Despite a degree from Columbia Law, a stint with the ACLU, 13 years on the U.S. Court of Appeals and twenty-three years on the U.S. Supreme Court, Justice Ruth Bader Ginsburg has decided to reinvent herself at the age of eighty-three; apparently, being a political commentator with an unabashed dislike for Donald Trump fits her better.
She probably should have stuck with being a Supreme Court Justice.
In an interview with New York Times reporter Adam Liptak last Friday, Justice Ginsburg said, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.” Adding to this, she said, “Now it’s time for us to move to New Zealand.” Upon first glance, any supporter of the Justice, known endearingly as the ‘Notorious R.B.G,’ would instantly rally at this smackdown of Mr. Trump, paying little attention to the disturbing concerns that arise following the interview.
Despite immediate concerns over her brazen words by the political right, including a humorously baffled House Speaker Paul Ryan, Justice Ginsburg cathartically released further thoughts when telling CNN’s Joan Biskupic, “[Trump] is a faker … He really has an ego.” Therein lies the reason behind the firestorm that has erupted since the Justice decided to leak her personal opinion to the press Justice Ginsburg’s inability to remain impartial is a distinct problem.
In the United States, Justices are appointed by the executive office, with a vote of approval conferred by the Senate. This process, recently highlighted by the Senate’s refusal to hear the nomination of Judge Merrick Garland, was designed to insulate the judicial branch from the realm of politics and public opinion. While Justices are appointed by partisan leaders, their lifelong terms prevent retaliation by the public and prevent loyalties to new administrations every four years. In essence, this system is meant to be the wax that protects the ears of the Judicial branch as it sails by siren calls which seek to intervene in legal proceedings.
In this sense, Justice Ginsburg is basically Odysseus.
Think back to the year 2000, in which George Bush brought Al Gore before the Supreme Court, placing an injunction on the recounting of general election ballots in Florida. The decision by the Court found that a recount of the ballots would be unconstitutional under the Fourteenth Amendment, essentially handing the win to who would become the president for eight years. Now, envision that exact situation occurring this December, with the only differences being Donald Trump and Hillary Clinton. How could anyone say that Justice Ginsburg would be able to put her politics aside and decide without favoring Clinton?
When the Justice revealed her bias against the GOP nominee, she created a contentious situation for her future rulings, provided that Mr. Trump wins the coming election. How so? According to Section 28 US, Code 455, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The law continues, stating, “where he has a personal bias or prejudice concerning a party.” But here’s the kicker; the final arbiter on recusal from a case is the judge themselves. It’s a personal call and, unsurprisingly, it gets overlooked frequently.
What has become apparent is that Justice Ginsburg is no longer able to keep her political leanings private, a division as crucial to the Supreme Court as the justices themselves. The course of action that the Notorious R.B.G should take boils down to an immediate resignation from the Court, as her comments have created a clear personal conflict with current and future cases brought before the Supreme Court. Instead of offering up a halfhearted apology for her week-long lapse of judgement, maybe she should pack her robe and embrace her new career as a political commentator.