In 2000, a contested presidential election wound up in the U.S. Supreme Court in a case with the historic name of Bush vs. Gore. Suppose history repeated itself and at the end of this year the justices were hearing arguments in Trump vs. Clinton. Would Justice Ruth Bader Ginsburg have to recuse herself?
It’s not hard to imagine lawyers for Donald Trump making that claim. In an interview with Adam Liptak of the New York Times this week, the 83-year-old Ginsburg had this to say about the presumptive Republican nominee:
“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.”
That wasn’t the only juicy quote from the justice known to her admirers as Notorious R.B.G. (though Garrulous R.B.G. might be a better nom de rap).
Ginsburg also told Liptak that the Senate should promptly consider President Obama’s nomination of Judge Merrick Garland to replace her friend Antonin Scalia on the court. “That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.”
But that’s not all. She said that Garland “is about as well qualified as any nominee to this court. Super bright and very nice, very easy to deal with. And super prepared. He would be a great colleague.”
To be fair, some — including the Los Angeles Times editorial page — have argued that it would be legitimate for Chief Justice John G. Roberts Jr. to call on the Senate to act on the Garland nomination.
And there is a precedent for a Supreme Court justice commenting on the qualifications of a nominee to the court. In 1987, Justice John Paul Stevens praised Judge Robert Bork, President Reagan’s nominee, saying: “I personally regard him as a very well-qualified candidate and one who will be a very welcome addition to the court.” (The Senate refused to confirm Bork.)
Still, Ginsburg isn’t the chief justice, who could plausibly advocate for Senate action in his role as the leader of the federal judiciary. Also, Roberts is a Republican appointee; Ginsburg was appointed Democrat Bill Clinton. Her endorsement of Garland is thus likely to come off as a partisan gesture.
But it’s nothing compared to her dumping on Trump. If Roberts or Justice Clarence Thomas gave an interview in which they expressed horror at the possibility of a President Hillary Clinton, they’d be savaged by Democrats for partisanship unbecoming a judge. Ginsburg shouldn’t get a free pass.
Arthur Hellman of the University of Pittsburgh Law School refused to give her one. In an interview with the Washington Post, Hellman said: "I find it baffling actually that she says these things. She must know that she shouldn’t be. However tempted she might be, she shouldn’t be doing it.”
You can’t fault Liptak for scoring this interview. Getting a Supreme Court justice on the record is a rare (and in this case revealing) coup. Whether Ginsburg was judicious in granting the request is another matter. Her careless comments contribute to the impression that Supreme Court justices are just “politicians in robes.”
As Trump would say: Sad!