Ginsburg Rebukes Justices for Intervening in Fla. Vote

Supreme Court Justice Ruth Bader Ginsburg, in a mildly worded criticism of her conservative colleagues, said this week that the justices should have exercised “restraint” in December and stayed out of the Florida vote recount battle.

Instead, the court, on a 5-4 vote, agreed to hear an emergency appeal from George W. Bush and then stopped the hand recount sought by Vice President Al Gore.

“The wisdom of the court’s decision to intervene and the wisdom of its ultimate determination await history’s judgment,” she said.

“One would expect that the first instinct of any judge, faced with such a [politically charged] case, would be restraint,” she added.

Ginsburg had long been scheduled to speak to a law conference in Melbourne, Australia, on Thursday, but she said that she adjusted her talk to focus on the “breathtaking episode” in December and the “decision that made headlines around the world.”

She is the first of the justices to speak publicly on the presidential election case. The court’s public information office released the text of her talk on Friday.

A Democrat who was appointed by President Clinton, Ginsburg dissented from the order to hear the case, as well as from the final ruling.

Throughout her judicial career, she has been a careful and cautious jurist, so much so that her nomination in 1993 was applauded by Senate Republicans.

She began her speech by quoting Chief Justice William H. Rehnquist on the obligations of a good judge. “He or she must strive constantly to do what is legally right, all the more so when the result is not the one Congress, the president or the ‘home crowd’ wants,” Rehnquist said in a 1980 speech.

The legal fight over the Florida recount showed “just how important--and difficult--it is for judges to do what is legally right, no matter what ‘the home crowd’ wants,” Ginsburg said.

All five justices who voted to intervene in the Florida case are conservative Republicans who usually insist that federal judges defer to the states.

In the past, Ginsburg said, the Supreme Court has intervened in extraordinary national disputes, and did so in a way that won history’s approval.

In 1952, President Truman seized the steel mills of the nation to thwart a strike. He relied on his powers as commander in chief during the Korean War.

But the Supreme Court stepped in and overruled him. All six justices in the majority were Democratic appointees. Four were named by Franklin D. Roosevelt and two by Truman himself, Ginsburg noted.

Faced with the Watergate scandal, the high court unanimously ruled in 1974 that President Nixon must turn over his subpoenaed tapes. Shortly after Nixon complied, he was forced to resign. Ginsburg noted that Nixon’s own appointees, including then-Chief Justice Warren E. Burger, ruled against the president.

Ginsburg did not note a similar example from her years on the court. In a unanimous opinion in the case of Bill Clinton vs. Paula Corbin Jones, the justices ruled that the president could be sued while in office. In that case, Ginsburg and Justice Stephen G. Breyer, a fellow Clinton appointee, voted with the majority against the president who had named them to the court.

Ginsburg did not pronounce her own verdict on the court’s ruling in Bush vs. Gore, except to repeat some of the dissenting comments.

The good reputation of the judiciary will survive, she predicted, “despite the December storm over the U.S. Supreme Court.”

“Whatever final judgment awaits Bush vs. Gore in the annals of history, I am certain that the good work and good faith of the U.S. federal judiciary as a whole will continue to sustain public confidence at a level never beyond repair.”