Ruth Bader Ginsburg and the illusion of an impartial judiciary

[B-Fly]

So we all know that judges at every level have deeply held beliefs that extend beyond mere judicial ideology to partisan political issues, and we all know that while most of them probably do their best to be fair in their jurisprudence, there are cases where the same set of beliefs that inform their political views will impact their judicial decision making. What then, is the value of expecting seated jurists to remain neutral in political campaigns?

Personally, although I certainly agree with all of Justice Ginsburg's comments about Trump, I still cringe about her publicly and repeatedly voicing them. I think it harms the Supreme Court as a public institution and it harms her legacy, which in my mind was truly estimable. I worry that it opens the door for more justices and judges at every level of the judiciary to ignore the ethics standards against partisan politics and assume they can get away with it.

I'm sure Ginsburg knew all of the ethical landmines she'd be creating and determined that she needed to do this anyway. And I'm sure this signals that she's probably planning to step down very soon regardless of who wins (such that she wouldn't even face the issue of possibly needing to recuse herself from cases involving a Trump Administration), but I'm still bothered by it.

[Pogues]

Perhaps she's getting an early jump on checks-and-balances during the potential Trump presidency?

[senorsheep]

It is inappropriate, and it's heartening to see some major voices on the left step up and call her on it, rather than resort to the usual "but the other side did whatever" partisan hackery.

[nots]

I was very surprised to see her comment.....very unusual for SC justice to create the appearance of bias. I agree with Sheep as well---kudos to those on the left for calling her out. I believe those on the right would find a loophole to exonerate if the situations were reversed.

[Igor]

My 87 year old dad says crap all the time that I would have never believed he would say 20 years ago. Advanced age and common sense filters are not all that compatible.

[Lucky]

One of the many things which irk me are people making judgments about things when they are unaware or choose to ignore historical context. I have heard people characterize the RBG situation as "unusual", "unprecedented", "scandalous", and a number of other adjectives, many of which were used with hysterical emphasis. While it was undoubtedly the first time we have had a 100-year old lady Justice criticize a flaming orange crypto-fascist politician, it is certainly not the first time that the set of SCOTUS and the set of Washington politics have intersected.

From the early days of the Republic, Justices of the Supreme Court have socialized with Presidents, Senators, Cabinet Members, Ambassadors, and perhaps even members of the House. And when I say "socialized", I don't mean afternoon tea. They drank, gambled, played cards, and generally did things that men do. They weren't a bunch of wimps like our elected and appointed officials are today. But they knew that fun was fun and work was work. They could separate the two because they had good brains; and it went on that way for years and years and years.

More recent times have provided examples as well. Alito would give flaming, nasty speeches to conservative audiences about Obama's policies...not directly critical of Obama personally, just about everything he stood for. Antonin Scalia was butthole buddies with Dick Cheney, and the two hunted together, which I think was a rite by which Scalia's people showed their bravery. Notwithstanding their buddery, when a case came before the Court involving an organization of which Cheney was the head, Scalia refused to recuse.

So, I think you can draw a couple of things from this...1) there is nothing new about the Court and politics mixing it up, and 2) if the past is any indication, no inference can be drawn as to what impact this incident might have upon RBG's future participation in SCOTUS cases.

[fuhrdog]

My 87 year old dad says crap all the time that I would have never believed he would say 20 years ago. Advanced age and common sense filters are not all that compatible.

I'm nowhere near 87 but regarding not having common sense filters, guess I'm just ahead of the curve

[Hornsby]

One of the many things which irk me are people making judgments about things when they are unaware or choose to ignore historical context. I have heard people characterize the RBG situation as "unusual", "unprecedented", "scandalous", and a number of other adjectives, many of which were used with hysterical emphasis. While it was undoubtedly the first time we have had a 100-year old lady Justice criticize a flaming orange crypto-fascist politician, it is certainly not the first time that the set of SCOTUS and the set of Washington politics have intersected.

From the early days of the Republic, Justices of the Supreme Court have socialized with Presidents, Senators, Cabinet Members, Ambassadors, and perhaps even members of the House. And when I say "socialized", I don't mean afternoon tea. They drank, gambled, played cards, and generally did things that men do. They weren't a bunch of wimps like our elected and appointed officials are today. But they knew that fun was fun and work was work. They could separate the two because they had good brains; and it went on that way for years and years and years.

More recent times have provided examples as well. Alito would give flaming, nasty speeches to conservative audiences about Obama's policies...not directly critical of Obama personally, just about everything he stood for. Antonin Scalia was butthole buddies with Dick Cheney, and the two hunted together, which I think was a rite by which Scalia's people showed their bravery. Notwithstanding their buddery, when a case came before the Court involving an organization of which Cheney was the head, Scalia refused to recuse.

So, I think you can draw a couple of things from this...1) there is nothing new about the Court and politics mixing it up, and 2) if the past is any indication, no inference can be drawn as to what impact this incident might have upon RBG's future participation in SCOTUS cases.

Pretty much sums up my feelings on the subject, much ado about nothing. And lets not forget that Scalia's best friend on the court, and maybe in real life as well, was Ruth Bader Ginsburg. Perhaps she's just picking up the mantle that Scalia laid down.

[Judge Jude]

hi, B-Fly!

[B-Fly]

hi, B-Fly!

Hi, Judge!

[B-Fly]

Guys, I understand the historical context you're bringing, and I was clear in the opening post to note that judicial impartiality is largely illusory. On the flip side, I certainly agree with Lucky that a good jurist can compartmentalize and adjudicate objectively even when he/she has personal feelings or personal connections that would favor one side over another. That said, I still think that Justice Ginsburg's decision to directly, publicly and repeatedly express her personal and political distaste for the presumptive nominee of the Republican Party (as distasteful as he is) is a more obvious breach of the written Code of Conduct for federal judges than the other examples you have cited. The Code of Conduct says that judges should not "make speeches for a political candidate, or publicly endorse or oppose a candidate for public office” or “engage in any other political activity.”

So even if we acknowledge that many justices or judges have blurred the lines around impartiality or the appearance of impartiality, this particular breach is so un-blurry, if you will, that I think it ultimately helps Trump, which of course hurts Clinton and ultimately tarnishes Ginsburg and the Court. I love Justice Ginsburg, but I think this was a bad decision on her part.

[B-Fly]

"On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them," Ginsburg said in a statement. "Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."

http://www.cnn.com/2016/07/14/politics/ruth-bader-ginsburg-i-regret-making-donald-trump-remarks/index.html

[chancellor]

Welcome back, Bestriding Colossus!

Unfortunately for The Notorious RBG, that horse has already left the barn. She might want to read Stephen Breyer's recent response to such leading questions and imitate it in the future.

[Lucky]

Guys, I understand the historical context you're bringing, and I was clear in the opening post to note that judicial impartiality is largely illusory. On the flip side, I certainly agree with Lucky that a good jurist can compartmentalize and adjudicate objectively even when he/she has personal feelings or personal connections that would favor one side over another. That said, I still think that Justice Ginsburg's decision to directly, publicly and repeatedly express her personal and political distaste for the presumptive nominee of the Republican Party (as distasteful as he is) is a more obvious breach of the written Code of Conduct for federal judges than the other examples you have cited. The Code of Conduct says that judges should not "make speeches for a political candidate, or publicly endorse or oppose a candidate for public office” or “engage in any other political activity.”

So even if we acknowledge that many justices or judges have blurred the lines around impartiality or the appearance of impartiality, this particular breach is so un-blurry, if you will, that I think it ultimately helps Trump, which of course hurts Clinton and ultimately tarnishes Ginsburg and the Court. I love Justice Ginsburg, but I think this was a bad decision on her part.

I agree with everything you have said, but simply as a matter of clarification...while the spirit of the Code of Conduct may guide SCOTUS, I do not believe it is, by its own provisions, applicable to the members of the Supreme Court of the United States, but only to the lower federal courts.

[B-Fly]

Welcome back, Bestriding Colossus!

Unfortunately for The Notorious RBG, that horse has already left the barn. She might want to read Stephen Breyer's recent response to such leading questions and imitate it in the future.

Ultimately, I think it came down to the fact that she figures she's got only a few years to live and even fewer f*cks to give. Not remotely a sign of diminished mental capacity, as Trump insinuated, though. But I'm glad she realized her statements were probably helping Trump and hurting Clinton and walked them back. I doubt she'll take any further bait from Trump or his allies at this point.