July 11, 2016

Did Justice Ginsburg express so much contempt for Donald Trump that she'll have to recuse herself, if he becomes President, in all the cases involving the President?

This Washington Post column entertains that proposition.

Imagine a Bush v. Gore type election this year, with the outcome subject to a Supreme Court vote. There will only be 8 Justices on the Court. If Ginsburg has to recuse, it produces a 4-to-3/conservative-liberal balance on the Court.

The irony! Ginsburg's horror at the idea Donald Trump winning the presidency could cause Donald Trump to win the presidency.

Here's the NYT interview where Ginsburg displayed her political feelings. What she said was: "I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president... For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” And then, quoting her husband, she added, "Now it’s time for us to move to New Zealand." We're told she was "smiling ruefully."

IN THE COMMENTS: HoodlumDoodlum said:
Professor: how do you feel about Ginsburg's statement and/or her decision to make it? 
I don't think she really said that much. She just said "I can't imagine...." You have to flesh it out with ideas of your own for it to mean anything. I would have ignored it. I ignored the interview when it appeared in the NYT, even though I always read the Times and the story was pushed heavily on the front page. I was annoyed at the NYT playing to its readers in the usual way — fawning over Ginsburg, eager to serve up more Trump hate in what must have seemed to be a delicious new form. But when The Washington Post took it so seriously and interviewed lawprofs about recusal, it got interesting. I would have left her alone to have a little freedom of speech about politics, and it's helpful to the people to get some information on how political the Justices might be. What Ginsburg most clearly expressed is that she wants Scalia's seat filled with someone who's on her side.

71 comments:

Michael K said...

She won't, though. Leftists never have to say you're sorry.

pellehDin said...

Can anybody pretend that she would indeed recuse herself in such a case? Trump is not the only object of her contempt.

HoodlumDoodlum said...

Professor: how do you feel about Ginsburg's statement and/or her decision to make it?

The Bergall said...

Would never thought of that one...........

n.n said...

Apparently, she expressed the same contempt for her "friend" Justice Scalia. It must be difficult to maintain the airs of righteousness with a pro-choice religion. Still, she is holding up well over the years, decades, centuries...

n.n said...

So, what is it about Trump that provokes this unprecedented phobia on the far left and far right?

We know that Obama progressed the status quo. I wonder what they expect Trump will do.

sean said...

HoodlumDoodlum: Prof. Althouse NEVER commits herself to a position that would offend her lawprof colleagues. Sometimes she runs a post, like this one, that might provoke criticism of some leftist idiocy, and then later claims that she has taken a stand, but in fact she never does.

bagoh20 said...

I'll take a guy uneducated on The Constitution over someone who has spent a life on it and still hasn't figured it out.

Basil said...

Classic "Rules are for the little people and especially for Republican little people." She should be forced to resign in disgrace after being subpoenaed to testify before a select committee of the Congress.

Never mind.

Sebastian said...

Recuse? Nah. She'll stick it to him with relish, if she lives. If he wins, of course. Big if. But to FU RBG would help me vote for DJT.

Not that it makes much difference, but the fact that Prog "judges" don't even pretend to stay above the fray anymore conveys their confidence: they won. It's part of the Tushnet scenario: soon, they won't even have to pay lip service to the Constitution or precedent or anything they dislike anymore.

mockturtle said...

"Now it’s time for us to move to New Zealand."

No love for, nor loyalty to, America in that woman! Good effing riddance!

Left Bank of the Charles said...

There is no problem if she moves to New Zealand. What she's thinking is that it will be 5-4 rather than 4-4 and she doesn't want to stick around for that. She may convinced to sit through it, and she'll have the Alito precedent on recusal.

Kathryn51 said...

This is what concerns you, Professor??

How about her comment regarding Justice Scalia and the US v Texas case (immigration): “Think what would have happened had Justice Scalia remained with us,” she said.

Her best buddy on the Supreme Court and she appears to cheer the death of her colleague. She shouldn't recuse herself - she should resign.

Ken B said...

It is left to the conscience and honor of the judge I thought, whether to recuse. Here I mean. Don't know about New Zealand.

Bay Area Guy said...

Snooty, elitist left-winger - but that's redundant.

D. said...

>So, what is it about Trump that provokes this unprecedented phobia on the far left and far right?<

national review and #nevertrump are not the "far right"

D. said...

rbg = rootless cosmopolitan. buzzy lives up to stereotypes.

David said...

Of course she can not "imagine" it. There is a lot that is outside her scope of imagination, much of it ordinary life in the vast nation for which she announces the law.

Michael Fitzgerald said...

Lets' see, Trump Derangement Syndrome, mute about the crimes of Clinton, cheers the death of a conservative, threatens to move to another country if she doesn't get her way... Yeah, this Supreme Court justice is just a typical despicable bigot progressive democrat party member idiot. The next republican president needs to take a page from FDR's playbook and pack the court with 5 or 6 conservative judges to dilute the progressive poison.

chickelit said...

@D: So, what is it about Trump that provokes this unprecedented phobia in both liberals and conservatives?

I have my theory but I'd like to hear yours.

Unknown said...

"The irony! Ginsburg's horror at the idea Donald Trump winning the presidency could cause Donald Trump to win the presidency."

Yes it would be ironic, but it's not about to happen. Trump will lose by a substantial margin. Who knows if Trump will even get the nomination.

http://www.redstate.com/absentee/2016/07/11/war-dump-trump-leader-claims-votes-free-delegates-others-move-block-vp/

The RNC is facing multiple fronts of mutiny and revolt ahead of the convention from the vocal and growing contingent of delegates who vehemently oppose Donald Trump and who firmly believe they should have the right to vote their conscience. It's war.

"Kendal Unruh is leading the 'Dump Trump' delegate revolt (and making a splash doing it), and this weekend, in an interview with the Daily Wire, Unruh claims that she now has enough votes on the rules committee to unbind the delegates. This comes on the same weekend that we found out that Colorado delegates are moving to block Trump's VP pick and another committee could shut out anti-Trump delegates. Like I said: war."

David Begley said...

Below is from Patterico. I find RBG's comments reprehensible. My take on RBG, "Good thing Scalia died as otherwise Obama would have really lost a big case."


"One of the 4-4 ties, Friedrichs v. California Teachers Association, averted what would have been a severe blow to public unions had Justice Scalia participated. “This court couldn’t have done better than it did,” Justice Ginsburg said of the deadlock. When the case was argued in January, the majority seemed prepared to overrule a 1977 precedent that allowed public unions to charge nonmembers fees to pay for collective bargaining.

A second deadlock, in United States v. Texas, left in place a nationwide injunction blocking Mr. Obama’s plan to spare more than four million unauthorized immigrants from deportation and allow them to work. That was unfortunate, Justice Ginsburg said, but it could have been worse.

“Think what would have happened had Justice Scalia remained with us,” she said. Instead of a single sentence announcing the tie, she suggested, a five-justice majority would have issued a precedent-setting decision dealing a lasting setback to Mr. Obama and the immigrants he had tried to protect.

“Think what would have happened” if my friend had remained alive.

Things could have been worse.

If my friend had remained alive.

Beware befriending a radical leftist. Yes, they might like you. But if it would further their political agenda, they might like you better dead."

Michael K said...

Fortunately, Hillary has an army of drones like "Unknown" who probably could not ind her way home without a DNC minder.

William said...

Obama came out of nowhere and was elected President with far less real world experience than Trump. His election was definitely a leap into the unknown. Imagine if some Suprene Court Judge had made a similar remark about Obama.......I also remember hearing that since Obama had managed a successful campaign for the nomination that this showed that he knew how to be a successful manager. I have never heard anyone advance that argument in Trump's favor.......A considerable portion of the American population favors Trump's election. Is their judgment so damaged and depraved that it can not only be ignored but openly despised.

Dave in Tucson said...

> I would have left her alone to have a little freedom of speech about politics,

Wouldn't it be lovely to live in a world we could afford to do that? But just think how the entire mainstream media would react if a conservative justice had said similar things about HRC? There would be demands for a resignation, signature drives for a recall, and an unending barrage of negative stories everywhere.

Honestly, the suggestion that she needs to recuse herself from any Trump related cases is mild in the extreme to the kind of all-out hissy fit that would take place ifthe left-right roles were reversed.

Michael Fitzgerald said...

"it's helpful to the people to get some information on how political the Justices might be."

During the vetting and selection process, yes. But it's a little late now for the people to learn that RBG is just a stuck-on-stupid democrat party progressive ideologue.

Lydia said...

She didn't recuse herself in same-sex marriage cases, even though she expressed her views quite openly about favoring it. She'd even officiated at a same-sex wedding.

Gahrie said...

What Ginsburg most clearly expressed is that she wants Scalia's seat filled with someone who's on her side.

She's not supposed to have a side.

HoodlumDoodlum said...

Thank you for the answer, Prof. Althouse.

Curious George said...

"I don't think she really said that much. She just said "I can't imagine...." You have to flesh it out with ideas of your own for it to mean anything."

Bullshit. This doesn't pass the laugh test.

ndspinelli said...

Trump should replace her w/ a robot.

mockturtle said...

But it's a little late now for the people to learn that RBG is just a stuck-on-stupid democrat party progressive ideologue.

Or, for short, a communist.

Saint Croix said...

I don't think she really said that much.

In 2009, Ginsburg said this:

“Frankly I had thought at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of."

The liberal love of eugenics and population control was on display once again!

The right-wing blogosphere blew up at her comment.

Bazelon, the journalist, blamed herself for Ginsburg's stupidity.

Anyway, the media usually protects its liberals from their own stupidity, which of course creates more and more liberal stupidity in a vicious cycle. Perhaps the Washington Post, reflecting on how easy and soft they have been on Mr. Obama for 7 and a half years, has apparently decided to give Ruthie a hard time for spouting off like an idiot. Who do you think you are, some nobody on a blog?! You're a Supreme Court Justice! You're supposed to be dignified and upholding the law for all people! Not some liberal hack.

Also I think liberals are trying to shove Ginsburg out the door before she hits her 90's. Unless she's already in her 90's.

Unknown said...

Of course, it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even 'animus' toward such conduct," Scalia wrote in his dissent.

While speaking at Princeton in 2012, Scalia was asked by a student why he would compare laws banning homosexuality with laws against murder.

"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,'" Scalia answered. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

"I'm surprised you aren't persuaded," Scalia told the student, who identifies as gay.

Also in 2012, Scalia said homosexuality should be illegal because it had been a crime for so long. "Homosexual sodomy? Come on. For 200 years, it was criminal in every state," he said.


Should Scalia have recused himself from Obergefell vs. Hodges?

Jonathan Graehl said...

sean, consider Irish doublespeak. not offending colleagues is hardly a crime.

cubanbob said...

First Trump has to win. The let's see who he nominates to the court.

cyrus83 said...

What is it with these stupid tropes about moving to another country? The point of having a Constitution is that a change in political control isn't supposed to lead to any deprivation of rights.

What I'd want to know from Ginsburg is what rights she thinks would be under threat from a Trump presidency or what kind of damage he could do to the country. Because honestly, if he can do that kind of damage, perhaps that's reflective of poor rulings from her and her colleagues over the last century that have given the presidency that kind of power.

YoungHegelian said...

Okay, as mean as it is, let me put this out there for public consumption.

Me sainted mum is now 6 weeks away from 89. In her 80s, her always outspoken demeanor became even more so, & she delighted in "telling people off". Not a charming social habit.

My brother & I spoke with her shrink about this & he said that what governs social inhibition is the part of the brain called the pre-frontal cortext. The pre-frontal cortext is often impaired in age-related vascular dementia. A high-functioning individual like RBG, however, can soldier on for a long time even in the face of advancing senility because they have so much cognitive function to begin with.

I know her clerks would never, ever, breath a word of this, but my guess is that they're seeing other declines, too. A RBG in her prime would have never done this, and, as a matter of the historical record, didn't until rather recently.

Johnny Sokko said...

Nasty old hag

Terry said...

On the Left, they use the word "outspoken" to describe their bigots.

Unknown said...

Scalia was outspoken.

Leora said...

What struck me was that she quoted her husband who died in 2010. He used to write clearly and with wit about tax law which is very rare. I was sad when I purchased the update of a book he had co-authored and the forward mentioned that he had passed.

I'd guess it was a running joke with her husband for many years about moving to New Zealand, but if it wasn't I would be concerned.

Mary Beth said...

If she were really serious about being concerned over the makeup of the Court in the next few years, she would have retired during the first half of Obama's second term. That way she would have done as much as she was able to make sure she was followed by a liberal. A younger liberal.

Saint Croix said...

Also in 2012, Scalia said homosexuality should be illegal because it had been a crime for so long.

He did not say that.

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Terry said...

Miriam cut-n-pasted from the wrong template.

coupe said...

They may all recuse themselves. Wouldn't that be a blast!

tim maguire said...

My initial reaction is, of course she should resign. This interview reveals a mind utterly unfit for the role of Supreme Court justice. But after a moment's reflection, I realize, who cares? In political cases, the liberals can always be relied on to take the liberal position. An absolute refusal to think for one's self is fundamental to what it means to be liberal (if I know someone is liberal, I never have to ask their position on any political or social issue--it is enough to know they are liberal to know their position).

No, if something like this came from a conservative, that would be a problem. But from a liberal, it has no weight or meaning.

Brando said...

I'm not surprised that Ginsburg thinks that way--I imagine the other leftists on the Court do too--but there's very good reason why Supreme Court justices should not make public comments on a lot of issues that they could end up ruling over. Justices have their political biases, but they are supposed to keep those aside when doing their job. Frankly now would be as good a time as any for her to step down--maybe this slip-up is a sign she's getting sloppy.

tim maguire said...

I don't think she really said that much. She just said "I can't imagine...." You have to flesh it out with ideas of your own for it to mean anything.

Prof., "I can't imagine" isn't a synonym for "I don't know." It's a euphemism for, "it's too horrible to contemplate." You're neutral interpretation is out of step with common language usage.

damikesc said...

I would have left her alone to have a little freedom of speech about politics, and it's helpful to the people to get some information on how political the Justices might be. What Ginsburg most clearly expressed is that she wants Scalia's seat filled with someone who's on her side.

Then don't you think it's time to end lifetime appointment and put them up for a vote? Since they are nothing but political...except the "conservatives" don't vote in utterly predictable ways in every major case?

Brando said...

"What Ginsburg most clearly expressed is that she wants Scalia's seat filled with someone who's on her side."

I don't think justices should even go so far as to say something like that. They're supposed to be impartial, independent jurists interpreting the law, not political hacks looking to support or undermine policies based on their policy preferences. If they're just supposed to be a "higher legislature" then maybe they should all be elected to terms.

Unknown said...

A lobstery in Maine has developed a machine that shells a lobster raw, using enormous pressure. I wonder how large a size limit it has.

damikesc said...

I don't think justices should even go so far as to say something like that. They're supposed to be impartial, independent jurists interpreting the law, not political hacks looking to support or undermine policies based on their policy preferences. If they're just supposed to be a "higher legislature" then maybe they should all be elected to terms.

Remember when the Left said that the decision in Bush v Gore would make Americans question the impartiality and legitimacy of the Court?

They don't seem to be so concerned these days.

I'm wondering how long with the SCOTUS go along until it generates a demand for a Constitutional Convention. True, you never know what that might lead to --- but given their history of ignoring the Constitution and blatantly political decisions recently, I wonder how much worse it could possibly be.

shiloh said...

After FL 2000 the SC will never/ever interfere w/a presidential election again = if there ever is a FL situation again, which there won't, they could still be counting hanging/pregnant chads = Althouse is disqualified from all further rational thought/discusssion re: any topic.

Plus the fact she thinks this election will be close er is hoping it will be close.

Keep hope alive!

>
>
>


btw, Scalia w/his nauseating sarcasm displayed contempt for all things/causes associated w/liberals ad nauseam.

Indeed re: the hopes and aspirations of Althouse cons and their continuing journey to live in the past Reagan and Scalia have one thing in common ...


They're both dead!

damikesc said...

When did Scalia blast the possible election of a Dem or state his spouse would emigrate if somebody was elected?

Saint Croix said...

okay we got way too many unknowns

aggravating

you can't have a dialog with an unknown unknown

how about a nickname?

Rusty said...

Unknown said...
A lobstery in Maine has developed a machine that shells a lobster raw, using enormous pressure. I wonder how large a size limit it has.

A live or a dead lobster?
Details.

Brando said...

"Remember when the Left said that the decision in Bush v Gore would make Americans question the impartiality and legitimacy of the Court?"

I'm still trying to keep up with whether unelected judges should be able to overturn the will of the people (which was terrible, as in Citizens United!) or if they are the last defense for human rights (which was great, in Roe v. Wade!).

As someone noted above, Ginsburg proved that her own sense of self-importance outweighed her partisan hackery, as she did not resign in 2009-10 when she had the best shot at getting a young leftist to replace her. She may get a second shot with a Clinton presidency if the Dems take back the Senate, but that's a bit of a risk she's running.

Brando said...

"A lobstery in Maine has developed a machine that shells a lobster raw, using enormous pressure. I wonder how large a size limit it has."

Lobsters aren't so hard to do by hand--get one that'll do that for a crab and we're in business.

Larry J said...

RBG is a sleazy person. I recall during her Senate confirmation hearings one southern Republican asking her if a business had no minority employees, would that be a clear indication of discrimination. She said yes. He then noted that her firm had no minority employees. She looked like she'd been slapped when caught not living up to the standards she imposed on others. He then said that he wouldn't oppose her nomination out of deference to the president. I don't see Democrats giving such deference, so why should Republicans?

Bushman of the Kohlrabi said...

My first thought is that old age is taking its toll. Mental capabilities can decline substantially in your 80s. She could also be on medication that impairs her judgement and behavior. With people living much longer on average, we really need to rethink the idea of these life time appointments.

WisRich said...

" and it's helpful to the people to get some information on how political the Justices might be. What Ginsburg most clearly expressed is that she wants Scalia's seat filled with someone who's on her side."

And there it is..it's not about the Constitution any more, it's about moving their agenda.

Brando said...

"I recall during her Senate confirmation hearings one southern Republican asking her if a business had no minority employees, would that be a clear indication of discrimination. She said yes. He then noted that her firm had no minority employees. She looked like she'd been slapped when caught not living up to the standards she imposed on others."

Do you have a link to that? Not that I can't believe she'd say something so dumb, but I can't believe she'd walk right into it knowing her own law firm had no minority employees. I figure she'd have hedged strategically.

Republicans have shown a lot of deference to Democratic nominations. Even Kagan and Sotomayor got GOP votes in the Senate, more I think than Roberts or Alito got Democratic votes. It seems now though all pretense of bipartisanship is a distant memory, and it's pure war.

Peter said...

Trump's strength is that his enemies often act so badly that they become (unintentionally) some of his biggest political assets.

Maybe it's that awful orange hair; perhaps he hasn't yet realized that people aren't still watching black-and-white TV? Nonetheless, I'd prefer to look at that orange hair for four years than to look at (and hear) ... the alternative.

dda6ga dda6ga said...

all she had to do was keep her mouth shut for a few months...

but, no, suffering from the political "I am somebody" syndrome she goes babbling on.

Unknown said...

After seeing that the court now is openly political, it is probably time to instill term limits in the court. In fact term limits might help alleviate the overt partisanship that the democrat court jurists show.

Big Mike said...

Ginsberg has badly outlived her time.

damikesc said...

After seeing that the court now is openly political, it is probably time to instill term limits in the court. In fact term limits might help alleviate the overt partisanship that the democrat court jurists show.

It'd make it worse, but give them less time to be trouble.

Larry J said...

WisRich said...
" and it's helpful to the people to get some information on how political the Justices might be. What Ginsburg most clearly expressed is that she wants Scalia's seat filled with someone who's on her side."

And there it is..it's not about the Constitution any more, it's about moving their agenda.


For the liberal justices, it never was about the Constitution. You know in advance how they'll vote on almost any case. It's as predictable as the sunrise. Keeping Hillary from being able to fill the current and future supreme court vacancies is reason enough to vote for Trump despite all of my reservations about him.

campy said...

She may get a second shot with a Clinton presidency if the Dems take back the Senate, but that's a bit of a risk she's running.

There will never be another republican president so there is no risk of a non-leftist justice.