Ethics Dunce: Supreme Court Justice Ruth Bader Ginsburg

Justice Ginsberg, not giving a damn.

Justice Ginsberg, no longer giving a damn.

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.”
Law professor Daniel W. Drezner, who teaches at the Fletcher School of Law and Diplomacy at Tufts University,  minces no words over at the Washington Post, nor should he. Like me, he agrees with Madam Justice on the substance of her remarks about, yechh, Donald Trump. Nonetheless, he writes,

“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.


Pointer: Instapundit

Sources:PoynterWashington Post, CNN, Instapundit

22 thoughts on “Ethics Dunce: Supreme Court Justice Ruth Bader Ginsburg

  1. My guess is that she is saying, “If Donald Trump is elected president, then I will retire. However, if Hillary wins, I’ll stay.”

        • Either way, it’s nice knowing that we have a justice alive who can remember the heady days of Justice Marshall compelling Andy Jackson and Jackson essentially flipping the good judge the bird.

  2. Justice John Harlan II (Grandson of the Great Dissenter) never voted in any election, lest he have the slightest hint of any partiality. How far we’ve fallen.

    Who is going to sanction a Supreme Court Justice?

    Lisa Simpson: But who will police the police?
    Homer Simpson: I don’t know…..the Coast Guard?

  3. Reminds me of Helen Thomas, older than dirt, physically repulsive, and unfiltered. She needs to follow Thomas into retirement and death.

    • But it’s okay Steve. She only expresses the common wisdom of the Acela Corridor crew. No harm, no foul. Can you imagine a Supreme dressing down HRC and everyone just nodding like bobbleheads? Hah.

      • Had to look that one up, but it absolutely fits. And no, I can’t picture Alito or Clarence Thomas sternly criticizing the possibility of a Clinton presidency given her lack of trustworthiness and the media lapdogs bowing and scraping like obsequious Edwardian servants – yes sir, no sir, absolutely, positively.

          • According to Salon she is simply cashing in her legacy early, to keep Trump out of the White House, which is a heroic act.

            • Salon really is pathetic. For this to be courageous, it would have to actually accomplish something other than diminishing her reputation and that of the Court. I wonder if there is a single person alive inclined to vote for Trump who be dissuaded by what Ginsberg says or thinks. I doubt it.

              • Unlikely. She’s a well-known and reliable figure on the left who isn’t going to convert anyone on the right or pull any fence-sitters to her side.

  4. It’s tough to say this about a sitting Supreme Court Justice, even one with whom I almost always disagree. But once again, the famous Lincoln wisdom would seem to be apropos:

    Better to remain silent and be thought a fool than to speak out and remove all doubt.

    Throughout the years, the Supreme Court has realized the importance of living up to a higher standard, or at the very least, the standard to which lower court judges in the federal system are held — until now. Welcome to the 21st century.

    It seems likely to me that Ginsberg feels so strongly about Trump that she feels the tradition is an impediment to the country’s best interest, and that those possibly unfortunate ends justify her means. I would love to believe the argument made by professor Jonathan Adler that this was a pre-emptive move by Ginsberg to disqualify herself in the event of a Bush v. Gore situation, but I just can’t. Call me a cynic, I guess.

    With Ginsberg now out in front of this, my question is that if a sitting federal judge does the same thing, under what moral authority will we sanction him/her? Oh, we have the law and regulation, for sure, but isn’t that just more of the “It’s okay for me but not for thee” and “The law is for the little people” thinking that we’ve seen out of the Clintons, and to a lesser extent, Trump?

    Ginsberg has proven herself a fool, and as Jack has written, an ethics dunce (although I would characterize her as an ethics scofflaw — she knows the rules). Are we now likely to see Justice Alito follow suit? It would almost (almost, I say!) be worth it just to see the reaction in the media and see that hoary old double-standard dragged to the fore again.

    Nothing like living in interesting times!

  5. Seems to me like this insane Presidential election cycle has caused far too many people to flush their ethics down the shitter; how the heck did we get here… what the heck has happened to us… …oops, I forgot, we’ve had 7+ years of Obama driving down ethical expectations.

  6. I keep on hearing people compare Trump to Hitler , and that maybe if more people had spoken out against Hitler he wouldn’t have risen to power and so Justice Ginsberg is right in speaking out against Trump.

    Lets be very clear. Trump is NOT Hitler. Ok?

    Why is it every time there is a politician someone doesn’t like that call them a fascist and compare them to Hitler?

    As much as I hate Trump, and don’t want him in office, if he is elected he is going to find out very fast how checks and balances work. As to him becoming a “Hitler” that’s not happening. The Constitution will protect us from that happening.

    • Some comparisons to Hitler are appropriate. This isn’t one of them. Franco or Mussolini (trying to pull a nation that was perceived as falling apart back together again by any means necessary), maybe, or maybe even Hugo Chavez (populist). But to compare a loudmouth populist to a genocidal dictator cheapens the victims of that dictator.

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

    OK, Jack, what number does that apology get? I give it a 6 – she knew damn well what she was doing and that it was inappropriate, but hoped it might blunt Trump’s slow-motion catch-up to Hillary in the polls. She probably also knew there’d be a backlash, but that everyone on the left would fall right into line and say “let’s move on” right after she quickly apologized.

    • Hi Steve, Your motivation for Apology nr 6 does not take in account the “forced or compelled” part of the description.

      As I read the NYTimes article it is very unusual (almost never done) for the Supreme Court to apologize. So, it’s hard to imagine there is any force compelling Mrs.Ruth Bader Ginsburg to apologize.

      Any suggestions?

  8. She made her point. Now she apologizes, as if she means it. Trump not my first choice but for the very reason of replacing an idiot genius like Ms. Ginsburg I’ll be glad to see him win.

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