What was RBG thinking?
U.S. Supreme Court Justice Ruth Bader Ginsburg launched a broadside against Republican presidential nominee Donald Trump over the the last week, calling him unfit for office. She subsequently apologized, but not before voices on the right and left criticized her for seeming to compromise the high court’s dignity and objectivity.
Even her most ardent fans were at a loss to defend her descriptions of Trump as a “faker,” criticizing his failure to hand over his tax returns and saying his presidency would be too dire to contemplate.
“I adore Justice Ginsburg,” Robert Wexler, the former Florida congressman whose autobiography is titled “Fire-Breathing Liberal,” told JTA in an email. However, he added, “It’s fair to say Mr. Trump doesn’t bring out the best in people.”
Truth is, there isn’t much wiggle room for a defense: The American Bar Association’s ethicalguidelines say flat out that a judge “shall not … publicly endorse or oppose a candidate for any public office.”
Not that the ABA guidelines have much practical consequence in this case: Supreme Court justices are inviolate – once they’re in, they’re pretty much in until they want to leave, or they die. Ginsburg, 83, however much this taints her legacy, will remain a fixture of the court.
“Judicial ethics prohibit candidates from commenting on public office,” said David Bernstein, a legal scholar who opines for the Washington Post. “Even though the Supreme Court justice are not bound by the code,” Ginsburg’s outburst “does not reflect the consensus. It was wildly inappropriate.”
So: What was she thinking?
Here are some theories:
She’s losing it.
Trump was characteristically blunt. “Her mind is shot – resign!” he said on Twitter.
Barney Frank, a longtime member of Congress and a liberal who extols Ginsburg’s legacy in advancing rights for women, said it was painful to admit, but Trump may have a point: It might be time for Ginsburg, 83, to go.
“I’m afraid it’s a sign she stayed too long and she’s not functioning,” Frank said in an interview. “I can’t imagine she would have made this mistake 15 years ago. It diminishes her legacy.”
Frank, who retired in 2013, said he was chided by friends for leaving office at the peak of his influence. Just three years earlier, the Massachusetts congressman and Sen. Christopher Dodd, D-Conn., had rewritten the rules for how Wall Street works with their Wall Street Reform and Consumer Protection Act.
“I retired a couple of months short of my 73rd birthday,” he said. “I said I wanted people to ask why I quit, not why I didn’t quit.”
Ginsburg, he said, should have quit several years ago, when the Obama administration would have guaranteed a liberal replacement.
Sometimes you’ve got to break the rules.
The prospect of a Trump presidency is so dire, ethical considerations seem to lose some of their urgency in this case, said Mark David Stern, who covers the law and LGBT issues for Slate.
“Donald Trump is not an ordinary presidential candidate, or an ordinary Republican,” Stern wrote. “He is a racist, misogynistic, xenophobic bigot. He has proposed banning Muslims from entering the United States; called Mexican immigrants rapists and criminals; supported the deportation of 11 million undocumented immigrants; routinely treated women with sexist disdain; advocated for torture of suspected terrorists; and generally dismissed the rule of law.”
Ginsburg, he said, was right to “sacrifice some of her prestige in order to send as clear a warning signal about Trump as she possibly can.”
Everyone does it.
Noah Feldman, a Harvard law professor, wrote on Bloomberg News that the rules Ginsburg was ostensibly violating were mostly honored in their breach.
He listed open clashes between Supreme Court justices and presidents dating to John Marshall, who as secretary of state campaigned for John Adams in his unsuccessful bid for reelection in 1800. Thomas Jefferson won the election, but before he took office, Adams named his friend chief justice while keeping him as secretary of state. Marshall stopped being secretary of state once Jefferson was inaugurated, but remained a notable thorn in Jefferson’s side as a justice.
Besides, wrote Feldman, “Doesn’t everyone have an outspoken Jewish grandmother?”
In Politico, Linda Hirshman, who has written a book about Ginsburg and Supreme Court Justice Sandra Day O’Connor, came up with two Jewish precedents for judicial politicking.
Abe Fortas, a justice in the 1960s, routinely consulted with President Lyndon Johnson on matters personal and political, and didn’t bother to deny it to seething congressional Republicans who denied him the chief justice spot in congressional hearings.
Louis Brandeis, Hirshman wrote, the first Jewish Supreme Court justice, paid Felix Frankfurter to advance his favored progressive causes after Brandeis joined the court in 1918. Frankfurter – for whom, coincidentally, Feldman’s professorial seat is named – became the third Jewish Supreme Court justice in 1939.
This keeping shtum can be aggravating, especially for born loudmouths.
Ronald Halber, the director of the Jewish Community Relations Council of Washington, D.C., said he was simultaneously appalled by Ginsburg’s jeremiad but also sympathetic. He was reminded that Jewish community professionals, writ much smaller, face the same dilemma as judges. They are naturally opinionated folks who take on roles that keep them from pronouncing their opinions.
“Nonprofit directors who I work with engaged in public affairs work and engaged in communications work would love to state political opinions – and people who run JCRCs are truly political,” Halber said.
“But we keep them to ourselves. I never once publicly announced who I would support for a candidate, and Justice Ginsburg has a much more important role. If you’re going to keep community, or project impartiality, you can’t project your opinion.”
Donald (and the Republicans) started it.
Dahlia Lithwick, who writes about the courts for Slate, said Trump has joined Republicans in a jihad against the courts — a lot to bear for those in the legal profession.
She listed the Republican-led Senate’s refusal to consider President Barack Obama’s nominee, Merrick Garland, and the attack by Trump on the Mexican heritage of a federal judge as two examples.
“By speaking up for a judicial branch that has absorbed one body blow after another in recent months, in stoic squint-eyed black-robed fashion, she did nothing but level the playing field,” Lithwick wrote of Ginsburg. “If the court is really going to be fair game in the nihilist rush to break government, she is signaling that the court may just need to pick up arms and fight back.”
Bernstein, whose Washington Post columns reflect conservative and libertarian views, had some sympathy for exasperation with Trump, but said Ginsburg had nonetheless crossed a red line.
“Almost everyone I know who is a member of the same class she is, is very troubled by Trump, including conservative and libertarians,” he said. “While everyone knows politics is not absent from the Supreme Court, they at least try to make the effort.”
Ginsburg, in her apology, appeared to come around to that view.
“Judges should avoid commenting on a candidate for public office,” she said in a statement. “In the future, I will be more circumspect.”