there should be a limit to Supreme Court tenure. Justice Ruth Bader Ginsburg, 83 and a cancer survivor, has now apparently entered the “What the hell: I’m going to say what I feel like saying” period of her life. How nice for her. The problem is that there are some things an ethical Justice should not and cannot say.
In an Associated Press interview published last week, Ginsberg opined that a Trump Presidency was too awful to contemplate, saying that she presumed Hillary Clinton will be the next president, and that she didn’t ” want to think about that possibility” of Trump being elected instead. Talking to The New York Times, she said, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” Then, in a CNN interview, she got specific:
“He is a faker…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.”
“This was a remarkably stupid and egregious comment for a sitting Supreme Court justice to make on the record. Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas, but they never weighed in on presidential politics quite like this. The closest example I can find is that in January 2004, during an election year, Scalia went on a hunting trip with Vice President Dick Cheney….What Ginsburg did was way worse, though.”
Of course it is. Ginsburg’s comments were directly in opposition to the federal code of judicial conduct, which prohibits Federal judges from publicly endorsing or opposing candidates for public office. It also prohibits them from making speeches on behalf of political organizations or contributing to candidates. It is true that the code doesn’t apply officially to SCOTUS, but that doesn’t give the justices leave to thumb their noses at it, either. Supreme Court justices are supposed to be role models for federal judges, not a group of uninhibited renegades. True, unlike the case with all other judges, no ethics standards stop Ginsberg or one of the brethren from carrying a “pigs in a blanket” sign at a Black Lives Matter rally. That doesn’t mean that wouldn’t be obviously and outrageously wrong.
Would her expression of contempt for Trump mean, as some experts are saying, that Ginsberg would have to recuse herself in a future case involving him? No, she wouldn’t have to recuse, just as she doesn’t have to pay attention to the unambiguous judicial ethics requirements regarding a judge’s duty to uphold the integrity, reputation and public trust in her position, all of which her gratuitous anti-Trump statements also defied. Still, as Glenn Reynolds wrote,
“…The comments were injudicious, and though they are unlikely to become relevant in the coming term, should they in fact matter – because of a contested election, with the nation closely divided – her recusal, or worse, her refusal to recuse herself, would undoubtedly have explosive results, both for the nation and for the Court itself, an institution that depends on public regard and that has been growing less popular already in recent years. The comments are an iceberg that most likely will never meet its Titanic, but worth noting here because, should that meeting come to pass, the results would surely be the most significant event of the coming term.”
“Almost no one, it seems, in our terrible political class has any sense of propriety, or of the fragility of the institutions that they infest.”
I really should have made that Reynolds quote an Ethics Quote of the Week. It neatly and tragically explains why Donald Trump’s complete rejection of civility, decorum, dignity and respect for governmental institutions do not make him repugnant to sufficient numbers of Americans. They see Bill Clinton break election rules, and the Attorney General allow him to taint an FBI investigation. They see Hillary Clinton flaunt national security regulations to cover her tracks as she makes millions influence peddling to foreign governments, and then lies about it—still!— without official penalties. They see the President repeatedly attempt local criminal investigations while tarring individual citizens as racist, and watch members of Congress imitate Sixties demonstrators in the House of Representative, holding a sit-in not to ends a war or for civil rights, but to allow the government to remove a citizens’ rights without due process, as the Fifth Amendment requires.
Professor Reynold is right: Justice Ginsberg’s conduct is of a piece with the rest. That doesn’t make it any less atrocious. Also atrocious is that so many partisan Democrats, anti-Trump pundits and social media commentators lack the integrity or knowledge to understand how harmful and wrong Ginsberg’s comments are, and thus applaud her candor.