WASHINGTON, July 14, 2017 — Has Justice Ruth Bader Ginsburg compromised the Supreme Court?
Ginsburg’s open rebukes of presumptive GOP nominee Donald Trump came in at least three different interviews, guaranteeing that they were made with malice aforethought. Ginsburg not only opened the door to further criticism of the court as politicized; she handed critics bundles of ammunition, gift wrapped.
Her half-hearted apology this week was reluctant and forced, with all the sincerity of Hillary Clinton promising to take better care of national secrets.
The damage is done. Ginsburg’s half-hearted mea culpa sounds like an unwanted obligation, not genuinely contrite.
Ginsburg’s stinging condemnation of Trump was targeted at independent voters and Senator Bernie Sanders’ supporters who are uneasy about Hillary Clinton as the democrat presidential nominee. She stressed,
“I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president”
“For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.”
She said jokingly that if he were alive, she and her deceased husband would move to New Zealand in the event of a Trump victory. America could only be so lucky. In a later interview with CNN, she condemned Trump at length as a “faker.”
Trump did not take her comments lying down. He came back at the aged, liberal justice, suggesting that she is in mental decline and condemning her judicially unprofessional comments.
“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign … frankly, I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.”
Trump has called for Ginsburg’s resignation. At 80, Ginsburg is the oldest justice on the court, and there are many who would agree that she should step down, not because of her age, but because her comments crossed a line of judicial ethics.
That line is binding on other federal judges, but not on the Supreme Court. It does, however, serve as an important psychological barrier.
Everyone knows that the Supreme Court is politicized. The frequent division of the justices on divisive issues along conservative-political lines is evidence enough, and justices have in the past let slip political opinions and allowed themselves close personal friendships with prominent politicians.
Supreme Court justices have never been entirely above politics, but the overt politicization of the court is something new. And it poses the clear danger of reducing the prestige and moral authority of the court, rendering its judgments suspect and opening the door for presidents to dismiss them as just politics from another venue.
For Americans who feel that an independent judicial system is the line in the sand between politics and justice, this is dismaying. It calls into open question the impartiality of the court.
It has been frequently asked in the last week, what would Justice Ginsburg do if a Bush-Gore-style electoral dispute arose between Trump and Clinton? What would she do if a President Trump had one of his administration’s actions reviewed by the court? Would she recuse herself from the case?
By openly expressing a political bias that any informed person already knew she had, Ginsburg has potentially done harm to the liberal issues—abortion rights, Obamacare, gun control—that she has supported. It is now entirely fair to see her opinions not as careful judicial reasoning, but as politically motivated, designed to achieve a pre-determined result.
Again, everyone knows that the justices have their political preferences, but Ginsburg’s chatter threatens to make those preferences openly political.
Americans are already afraid that their justice system is rigged. When he FBI refused to recommend that Clinton be indicted on the heels of her husband’s private meeting with the attorney general, a common observation was, “too big to indict.” Rigged and politicized is even worse than rigged.
Is justice the same for the powerful as it is for the weak? Of course not, but until recently, we could pretend that it was. When Leona Helmsley said, “we don’t pay taxes, taxes are for little people,” America was shocked. Now we wearily accept “laws are for little people,” with millions supporting a candidate who embodies that philosophy.
But if justice wasn’t equal, at least it was non-partisanly unequal. Wealth was an insulation for both sides. If the court is openly politicized, we are no better than Venezuela, whose President Maduro keeps his power partly by his control of the courts, or Russia, where President Putin destroys whom he will with the blessing of the legal establishment.
Are our civil liberties are now up for partisan political debate? Not yet, but the answer should have been a ringing, “Never!”
When Trump says “Make America great again,” he incites panic within the chattering class.
When Justice Ginsburg says, “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” take it with a preverbal grain of salt.
When she says, “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect,” think of her with her hand in the cookie jar, unrepentant, but sorry that she was caught.