“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.”
—- Justice Ruth Bader Ginsberg, officially apologizing for making remarks sharply critical of Donald Trump last week, including suggesting (in jest) that if her were elected President, she might “move to New Zealand.”
1. Supreme Court justices almost never apologize, and I only say “almost” because I can’t do enough research right now to safely say “never.” They don’t apologize because the don’t have to: they are, ethically, a law unto themselves, and accountable to nobody unless impeached and convicted. (Justice Samuel Chase, was impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; it was a purely political attack. He was, correctly, acquitted by the U.S. Senate on March 1, 1805.)
2. An apology was appropriate, however. Justice Ginsberg proved herself smarter, better, more ethical and more principled than the embarrassing, crypto-facsist “these are not ordinary times” crowd, including the folks at Salon and other left-wing blogs, this guy, and too many of my dear friends on Facebook, whose expressed opinions really are beginning to make me wonder if they will solemnly send me to a Lobotomy Man when I oppose President Clinton’s declaration of open borders, ban on fossil fuels, race and gender quota in all hiring and admissions to (free) colleges, and confiscation of 50% of my property to help pay for national health care including late-term abortion on demand and tax-payer funded recreational drugs.
3. She apologized because any fool could see that her comments did undermine trust in the institution of the Supreme Court, and that her critics were right. Some of my more misguided colleague in the legal ethics field opined that it was silly to think that Justices don’t have political opinions and biases, just as it is silly to think journalists do not, so why shouldn’t she exercise her First Amendment rights? This lame notion was decisively rebutted by a lawyer whose name I wish I could reveal, except that his comments were on a private list. He wrote in part…
Not every truth you see must be said. RBG is not just a citizen exercising first amendment rights; she is a justice. The separation of powers argues for better judgment. It is not only appearance; it is not good for the system for a judge to be expressing such political views. Consider as some have suggested if all judges were expressing their choices for political office. Sure judges come with biases, but what benefit does it do for them to be expressing them and thus messing with the elective system. And yes if less is expressed, then there is more chance for an open mind. It is easy to minimize the aura of an institution, but there are consequences. The Supreme Court gains it power from the methods of proceeding; it has no power over purse or armies. To the extent it looks or becomes partisan, that aura, majesty some would call it, is diminished and its moral authority for being followed in its decisions is diminished. Bush v. Gore is a great example of how respect for the Court was harmed. To stay silent because of other more important duties is not dishonest, it is not hiding bias; it is merely recognizing that position urges one to not express a truth just because one holds it because other more important values are at stake…. just because you know a truth does not mean you must express it.
4. Of course, most of us are fools when it comes to recognizing that our critics are right, and thus Justice Ginsberg deserves praise for quickly acknowledging her misconduct. It is possible that Chief Justice Roberts advised her to issue the statement. It is possible that she read this, a troubling report by AP regarding the public’s sinking confidence in American institutions. Whatever the reason, her statement was necessary and important.
5. How does her apology rate on the Ethics Alarms Apology Scale?
As some commenters on other threads have already suggested, it’s a classic Level 6:
6. A forced or compelled version of 1-4, when the individual (or organization) apologizing knows that an apology is appropriate but would have avoided making one if he or she could have gotten away with it.
She made so many anti-Trump comments in so many settings that it is not credible to conclude that the Justice would have decided she had to issue a statement of regret unless public, professional and pundit opinion compelled her to do so.
6. She did not apologize to Donald Trump. She should have, though that would have been a bitter pill indeed, given the intemperate insults he has been hurling at her because of her comments. She also should have apologized to her colleagues on the Court. When she looks bad, they look bad.
And when they look bad,
our whole system looks bad.