U.S. Supreme Court Justice Ruth Bader Ginsburg, long an activist for all things far left and liberal and well-known already for letting her tongue slip about court matters, now is even drawing criticism from her liberal fans for letting rip a blast at presumptive GOP presidential candidate Donald Trump.
In a clearly planned move, she unleashed harsh criticism of Trump in at least two interviews, with the Associated Press and New York Times.
She told the AP of a Trump presidency, “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”
And to the Times, she said, “For the country, it could be four years. For the court it could be – I don’t even want to contemplate that.”
She also shared a “joke” that was between her and her now-deceased husband, Marty, “Now it’s time for us to move to New Zealand.”
“This was a remarkably stupid and egregious comment for a sitting Supreme Court justice to make on the record,” wrote Daniel Drezner, professor at Tufts University and a regular contributor at at the Washington Post.
At his column there, he wrote, “If Spoiler Alerts has had a theme for 2016, it’s been that Donald Trump is massively unfit to be president, and that his campaign has challenged all sorts of norms that have mattered in American politics for quite some time.”
But he wrote that since Ginsburg was “speaking plainly,” she should be returned the favor.
“Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas, but they never weighed in on presidential politics quite like this. The closest example I can find is that in January 2004, during an election year, Scalia went on a hunting trip with Vice President Dick Cheney. That action alone got legal ethicists into a lather.”
The New York Times reported Trump responded to Ginsburg’s “disdainful remarks” by calling them “highly inappropriate.”
And he said, “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 continued, the report said, “It’s so beneath the court for her to be making statements like that. It only energizes my base even more. And I would hope that she would get off the court as soon as possible.”
Trump lashed out on Twitter Wednesday, saying:
Drezner continued, “What Ginsburg did was way worse, though. Indeed, I can find no modern instance of a Supreme Court justice being so explicit about an election – and for good reason.”
He cited the alarm expressed by the Chicago Tribune, which said, “Supreme Court justices don’t – at least until now – take public stands on presidential or other elections. One reason is that they are barred from doing so by the federal code of judicial conduct, which states that as a general rule, judges shall not ‘publicly endorse or publicly oppose another candidate for public office.'”
And Volokh Conspiracy contributor Jonathan Adler wrote, “These comments seem quite inappropriate for a sitting member of the federal judiciary.”
Drezner noted that there was bound to be conflict because of the 4-4 ideological split in the court following the death of Scalia, and the U.S. Senate’s commitment to take up consideration of a replacement as soon as a new president is in office.
“But if eroding trust was a slow-burning political fire, Ginsburg just poured gasoline on it. There are certain privileges that one sacrifices to be a sitting member of the federal judiciary and making explicitly partisan comments about presidential elections is one of those privileges.”
He said specifically Ginsburg “violated Canon 5 of the Code of Conduct for United States Judges, which states judges should not “publicly endorse or oppose a candidate for public office.”
“Supreme Court justices are not strictly bound by that code, but they nonetheless act as examplars for the rest of the judiciary, and this canon seems pretty important,” he wrote. “She should repair the damage and apologize for her remarks as soon as possible.”
At the Washington Times, Kelly Riddell noted, “Political. Yes. Crossing the line for a justice? Probably, experts say.”
From Louis Virellit III, a Stetson University professor who wrote a book on Supreme Court recusals, was the suggestion that such comments may be grounds for Ginsburg’s recusal in future cases involving a Trump administration.
“I find it baffling actually that she says these things,” said Arthur Hellman, a law professor at the University of Pittsburgh. “She must know that she shouldn’t be. However tempted she might be, she shouldn’t be doing it.”
Jeffrey Toobin wrote at CNN, “At the practical level, Ginsburg will certainly have to recuse herself if any Bush v. Gore-style lawsuit comes before the court during this election season.
“More than that, though, Ginsburg’s statements have set a precedent that the court as an institution will want to avoid. Imagine if all nine justices announced their presidential preferences in the advance of each election. Imagine further that they took sides in primary battles, too. It’s folly to pretend that judges and justices have no political views, or that their legal views are entirely separate from their judicial philosophies. But there is value in at least formal neutrality in these most partisan battles.
“Any smart lawyer – or smart citizen – can see that. So, in short order, will Ginsburg.”
In fact, she was called out by Alabama Supreme Court Chief Justice Roy Moore, known for his opposition to federal courts imposing same-sex “marriage” on states, who said she should be penalized.
“It’s called impeachment,” he told WND in an interview at the time.
As WND reported, Ginsburg has performed same-sex wedding ceremonies and made supportive public statements. Justice Elena Kagan also has performed same-sex weddings and promoted “gay” rights at Harvard’s law school while she was at its helm.
Critics contend the two justices appeared to be violating judicial ethics rules that require recusal from a case in which there is even the appearance of a conflict of interest.
A brief from the Foundation for Moral Law, for which Moore worked before he was elected to the court’s highest position in Alabama, explained that Canon 3A(6) of the Code of Conduct for United States Judges provides: “A judge should not make public comment on the merits of a matter pending or impending in any court.” 28 U.S.C. sec 455(a) mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The foundation pointed out in a submission to the Supreme Court prior to its creation of same-sex “marriage”: “Four weeks after this court granted certiorari in these cases, Justice Ginsburg was asked whether parts of the country might not accept same-sex marriage being constitutionalized. She answered: ‘I think it’s doubtful that it wouldn’t be accepted. The change in people’s attitudes on that issue has been enormous … It would not take a large adjustment.'”
Ginsburg’s interview was with Bloomberg News on Feb. 12.
The motion said the “extrajudicial comments about a matter pending before the court violate Canon 3A(6) of the Code of Conduct for United States judges: ‘A judge should not make public comment on the merits of a matter pending or impending in any court.'”
The controversy resurfaced, because even after being told of the appearance of a conflict of interest, Ginsburg again officiated at a same-sex wedding, as the New York Times reported.
The paper said that with “a sly look and special emphasis on the word ‘Constitution,’ Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.”
“No one was sure,” the paper said, “if she was emphasizing her own beliefs or giving a hint to the outcome of the case the Supreme Court is considering whether to decide if same-sex marriage in constitutional.”
The same-sex “marriage” decision would have gone the other way had Ginsburg or Kagan recused as experts say they should have.
Moore told WND at the time the Constitution’s option for impeachment appears to apply, since Ginsburg’s actions could be perceived as flouting the concept of a neutral judiciary. He noted that besides the well-known “high crimes and misdemeanors” that would subject a federal official to impeachment, Article 3, Section 1 of the Constitution also provides that judges “shall hold their offices during good behavior.”
Moore told WND, according to an analysis by historian Raoul Berger at Harvard Law School in 1970, that clearly suggests an end to “good behavior” is accompanied by an end of their “offices.”
“His conclusion is there is an implied power to remove judges whose bad behaviors fall short of high crimes and misdemeanors,” he said. Since there are no “dead words” in the Constitution, “every word has a meaning.
“The remedy rests with Congress,” he told WND, although anyone could raise the question.
Fox News reported Kagan performed a Sept. 21, 2014, same-sex marriage for her former law clerk, Mitchell Reich, and his partner, in Maryland. NPR reported Ginsburg performed a same-sex marriage at the Kennedy Center for the Performing Arts in Washington, D.C., in August 2013.
See Ginsburg’s comments on same-sex “marriage,” while the case was pending: