Bench Memos

Law & the Courts

A Limited Defense of Justice Ginsburg, Blabbermouth—Part 1

Unbelievable.

In a New York Times interview with Adam Liptak, Justice Ginsburg expanded her own remarkable record of indiscretions, as she blabbed her views on all sorts of things. I’m actually going to offer a limited defense of Justice Ginsburg in my Part 2 post, but I’ll first set forth here her two most outrageous statements, along with some critical commentary:

1. As Liptak observes and as the article’s title (“Ruth Bader Ginsburg, No Fan of Donald Trump …”) blares, Ginsburg “is making no secret of what she thinks” of Donald Trump:

“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.

For what it’s worth, I also have deep concerns about what a Trump presidency would mean. (Unlike Ginsburg, I also have similar concerns about a Hillary Clinton presidency.) But how does Ginsburg imagine that it’s appropriate for her to set forth publicly her strongly negative views about a presidential candidate? Has any justice ever made comparable remarks praising or condemning a presidential candidate in the midst of the campaign season? How are such remarks compatible with the general judicial duty to promote public confidence in the impartiality of the judiciary?

Ginsburg’s remarks also ought to require her recusal from any dispute over the presidential election that reaches the Court.

2. Ginsburg also criticizes Senate Republicans for not acting on the Garland nomination, and she does so in terms that embrace one of the most insipid claims made by Senate Democrats:

Asked if the Senate had an obligation to assess Judge Garland’s qualifications, her answer was immediate:

“That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.”

As Ginsburg ought to know, Senate Democrats are trying to have their dispute over the Senate’s handling of the Garland nomination play a role in every Senate race this fall. How could Ginsburg think it appropriate to speak out on this matter?

* * *

Ginsburg makes several other statements in the interview that are of dubious propriety, including her praise for Merrick Garland, her contemplation of which further Supreme Court seats are (in Liptak’s summary) “at stake in the presidential election,” and her disclosure of internal Court deliberations (e.g., how Justice Scalia would have voted in two cases).

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