Analysis: Should Justice Ginsburg have bashed Trump’s run for president?

Maybe Hilary Clinton is not the woman who Donald Trump needs to worry most about.

By
July 13, 2016 19:11
2 minute read.
Ginsburg Trump

Ruth Ginsburg and Donald Trump. (photo credit: REUTERS)

Maybe Hilary Clinton is not the woman who Donald Trump needs to worry most about.

US Supreme Court Justice Ruth Bader Ginsburg has started a firestorm over her apparent condemnation of presumptive Republican presidential nominee Trump and her implied preference for presumptive Democratic nominee Clinton.

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Ginsburg said regarding a Trump presidency that “I don’t even want to contemplate that” and made a joke about moving to New Zealand.

Are Supreme Court justices allowed to publicly take a side in a presidential election or any other election for that matter? Trump, never one to duck a fight, said “her mind is shot – resign.

The breakdown of how her statements are being received from the rest of the political class has predictably broken down on party lines.

Republicans are saying she clearly crossed a line.

No one other than Trump himself has called for her to step down, but conservative scholars are openly discussing that she might need to recuse herself from hearing cases involving Trump because she has publicly shown she is biased against him.

Conceivably, if the Supreme Court were called upon to decide a Bush vs Gore type of election dilemma, or any other cases involving a Trump administration if he wins, she could be required to step aside. This could involve a lot of cases.

On the Democratic side, no one is defending her public comments as a positive development, but more as an oddity.

Their message is that Trump himself has crossed so many redlines and made so many statements which damage the country’s basic social fabric that they “understand” why she said it, even if they think her role as a justice should have precluded her from saying it.

So who is right? There does not seem to be a clear answer.

While there is no precedent of a Supreme Court justice taking such a public stance over a pending election, there are numerous instances where justices have refused to step aside from cases where their public activities, dinners they attended, or endorsements by their spouses have made it clear that they were probably less than completely impartial on the matter.

A group called Fix the Court, which seeks to give justices fixed terms and change other structural issues on the court, has publicized a study that justices recuse themselves from a case when it relates to previous jobs, investments or family ties.

There were no examples in the study of justice recusing themselves due to ideology, even as the Code of Judicial Conduct seems to clearly say that judges are prohibited from making speeches for or against a candidate.

One possible answer is that Ginsburg’s statement is bringing the truth further out into the open.

Most people today already believe judges are influenced by their political beliefs on some level, especially after only Republican-appointees voted for George W. Bush and only Democratic-appointees voted for Al Gore in deciding the 2000 election.

So whatever the code says, so far no one is shocked beyond violations of expected decorum that Ginsburg, one of the iconic leaders of the women’s rights movement, prefers Clinton over Trump.


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