Supreme Court Justice Ruth Bader Ginsburg shocked the judicial and political world this week when she publically criticized a presidential candidate during the campaign. While Supreme Court Justices’ have no formal code of ethics that limit their comments on public issues, the decorum of the Court requires the Justices’ to be non-partisan and “above the fray.”
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… Now is the time for us to move to New Zealand.
— Justice Ginsburg – The New York Times
He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. . . . How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.
— Justice Ginsburg – CNN
Ginsburg might have to recuse herself on key issues
While the above statements might be music to the ears of supporters of Hillary Clinton, it does raise a serious question about Justice Ginsburg’s ability to remain impartial in future cases involving Trump that might come before the Court.
As an extreme example, should the 2016 campaign end as the 2000 campaign did with the deciding issue being ruled on by the Supreme Court, it would be virtually impossible for Justice Ginsburg not to recuse herself based on her comments. With the Court already down one Justice due to the vacant seat of Justice Scalia, it would leave the Court with only seven Justice’s to rule on a critical issue. Justice Ginsburg remarks could present the nation with an unprecedented crisis.
Donald Trump Fires Back
Never one to hold back his opinion, Donald Trump fired back at Justice Ginsburg late in the day:
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.
— Donald Trump – The New York Times
Justice Ginsburg, who was appointed to the Court by President Bill Clinton in 1993, shows no signs of regret at her remarks. Chief Justice John Roberts has not commented on the Ginsburg controversy but earlier this year he said, “We don't work as Democrats or Republicans.” Justice Ginsburg has made it clear that she does indeed have a partisan view of the Republican candidate.
The Washington Post summed up the day’s controversy with an editorial:
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.
— The Washington Post Editorial Board