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Justice Ginsburg undermined the credibility of the Supreme Court

Justice Ruth Bader Ginsburg  deemed her comments last week about Donald Trump “ill advised” and she “regretted” them.

Her comments were not “ill advised.” They were unprofessional at best, illegal at worst. The Code of Judicial Conduct, Canon 1, states: “A judge shall uphold and promote the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”

There is nothing here that a reasonably alert high school student has not learned about the judiciary in America. The Code of Judicial Conduct  is merely the concretization of the separation of power enumerated in the US Constitution. Judges, of course, have, and are allowed to have, political preferences; but they are not allowed to try to sway the direction of an election. That is not upholding the independence and the integrity of the judiciary. That, Justice Ginsburg violated, in spades. Last week she stated publicly:

“I can’t imagine what the country would be with Donald Trump as our president.”

She called Donald Trump “a faker.” She questioned  “how has he gotten away with not turning over his tax returns.”

Any citizen of the US might think, and say, the same; but when one is elevated to the high position of judge, one’s pays a price: the necessary privatization of one’s political opinions in matters potentially, or likely, to come before the judge.

Section 28 US Code 455 states:

“[a] justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The Code also requires recusal where “he has a personal bias or prejudice concerning a party.”

The reference point here, obviously, is a case in which the judge’s actions or expressed views, prior to becoming a judge, make it impossible for the judge to be impartial in a case that requires adjudication of those activities or views. The reference point here, obviously, is not potential conflicts of interest because of which a judge must recuse himself or herself due to  statements or activities while already on the bench.

Judge Ginsburg was not elevated to the Supreme Court for the purpose of not sitting on cases. She was not elevated so that she would disqualify herself from sitting on cases. Yet, that is exactly what her remarks did.

She can no longer be deemed impartial in any case involving Donald Trump if he loses, or President Donald Trump if he wins, or the current election per se (similar to the Court’s consideration of the 2000 election), or, as the Wall Street Journal pointed out, any other issue relating to the current election, such as voter ID laws.

Justice Ginsburg must either recuse herself from all such cases, thus weakening the Supreme Court; or, if she does not recuse herself, and if the remainder of the Supreme Court justices does not require her to do so, she damages the reputation of the Court for impartiality and undermines the most honored institution in the land.

Disciplining a judge for stepping out of line — that is, for violating judicial ethics — is nothing new. To take but one of many possible examples, Judge Guido Calebrisi, on the Second US Circuit Court of Appeals, during the 2004 election, compared the possible election of President George W. Bush to the manner by which Mussolini came to power in Italy. Judge Calebrisi was formally admonished. He was not allowed to endorse or oppose a candidate for public office. The same goes for Justice Ginsburg.

Improper activity of this nature by a judge is entirely unrelated to whether the judge sits on a court during a Republican or a Democratic administration. At the time of Judge Calebrisi’s ethical violations, the President of the US was a Republican. At the time of Justice Ginsburg’s ethical violators, the President of the US is a Democrat. All this is irrelevant to judicial ethics and their violation. Judicial ethics rise above that. Judge Calebrisi and Justice Ginsburg sunk below that.

Justice Ginsburg did not stop with Donald Trump.  She interfered with the work of the US Senate by stating that it’s “their job” to confirm President  Obama’s Supreme Court nominee, Merrick Garland. Actually, the Constitution does not require the US Senate to confirm any nominee, or to follow any schedule but its own in deciding on any nominee.

Again, any other US citizen may consider it wrong for the US Senate not to have given Judge Garland a hearing, and may publicly say so, but judges may not say so unless the matter is formally before the Court.

Justice Ginsberg did not even stop there. She said about her colleague Justice Anthony Kennedy that he was “the great hero of this term” and “I know abortion cases are very hard for him.” We cannot think of any better confirmation of the lamentable public perception that the debates among the justices on the Supreme Court are less about the law and more about who can best butter up and persuade a judicial colleague to accept one’s personal opinion. That seems to be Justice Ginsburg’s modus operandi: Broadcast some public kudos in order to curry favor with a fellow justice whose vote one needs to support one’s view. This is a gross derogation of the reputation of the Supreme Court.

Justice Ginsburg has soiled the Supreme Court. All nominees to the Supreme Court, when asked by US senators voting on confirmation for their views on current issues, always answer: I cannot respond on an issue likely to come before the court. Justice Ginsburg violated that fundamental, indispenable, obvious tenet of judicial ethics. This is especially egregious during an election like this one in which an impartial, reasoned, above-the-fray voice of the Supreme Court becomes particularly necessary and valuable.

Copyright © 2016 by the Intermountain Jewish News

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