In the latest of the nonsensical vapors from the Establishment, the New York Times editorial board writes a truly idiotic editorial critical of Justice Ruth Bader Ginsburg:
There is no legal requirement that Supreme Court justices refrain from commenting on a presidential campaign. But Justice Ginsburg’s comments show why their tradition has been to keep silent.
My emphasis. Oh, her comments show this do they? Let’s see the NYT’s version of the vapors:
In this election cycle in particular, the potential of a new president to affect the balance of the court has taken on great importance, with the vacancy left by the death of Justice Antonin Scalia. As Justice Ginsburg pointed out, other justices are nearing an age when retirement would not be surprising. That makes it vital that the court remain outside the presidential process. And just imagine if this were 2000 and the resolution of the election depended on a Supreme Court decision. Could anyone now argue with a straight face that Justice Ginsburg’s only guide would be the law?
My emphasis. This makes no sense. The court is very important in this presidential election so let’s make sure the Justices don’t say anything about the election. Huh? Here’s my favorite part: “Could anyone now argue with a straight face that [any] of the justice’s] only guide” would be the law in any case, much less one deciding the presidential election?
Indeed, what makes this farce of an editorial so pointedly stupid is that 16 years ago a conservative Republican controlled court thrust itself into the presidential election in unprecedented fashion for no rational legal or constitutional basis. Bush v Gore remains the most infamous decision of the past 100 years. The Court should never have involved itself in the presidential election of 2000 and surely should not involve itself in this year’s election as an institution.
The vote will be 4-4 if it does. You know why it will be 4-4? Because there are four Democrats and four Republicans on the Court. I hope that doesn’t shock the NYT editorial board.
But this desire for dishonesty exhibited by the NYT editorial is symptomatic of a larger problem in understanding the Court—it is a political institution. It has acted politically through out its history, and particularly since the conservative Republican branch of the Court gained ascendancy in the last 30 years. The entire 10th and 11th Amendment jurisprudence is pure politics. The striking down of the Voting Rights Act is pure politics. If you weren’t outraged by the Shelby County decision but you are outraged by Justice Ginsburg speaking out against the presidential campaign of a dangerous racist demagogue, then frankly, you have nothing to say that I respect.
The sum of the argument appears to be “it’s just not done.” But that of course is Ginsburg’s point here—yes, we generally indulge in the fiction that the Justices of the Supreme Court have no partisan preferences for appearance’s sake (except of course when the Supreme Court choose to hand the Presidency to the Republican Party in a 5-4 vote in Bush v Gore), but Trump is different.
The question for all these vapors sufferers is do they disagree with Ginsburg’s assessment that Trump is indeed different—beyond the pale different? And if they do agree with Ginsburg that Trump is different, why is it wrong that Ginsburg is signalling this fact? The failure to grapple with that question demonstrates the emptiness of the objections.
In one of the most vacuous of these objections, Stephen Gillers wrote:
We want the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated. It’s not that judges don’t disagree among themselves. But disagreements must be over legal principles, not a ruling’s effect on a political candidate or party.
At his 2005 confirmation hearing, Chief Justice Roberts said: “Judges are like umpires. Umpires don’t make the rules, they apply them.” It was, he said, a judge’s “job to call balls and strikes and not to pitch or bat.” Although we can debate whether the justices have always been scrupulous about honoring this ideal, it is the vision to which we aspire and one we want the public to trust. Sadly, Justice Ginsburg's remarks will encourage public cynicism instead.
My emphasis. This is unadulterated nonsense. We want the public to believe falsehoods? Why? Moreover why would we want judicial rulings to be unaffected by political considerations, and if we do, why do we grant the president the power to appoint Supreme Court justices and why do we give the Senate the power to confirm such appointments? Strange way to keep politics out of it. I mean, Merrick Garland must be stunned to hear there’s no politics involved in the Supreme Court.
Gillers also pretends Ginsburg has issued a ruling that might be construed as based on her anti-Trump views. Which ruling would that be, Professor? Ginsburg is not selecting the president, unlike the Republican 5 who selected George W Bush. What in the hell is he talking about?
Finally Gillers citing Roberts’ much ridiculed “balls and strikes” nonsense as an “ideal” leaves me speechless. There was no more dishonest statement by a judge seeking confirmation than Roberts’ ball and strikes malarkey other than Thomas’s “I never thought about Roe” lies.
But maybe that’s the point—what these objectors with the vapors are insisting on is dishonesty from the Justices.
I guess their argument is we needs lies from the court so that we will believe in it.
As principles to defend, that seems a poor one to me.
I prefer a clear eyed understanding of what the court is, how it works and who chooses our Justices.
One party has nominated a dangerous racist demagogic fraud. That the traditional media does not have the courage to say this forthrightly is no reason why patriots like Justice Ruth Bader Ginsburg should hesitate to do so.
YMMV.