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A Problematic Decision: Ruth Bader Ginsburg’s Failure to Recuse Herself in the Travel Ban Case

The travel ban has now been approved by a majority of the Supreme Court. While that puts to rest – at least for the time being – the constitutionality of this contentious matter, the case continues to raise questions about another question – why Justice Ruth Bader Ginsburg neither recused herself nor explained why she was not doing so. In my opinion, Justice Ginsburg behavior here is inexcusable.

Justice Ginsburg joined Justice Sotomayor’s opinion concluding that the travel ban was unconstitutional because President Trump exhibited anti-Muslim animus during the campaign and during his presidency.

During the presidential campaign, Ginsburg made several extremely inappropriate statements about Trump.

  • When asked by an interviewer about a possible Trump presidency and how it might affect the Supreme Court, she said: “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”
  • Days after that first interview, Ginsburg told a second interviewer: “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president.”
  • The prospect of a Trump presidency reminded her of something her late husband would have said: “Now it’s time for us to move to New Zealand.”
  • After another few days had passed . . .  Ginsburg . . . confided to a third interviewer: “[Trump] is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego.”

The New York Times [then] opined that “Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling.”

The next day, Ginsburg released a written statement:

On reflection, my recent remarks in response to press inquiries were ill-advised, and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.

It is good that Justice Ginsburg recognized her mistake. The problem is that her apology did not undue the damage.

Judges are subject to a code of conduct and to recusal standards. The Code of Conduct provides that a judge should not “publicly endorse or oppose a candidate for public office.” While that Code does not technically apply to Supreme Court justices, the Chief Justice has assured the public that the justices conform to it. In addition, 28 U.S.C. 455 provides that any justice or judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Further, “he shall also disqualify himself where he has a personal bias or prejudice concerning a party.”

While I am not an expert on recusal or judicial ethics, it certainly seems to me that Justice Ginsburg violated these standards and should recuse herself. At the very least, she should have explained why she did not do so. Yet, she said nothing.

Now, one might wonder whether statements about the President should really cause the recusal of a justice. After all, the President is the head of the executive branch and so is theoretically involved in all executive actions. So a recusal would be a very broad interference with the Justice’s duties.

Of course, this is one reason why a Supreme Court justice should not make extra judicial statements about a presidential candidate. But even if one thinks that statements about the President should ordinarily not lead to a recusal, this case is different. Not only is it a lawsuit against the President in his own name, it also centers more on the President’s personal behavior and character than other lawsuits against the executive branch. If one has a low opinion of Trump, then one is more likely to view his statements during the campaign as based on animus towards Muslims rather than as a sloppy way of referring to the problem of Islamic terrorism. Similarly, one would be more likely to view his subsequent policy as an attempt to implement his alleged anti-Muslim bias through a more moderate policy than as an attempt to implement a policy that is constitutional. The question here, of course, is not whether one believes that Trump exhibited anti-Muslim bias in this case. The point is that a low opinion of Trump may – and is probably likely to – influence one’s conclusion about his motivation.

Finally, there is an irony to Ginsburg’s behavior. A significant aspect of the opinion she joined was that Trump’s statements rendered illegitimate what would otherwise have been a policy that did not conflict with the Establishment Clause. Yet, that is also true of Ginsburg’s behavior – her anti-Trump statements suggest the possibility that her otherwise legitimate position was motivated by anti-Trump bias.

Like so many, Ginsburg can see defects in others that she is blind to in herself.

Reader Discussion

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on July 03, 2018 at 07:38:18 am

Excellent observations - the irony is undeniable.

It might be supposed (at least by appearance, and at least among the more cynical) her decision to not recuse herself was, (in addition to blind arrogance), relying on the notion that her vote would be needed to swing the decision against Trump.

There is evidence, however, that (re-) positioning is beginning to take place on the court's stage-left, in anticipation of that fateful day when RBG vacant seat begins to thaw in her absence.

I'm not suggesting anyone is secretly trying on RBG's robes and jabots while she isn't looking (I can't imagine anybody but maybe Breyer could squeeze into them anyway), but it does seem to be becoming apparent that she may be losing grip on her liberal court cabal; Masterpiece is a case in point – did she anticipate that two of her "lock-step" voting colleagues would find it in themselves to step-out on their own for change?

And, Kagan, surprisingly (as some have already taken special notice) has joined the conservatives in a few other decisions this term. It was hopeful when Gorsuch, former Kennedy clerk, was confirmed, that his presence on the bench would draw Kennedy (can we even say, “back”?) into the conservative sphere; perhaps he has also drawn Kagan however slight, rightward – while conventional wisdom has it that judicial drift is always from right to left, this would be about the best surprise any conservative could ever hope for.

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Paul Binotto
on July 03, 2018 at 13:39:27 pm

My goodness, this Justice is twisted and warped plus much too old to be holding this important job.
Think about some of the many statements she has made lately, "moving to New Zealand if Trump won" for one, she can't stay awake for very long nat many events and the list goes on.
The best thing for America is for her to resign.

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Kate
on July 03, 2018 at 17:04:19 pm

Hey, what's the Big Deal or the Surprise.

She is a LEFTIST - only those on the right are subject to recusal anyway.

BTW: It ain;t the first time for the Little Sleepy Dwarf, now is it?

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gargamel rules smurfs
on July 03, 2018 at 18:43:16 pm

RBG's most recent dissents in Masterpiece and in the travel ban case, as does so much of her prior legal analysis, shows that she is a lightweight in constitutional analysis. Her frequent, inappropriate public political comments indicate, as well, that RBG lacks political judgment and even common sense. Her uninspired, uninspiring encomium to Justice Scalia demonstrated that RBG lacks the literary skill, the rhetorical dignity, the moral imagination and the intellectual depth necessary to respond publicly and officially even to the untimely death of a great man, whom she would have us believe was her dearest friend.

What's to like about RBG if one does not admire humorlessness, ill-temper, bad-manners, modest intellect, historical ignorance, unremarkable verbal ability and Left-wing ideology?

After all, before Clinton put her on the map purely for political reasons, she had been MERELY a teacher at a law school of modest reputation and the general counsel of the anti-American ACLU, absolutely nothing to brag about.

Justice Scalia's affection for RBG is a great mystery, which I suspect even those who knew him well cannot explain and would not defend.

Mere love of opera does not a worthy friend or an admirable Justice make.

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Pukka Luftmensch
on July 04, 2018 at 11:46:11 am

What's that about "a mind is a terrible thing to waste". Bitterness is more so terrible.

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john trainor
on July 04, 2018 at 12:07:48 pm

Yes, “a mind is a terrible thing to waste." Take the case of the Queen vs Hillary:

Today the Brit's celebrated our Fourth of July with best wishes to America from Queen Elizabeth.

For the Brits what could have been a centuries-long grudge became cause for cooperation.

But for a sore-loser like Hillary today is a day to waste a mind, the occasion for still more spite, another year of a tiresome grudge.

I do wish we had a sweet queen, rather than a scumbag, to keep us deplorables in our place.

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Image of Pukka Luftmensch
Pukka Luftmensch
on July 05, 2018 at 12:04:28 pm

How about a little variation on a theme?

"yes, a waste is a terrible thing to MINE" - which is precisely what RBG and the Wise Latina are effectively engaged in - mining the putrescent philosophical wasteland of leftist / Progressive detritus and placing it on offer for our consumption at the sumptuary ( defined as: intended to regulate personal habits on moral or religious grounds) banquet table at the palace of the Black Robes.

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gabe
on July 05, 2018 at 12:46:56 pm

The "Waste Land" is in part about the suffering of the learned in a culture of ignorance, so your expression "a waste is a terrible thing to mine" and your reference to the Left's "putrescent philosophical wasteland" are appropriate to the odious, painful task of judicial excavation in the written ruins of RBG and Sotomayor.

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Pukka Luftmensch
on July 07, 2018 at 22:23:26 pm

[…] 5. Maybe Justice Ruth Bader Ginsburg had an obligation to recuse herself from the Trump “travel ban” case. At Law & Liberty, Michael Rappaport seems to think so. From his piece: […]

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Everything You Wanted to Know about the Declaration of Arbroath * But Were Afraid to Ask | Media Hard
on September 04, 2018 at 06:38:05 am

Whether RBG likes ir dislikes DJT personally has no bearing on her judgement, which would be based on liberal leanings. She would be against DJT just as much as conservative justices would be for him.

If a leaning disqualified a justice than no SCOTUS would be able to rule.

Implying she needs to recuse herself is the transparent conservative approach to gerrymander the court, to suppress voting, to force an outcome that they prefer.

Weak.

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Larry
on September 04, 2018 at 07:42:39 am

Rubbish, the difference is the ever arrogant RBG felt it within her prevue to speak publicly about her dislike of Trump, and that makes all the difference.

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Paul Binotto
on September 06, 2018 at 18:43:44 pm

Prevue isn't the word you're looking for.

Purview.

Also you're wrong Paul, Larry is right

Enough of this ridiculous whataboutism

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Solomon
on September 06, 2018 at 20:35:44 pm

Jumpin' Judges!, Talk about filing an untimely reply brief after the deadline (July.)

In any event, it is standard ethics for a trail or appellate judge to recuse herself if her expressions of personal hostility to a party create the appearance of bias. Admittedly, SCOTUS Justices have wide and unreviewable latitude as to recusal. But I can assure you, were RBG a trial or appellate judge her failure to recuse herself in a case involving and holding against Trump would be grounds for reversal on appeal and for sanction.

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Image of Pukka Luftmensch
Pukka Luftmensch
on September 06, 2018 at 21:19:27 pm

Better watch, Pukka, Solomon is going to correct your type o (Trial not trail) too - ha-ha!

Go easy on Solomon (and Larry) they probably just came out of their Trump-induced coma from election night Nov. 2016...I think that's whataboutism….

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Paul Binotto
on September 06, 2018 at 21:24:43 pm

These Proggy-bottoms are so precious. They demand Trump not be able to act on a travel ban because of something he said as a political candidate, then demand a sitting Justice who is supposed to be above the partisan political fray, a pass for a prejudicial and partisan comment...

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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.