Tipsheet

Confirmed: Ruth Bader Ginsburg Not Even Pretending to be Impartial Constitutional Arbiter Anymore

Guy Benson
Guy Benson  |  July 12, 2016 1:06 PM

Whenever Supreme Court Justice Ruth Bader Ginsburg speaks, the Left squeals with the delight. The 'Notorious RBG' just destroyed those backwards right-wingers again, they swoon, cheering her escalating penchant toward issuing baldly political statements in the press. She seems to relish the applause. In the aftermath of the Court's correctly-decided -- but narrowly so -- Hobby Lobby case on religious liberty (by the way, you should read Justice Alito's warning on the direction of jurisprudence safeguarding those rights), Ginsburg declared that her five colleagues who issued the majority ruling didn't understand the issues at hand because they were men.  She ignored the fact that several female appellate judges came down on the same side as SCOTUS' all-male majority in lower court rulings, and that Hobby Lobby's legal team was comprised of women.  All irrelevant.  When you're auditioning to be a Salon.com guest blogger, it's generally encouraged to omit inconvenient facts and eschew non-demagogic arguments.  In recent comments to the New York Times, Ginsburg raised eyebrows with a series of pontifications about the 2016 presidential election, as well as highlighting some legal precedent she'd like to overturn.  The Washington Post notes the reaction to this 'YOLO' attitude, which many are arguing offends the spirit of the federal judicial code of conduct:

In a new New York Times interview, Ginsburg doesn't hold a thing back when it comes to the 2016 election. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” Ginsburg told the Times' Adam Liptak. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” Ginsburg also recalled something her late husband said about such matters: "Now it’s time for us to move to New Zealand." ...Ginsburg is known for pushing the bounds of a justice's public comments and has earned something of a cult following on the left. But some say she just went too far. "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." Similarly, Howard Wolfson, a former top aide to Hillary Clinton and former New York City mayor Michael Bloomberg, said Ginsburg shouldn't have said it

..."It would cast doubt on her impartiality in those decisions," Hellman said. "If she has expressed herself as opposing the election of Donald Trump, her vote to strike down a Trump policy would be under a cloud." Ed Whelan, president of the Ethics and Public Policy Center and who once clerked for conservative Justice Antonin Scalia, has criticized Ginsburg before for her public comments. But he said this one is more indefensible than any of its predecessors. "I think this exceeds the others in terms of her indiscretions," Whelan said. "I am not aware of any justice ever expressing views on the merits or demerits of a presidential candidate in the midst of the campaign. I am not a fan of Donald Trump's at all. But the soundness or unsoundness of her concerns about Donald Trump has no bearing on whether it was proper for her to say what she said." Rick Hasen, a law professor at the University of California at Irvine, said it's valid to question how Ginsburg might have to handle a potential Trump case — up to and including a Clinton v. Trump case.

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The Post story goes on to cite several instances in which federal judges were admonished or sanctioned for appearing to engage in partisanship:

It's not clear that there is any real precedent for what Ginsburg just did. Then-Justice Sandra Day O'Connor was criticized by some in 2000 after Newsweek reported her saying, "This is terrible," at an election-night watch party after Florida was prematurely called for Al Gore. Some argued that she should have recused herself from Bush v. Gore. Hellman noted that in 2004, a lower-court judge was forced to apologize for appearing to advocate against Bush's reelection. Guido Calabresi, a judge on the Court of Appeals for the 2nd Circuit, had compared the 2000 Bush v. Gore decision to the elevation of Mussolini in Italy and Hitler...Calabresi was formally admonished for his comments, but that's not a possibility with Ginsburg, because Supreme Court justices are not beholden to such rules when it comes to their public comments. Justices are generally more circumspect because of professional pressure and self-discipline — not because there is a written rule that they must be. But for Ginsburg, it's clear that this has become a calculated risk that she is going to take. The New York Times comments weren't even the only time she has been critical of Trump. In an Associated Press interview published Friday, she also said a Trump presidency is basically unthinkable...That's twice in two interviews — i.e. not a coincidence.

All of this has fueled speculation about possible future recusals and appearances of impropriety. Here's one example, via veteran political analyst Jeff Greenfield:

Let's be real, though: What are the chances that an activist as brazen as Ginsburg would engage in sober introspection and choose to step away from a case in which she faces an opportunity to railroad her agenda into new, binding precedent?  And then there's this:

She also spoke of her yearning to reverse Citizens United, effectively embracing the criminalization of political speech against Hillary Clinton in an election year. During the oral arguments in that case, an Obama administration lawyer literally argued that book banning could be permitted under the proper interpretation of campaign finance law.  RBG's Heller comments are also quite revealing. They confirm that the Court's most prominent and committed liberal activist does not believe that the Constitution's plain language (reinforced by a clear historical record of original intent) protects the individual right to own a firearm. This same woman recent joined a majority opinion that determined that the so-called "right" to abortion -- which appears nowhere in the Constitution -- is so inviolable that regulating the practice based on commonly-accepted sanitary and health protocols is unconstitutional. It's almost as if the Ginsburg wing of the judiciary views itself as a super-legislature, imbued with he power to contort our founding document to permit or prohibit virtually anything, depending on its members' increasingly-undisguised worldview.  I'll leave you with this headline, which isn't much of an exaggeration:

Ginsburg laments the fact that the Supreme Court effectively torpedoed President Obama's obvious (and self-assessed) overreach on executive amnesty, but is relieved that at least Justice Scalia -- her supposed dear friend -- was dead before the opinion was issued.  If he were still alive, she says, the Court would have thrown out Obama's abusive action to "protect immigrants," but with precedent attached.  Phew.  I hereby nominate Ginsburg to succeed Debbie Wasserman Schultz at the DNC.  Do I hear a second?

UPDATE - She's tripling down now, troubling a growing number of left-leaning observers.