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Jul 11 2016

One Opinion Judge Ginsburg Should Have Kept to Herself

Disclaimer: The opinions in this blog post do not lessen my respect and admiration for Ruth Bader Ginsburg, affectionately known as the Notorious RBG. That may not be rational but love is blind.

Supreme Court Justice Ruth Bader Ginsburg in an interview in this Sunday’s NY Times stated that she and her husband would move to New Zealand if Donald Trump were elected President. She added:

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 went on to discuss her distress that the US Senate had not confirmed Merritt Garland to the Court and added that it would be nice to be more regularly on the “5” side of a 5-4 decision. She said even more, discussing her views on decided cases – wishing for the overturn of Citizens United and saying that a few of the 4-4 cases would have gone the other way if Justice Scalia were still on the bench.

Many people may undoubtedly think its refreshing and interesting to hear a Justice of the Supreme Court speak so candidly on issues like this. But it is wrong – flat out wrong. SCOTUS should be above the fray of Presidential politics – I know that may be a dream state in our current environment but not too long ago, a sitting Supreme Court Judge would never opine on any issue that may come before the Court and that restriction covered almost all issues since it is foreseeable that just about any legal controversy can end up in the Supreme Court.

The Notorious RBG

The Notorious RBG

And its not just RBG . This new pattern of SCOTUS judges talking really began with Clarence Thomas who made a stir many years ago by accepting huge speaking fees to address conservative think tanks- he is a fan favorite at Koch Brothers’ events for example. Justice Scalia traveled around the world to speak at similar events. But it besmirches the Court’s reputation to weigh in so directly as RBG did against a pending Presidential candidate. The Court itself is already more politicized and polarized than it has ever been. Essentially, Judge Anthony Kennedy is the Supreme Court for all intents and purposes as you can easily figure out where the other seven will fall on most issues. The court’s decision often take direct jabs at one another and attack the very language used by the other side in a personal way not seen before this Court’s current composition. The country did not need any further evidence of just how politicized the Court has become.

Donald Trump recently made news when he said the Mexican-American judge presiding over the Trump University fraud case should recuse himself due to his ethnicity and Trump’s Anti-Mexico statements. If Trump becomes President, would he ask RBG to step aside on cases dealing with the Federal government? I think its a safe bet that’s exactly what would happen.

Maybe its her age (she’s 83). My Mom is 83 and my Dad is 91 and any filter on their thoughts and words is gone – they say whatever is on their minds. Or maybe RBG was trying to bring attention to the most important issue of this election – that the winner may get to appoint at least one and as many as three Justices within the first term. But by publicly stating her distaste for Donald Trump, Judge Ginsburg went too far and diminished herself and the Court. Let’s hope it ends here.

10 comments

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  1. Four Fingered Freddy Fly Fly

    Oscar writes:

    “an interview in this Sunday’s NY Times stated that she and her husband would move to New Zealand if Donald Trump were elected President”

    She did not say that. Her husband is dead for starters. And she’s stating it as something he would have said like I might say I’m moving to Canada or the country will go down the toilet not an actual travel plan which is what it sounds like the way you tell it.

    This is what she said according to the NYT article:

    ‘It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

    “‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully’

    On your other point.

    When Roberts said he just calls balls and strikes were you lapping it up ? Or you just prefer everyone play the game as if our democracy will melt away if we say out loud what we already know — RBG leans left and isn’t voting for Trump.

    1. Oscar Michelen

      By saying that in that way she clearly implied that it was also her opinion. No one thinks she is actually moving to New Zealand if Trump wins. It is a clear expression of her distaste and disagreement with Trump as a Presidential candidate. While I agree with her 100%, as a sitting SCOTUS judge she should not have opined about an upcoming election so strongly. Roberts saying “I just call balls and strikes” was said during his confirmation hearing in reference to his judicial temperament. That’s a totally different scenario and was 100% appropriate as he was responding to questions relating to his confirmation. Sitting SCOTUS judges should not opine on politics or evn on issues that may come before them.

      1. Steve Sanabria

        I completely agree with this blog.

        Excellent work.

        1. Oscar Michelen

          Thanks

      2. FFFFF

        RGB was honest. Roberts was dishonest.

        Though I applaud him for keeping a straight face when stating he “just calls balls and strikes.”

        Thank you for the third graders lecture on what SCOTUS judges should do. I think you should direct it to Trump who seems to have no understanding of the role of the justices (or POTUS for that matter or much of anything other then peddling his “brand.”).

        You applaud the dishonest move and poo poo RGBs honesty. No wonder lawyers enjoy such a stellar reputation.

        1. Oscar Michelen

          Never said RBG wasn’t honest or that Roberts was. If you cant tell the difference between their two statements then maybe third grade is about your level.

          1. FFFFF

            You went to one of the absolute worst law schools in the country so I’m not sure it’s wise to bring up academic achievement, Professor.

            I won’t address how you spin what I actually wrote — I realize it’s SOP for hack lawyers.

          2. Oscar Michelen

            I went to the law school that offered me a full scholarship and from which I graduated magna cum laude and have had successful career for over 30 years so I have nothing but love for New York Law School. My career to date and what I have achieved is the only response needed to the “hack lawyer” comment.

  2. James Tullis

    Many years back during the State of the Union addresses many of the Supreme Court did not show up as protest to Barack Obama. The ones that did show up outrageously shook their heads, yelled, chanted, scoffed at President Obama. Each and every head shake, the interjection and appearance rudeness was itself more devastating then a eloquent woman speaking her mind as a responsible Supreme Court leader.
    This is America and in America you’re entitled to your opinion no matter how wrong you are

    1. Oscar Michelen

      James: I fully agree that what Judge Alito did during the State of the Union speech was unacceptable, as was the non-attendance to each of Obama’s State of the Union speeches by some of the other justices. As they say though two wrongs don’t make a right.

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