Two of the nation’s largest liberal newspapers, The Washington Post and The New York Times, agree that U.S. Supreme Court Justice Ruth Bader Ginsburg’s public comments about GOP presumptive nominee Donald Trump this week would have been better left unsaid.
In an interview with the Times published Sunday, Justice Ginsburg said, “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.”
While the Times has no love for Trump, they weren’t happy with Justice Ginsburg’s comments:
“There is no legal requirement that Supreme Court justices refrain from commenting on a presidential campaign. But Justice Ginsburg’s comments show why their tradition has been to keep silent.
In this election cycle in particular, the potential of a new president to affect the balance of the court has taken on great importance, with the vacancy left by the death of Justice Antonin Scalia. As Justice Ginsburg pointed out, other justices are nearing an age when retirement would not be surprising. That makes it vital that the court remain outside the presidential process. And just imagine if this were 2000 and the resolution of the election depended on a Supreme Court decision. Could anyone now argue with a straight face that Justice Ginsburg’s only guide would be the law?
Mr. Trump’s hands, of course, are far from clean on the matter of judicial independence. It was just weeks ago that he was lambasting Gonzalo Curiel, the United States District Court judge overseeing a case against Trump University, saying that as a “Mexican,” the Indiana-born judge could not be impartial.
All of which makes it only more baffling that Justice Ginsburg would choose to descend toward his level and call her own commitment to impartiality into question. Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.”
The Post, which said that while none of Justice Ginsburg’s disparaging comments were untrue, as far as they know, she was wrong to have made them:
“However valid her comments may have been, though, and however in keeping with her known political bent, they were still much, much better left unsaid by a member of the Supreme Court. There’s a good reason the Code of Conduct for United States Judges flatly states that a “judge should not .?.?. publicly endorse or oppose a candidate for public office.” Politicization, real or perceived, undermines public faith in the impartiality of the courts. No doubt this restriction requires judges, and justices, to muzzle themselves and, to a certain extent, to pretend they either do or do not think various things that they obviously do or do not believe. As the saying goes, however, “hypocrisy is the compliment vice pays to virtue.”
As journalists, we generally favor more openness and disclosure from public figures rather than less. Yet Justice Ginsburg’s off-the-cuff remarks about the campaign fall into that limited category of candor that we can’t admire, because it’s inconsistent with her function in our democratic system. Only 16 years ago, a key issue regarding the outcome of the 2000 presidential election wound up at the Supreme Court, whose decision in favor of Republican nominee George W. Bush, backed by five conservative Republican appointees, was regarded as controversial by many and nakedly partisan by some. Think of how that situation would have played out if one or more of the justices had previously mused about leaving for New Zealand in the event of a victory for either Mr. Bush or his opponent, Democrat Al Gore.
When the story of Justice Ginsburg’s career is written, there will be many highlights—her pioneering work as a lawyer advocating women’s rights; her many trenchant opinions on the high court in defense of American society’s underdogs. Her performance this week, alas, confirms her fallibility.”
Justice Ginsburg is pretty confident that Hillary Clinton will win the presidential race and ensure decades of liberal dominance of the Supreme Court. But she apparently wanted to remind liberal voters that that scenario would be in danger if Trump wins in November.
Photo by national museum of american history