Bench Memos

Law & the Courts

Ginsburg’s Non-Recusal from Cases Involving Presidential Election

Back in July, Justice Ginsburg slammed Donald Trump in a series of interviews and then, facing almost universal criticism (including from the New York Times and the Washington Post) for her violation of judicial ethics, publicly stated that her comments were “ill-advised” and that she “regret making them.” But as legal ethicist Stephen Gillers explained at the time, Ginsburg can’t “unring the bell.” In other words, her statement of regret does not alter the recusal obligations that she incurred as a result of her anti-Trump comments.

As I see it, Ginsburg’s extraordinary attack on Trump means that her “impartiality might reasonably be questioned” (one of the statutory triggers for recusal) in any case that materially involves Trump’s electoral interests in the current presidential campaign, whether or not Trump is formally a party to the case. But Ginsburg clearly is not applying that standard.

On August 31, Ginsburg provided the critical fourth vote that resulted in a 4-4 denial of North Carolina’s application for a stay of a Fourth Circuit ruling blocking the state from enforcing its voter-ID law. As the New York Times reported, the Fourth Circuit ruling “upended voting procedures in a [presidential] battleground state,” a state in which “Democrats are resting their hopes for a victory by Hillary Clinton on a strong turnout among black voters.” A central claim in the case (per the NYT summary) is that enforcement of the voter-ID law “would crimp African-American voter turnout.” So it’s clear that the case materially involves Trump’s electoral interests.

Similarly, on September 9, Ginsburg took part in the Court’s denial of a stay of a ruling that prevents Michigan from enforcing its statute eliminating “straight-ticket voting.” As the Detroit Free Press explains, straight-ticket voting enables a voter to use a single mark to vote for all candidates of a political party and “is popular in Michigan cities with large black populations.” Thus, the lower-court ruling has “strong implications for the Nov. 8 presidential election in Michigan.” (Whether Ginsburg’s vote was decisive is unclear—only Justice Thomas and Justice Alito publicly registered their disagreement with the Court’s denial—but it’s also irrelevant to her recusal obligation.)

If a conservative justice had publicly slammed Hillary Clinton’s candidacy in any way comparable to Ginsburg’s remarks, the press, along with the Left (pardon the redundancy), would—rightly—be clamoring for that justice’s recusal from cases like these. 

Addendum (around 12:20 pm): In case folks have forgotten, here’s what the New York Times reported Ginsburg said about Trump’s candidacy (emphasis added):

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.

And here’s what she said to CNN (emphasis added):

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.

“I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.”

(Ginsburg, as it happens, was wrong to think that Hillary Clinton had released her tax returns. Clinton released them some weeks after Ginsburg’s remarks.)



The Latest