What to make of Justice Ginsburg’s (since repudiated, if not recanted) public comment about the possibility of a Trump presidency?
From a friend on Facebook, discussing Justice Ginsburg’s confrontational comments about candidate Trump:
Ginsburg really blew it here. Arrogant and foolish behavior from someone at the peak of my profession. Judges are really supposed to be better than this.
Of course she’s right that Trump is a lying, sexist, racist, petty, insecure thug whose mere election, and certainly whose administration would be a putrid and long-lasting stain on the U.S. You really don’t have to be too bright to see that. But she should be above getting into a back-and-forth with a buffoon like him.
The lesson here is that when a monkey throws his poop at you, just get away from him. Don’t crap in your hand and return fire. Even if you hit him, it’s a bad look for you.
I partially agree. Ginsburg’s comments offered little substance, yet will still fuel the narrative that “real Americans” need to “take the country back” from “intellectual elite insiders.” This is at least counterproductive. But this morning I heard Paul Ryan explain that, as an ELECTED official, he has the right/obligation to bellow his political perspective, but RBG, as an APPOINTED official, sullies respect for the rule of law when she expresses political opinions that reflect her inability to be impartial. I’m not sure why Ryan thinks partiality is essential to his job. When a constituent calls needing help with government services (VA benefits, for example), I doubt the constituent wants the response to depend upon the constituent’s political affiliation. RBG is welcome to express political views, and I hope she continues to do so. But I hope future efforts are more substantive.
Again, a friend’s thoughts:
I disagree. Ryan is elected in large part to further a particular political agenda. Of course that’s not absolute. You give a good example about constituent service, and there are certainly other responsibilities he has that should be above politics (e.g., not letting the country default on its debt). But his main qualification for his job is his political outlook.
Judges, by contrast, are supposed to make impartial decisions. It’s part of the code of ethics, and it’s what we all need to feel satisfied after we’ve had our day in court, win or lose. Judges should not say or do things to suggest they have preconceived notions of litigants that often come before them, and the Executive Branch often comes before the Supreme Court.
The Judicial Branch should be different than the other two. We trust unelected officials with tremendous power over the other two branches because we think they’re committed to simply getting the answer right rather than indulging in personal preference. Of course Judges are people and answers aren’t always clear, so personal background will influence decision making. But the impact of that should be minimized rather than normalized New York Times interviews.
Gross, gross, gross.
This is two related assertions — one about the Speaker, and one about judges. Let’s separate them.
As to Speaker Ryan, I’ve just reviewed my copy of Article I of the Constitution, and I can’t find anything to support your breathtaking assertion that Ryan’s “main qualification for his job is his political outlook.” You are making a catastrophic (though common) error of conflating the skills necessary to GET a job with the skills used to DO the job. Your statement is a cynical assessment of modern government that many share, but the fact that elected representatives use their offices to curry favor with their political benefactors is not how things have always been, is not how things must be, and is not how they should be.
Regarding RBG, let’s begin by agreeing to leave aside the absurdity of the suggestion that the primary role of a judge is to help litigants “feel satisfied after we’ve had our day in court, win or lose.” — if you know a litigator or a litigant that loses a trial and “feels satisfied,” I hope you’ll introduce that person to me. I’ve been both litigator and client, and I’ve lost as both (I didn’t say I was a GOOD litigator or client). It sucks, and I’ve disparaged (usually only in my mind, and not publicly) the intellect, work ethic, and integrity (almost always with little basis) of judges and juries every time.
I don’t know what makes a SCOTUS Justice politically different that a Speaker of the House (Is it elected vs. appointed? Then what about an elected judge? What about a person appointed to finish a partial term of a senator? If it is the difference between Article I and Article III, how does that analysis affect the President?). Assuming important distinction is elected vs. appointed:
It appears to be that one is directly elected by constituents of a small geographic area, then selected for leadership by a group of elected politicians who share his political affiliation before leading half the nation’s legislative body. I would suggest that this is scarcely a better reflection of the Platonic ideal of “democracy” than a Justice, who is nominated by a person elected (though the Electoral College) by all of America, then confirmed by a body comprised of elected officials from the 50 states. Indeed, I expect you were one of the sane people who chortled when Mitch McConnell claimed that “the American people should get to choose” who picks the next nominee for SCOTUS, because you know that the political process has already played its part.
But what of impartial decisions (you actually say that people should “feel” that judges are impartial, but I assume you’d settle for judges who are ACTUALLY fair instead of heavily-biased judges who could convince the public of impartiality)? HAVING political opinions does not make impartiality impossible? This, of course, would be absurd if it were otherwise. Judges — whether elected or appointed — are political actors who must have a keen understanding of politics to secure a spot on the bench.
So judges with political opinions should keep silent about them? That HAVING the opinions is okay, but SPEAKING them is a mortal sin? Is that because stupid people will then assume they don’t have the opinions? Sort of a TSA-checkpoint in a black robe?
We try to select judges who follow all clearly applicable rules to every matter before them, and strive to make all “judgement calls” based upon analogy, reasoning, and impartial judgment. If we tried to select judges who were incapable of political thought, or who pledged to somehow avoid the practice, our judiciary would be populated with the kind of people who regularly get removed from juries. That is not what we want. In short: people with strong political views can be fair.
Finally, I note that there is a difference between RBG’s broadside against Trump and a declaration of a preconceived notion about a particular case or controversy. If a justice were to say something like, “I find it impossible to believe there is any permissible legal basis for a program that makes immigration decisions based upon religion, and I would therefore strike down any such program as unconstitutional,” that’s an expression of bias. Put another way: can a public defender, who regularly represents individuals the defender knows are guilty of the crimes they are charged with, oppose the idea of armed robbery (for example), express that opposition in public (perhaps a letter to the editor demanding better policing in the defender’s neighborhood after a rash of home invasions) and still give an adequate defense? If so, help me understand why a Supreme Court Justice is less capable than the public defender.
To reiterate, I lament RBG’s comments’ coarseness and lack of substance, but not the fact of them. I’d love it if RBG, Speaker Ryan, and other parts of our government would all choose to make substantial critiques of policy and avoid the personal, the ad hominem, etc.
If a politician were elected on a platform of fiscal plans that included a promise of defaulting on the national debt, what would you think? It seems like an odd example of a non-political act for an otherwise political office, and I’d like to understand where you’re coming from.