While few expect their high-profile spat to weigh heavily in the 2016 race, Ginsburg's remarks cast a harsh spotlight on the court's liberal lion, who inspires such admiration that supporters don T-shirts with her image and have dubbed her “Notorious ...and more »
Itâ€™s a strange week when Donald Trump â€“ known for his provocationsÂ and unconventional behavior â€“ lectures a Supreme Court justice on whatâ€™s â€œhighly inappropriate,â€ and many legal expertsÂ say heâ€™sÂ right.Justice Ruth Bader Ginsburgâ€™s unprecedented public criticism of the presumed GOP presidential nominee has left legal experts and her own supporters scratching their heads. No one could recall a similar instance of a justice on the nationâ€™sÂ highest court openly and repeatedlyÂ denouncing a candidate running for its highest office.
Trumpâ€™s campaign is already exploiting Ginsburgâ€™s attack as the latest example of the high courtâ€™s growing politicization. HeÂ called upon her to step down and predictedÂ her attacks would only serve to energize his conservative base.While few expect their high-profile spat to weigh heavily in the 2016 race, Ginsburgâ€™s remarks cast a harsh spotlight on the courtâ€™s liberal lion, who inspires such admiration that supporters don T-shirts with her image and have dubbed herÂ â€œNotorious RBG,â€ a take-off on Christopher Wallaceâ€™sÂ rapÂ moniker,Â TheÂ Notorious B.I.G.
Many legal experts agree Ginsburgâ€™s public comments crossed a long-standing line that has separated the Supreme Court from partisan electoral politics.â€œWhat Justice Ginsburg did in these interviews is facially unethical in my view,â€ said Jonathan Turley, a law professor at George Washington University. â€œIt undermines the core values and integrity of the court.â€Ronald Rotunda, an expert in legal ethics at Chapman University in Orange, said Ginsburg essentially endorsed the presumed Democratic nominee, Hillary Clinton.â€œI found her comments jaw-dropping,â€ he said. â€œShe is politicizing the court and that is not good for the country or the court. We give them life tenure and salary protection so they will be above the political fray.Â But she is jumping right into it.â€
The White House made light of Ginsburgâ€™s comments Wednesday. â€œShe didnâ€™t earn the nickname the 'Notorious RBG' for nothing,â€ White House Press Secretary Josh Earnest told reporters.But even the editorial page of theÂ New York Times and some liberal legal scholarsÂ chastised Ginsburg for her remarks.In three interviews in the last week, Ginsburg said she despaired at the prospect that Trump could be president. â€œI donâ€™t want to think about that possibility,â€ she told the Associated Press. SheÂ joked to the New York Times that she may want to move to New Zealand.â€œHeâ€™s a faker. He has no consistency about him. He says whatever comes into his head at the moment,â€ she told CNN. â€œHe really has an ego...How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.â€Exactly why Ginsburg weighed in on Trump is now the subject of debate among legal scholars and political insiders, but sheâ€™s shownÂ noÂ signs of backing down.Some have suggested Ginsburgâ€™s age â€“ she is 83â€”may play a role. Past justices, including the late Antonin Scalia, became more outspoken as they grew older.See the most-read stories in National News this hour >>â€œHer mind is shot â€“ resign!â€ Trump tweeted Tuesday.OthersÂ pointed to theÂ unusual nature of Trumpâ€™s candidacy.â€œI donâ€™t think she is losing it mentally. Her opinions reveal close and complex legal reasoning,â€ said New York University law professor Stephen Gillers. â€œI think the answer is simple. She is as deeply alarmed as many others over the prospect of a Trump presidency and the consequences to the country and the court. She thinks the voters may be falling under the spell of a charlatan and is willing to accept the criticism for speaking rather than remain silent.â€He noted Ginsburg first made her mark in the law fighting for womenâ€™s rights in the late 1960s, when legal precedents were not on her side. â€œSheâ€™s been a fighter and thatâ€™s what sheâ€™s doing now,â€ he said. â€œThere are some things she is unable to accept.â€Â A few pointedÂ to the phenomenon of â€œcelebrity justicesâ€ who travel the country appearing before ideologically friendly audiences.â€œThis can have a corrupting influence on jurists who areÂ treated like rock stars and receive an outpouring of adoration,â€ said Turley of George Washington.Â Though Ginsburgâ€™s comments were the most blatant in recent memory, she is not the first justice to be accused of taking sides.On election night in 2000 when the votes were being counted,Â JusticeÂ Sandra Day Oâ€™Connor was overheard at a party saying it was â€œterribleâ€ when Democratic nominee AlÂ Gore briefly pulled ahead.Scalia raised eyebrows in 2004 by going duck hunting with then-Vice President Dick Cheney shortly after the court agreed to decide a case challenging Cheneyâ€™s handling of an energy policy task force. AndÂ JusticeÂ Samuel A. Alito Jr.Â was criticized by some for shaking his head and mouthingÂ â€œnot trueâ€ when PresidentÂ ObamaÂ criticized the Citizens United decision during hisÂ 2010Â State of the Union address. Â Within the court, the justices are divided on how they handle their public roles. JusticeÂ Sonia Sotomayor, like Ginsburg, often appears before liberal and progressive legal groups, such as the American Constitution Society. On the right, Justices Clarence Thomas and Alito regularly speak before the conservative Federalist Society, as did Scalia.Â Notably absent from those meetings are Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Elena Kagan. They tend to speak at law schools or other forums that do not have a political or ideological leaning.Caroline Fredrickson, president of ACS, said the flap over Ginsburgâ€™s comments should prompt a â€œserious conversation about a code of conductâ€ for the Supreme Court. While lower courts are bound by a code of conduct and can be reprimanded for violating it, the Supreme Court justices decide for themselves how to conduct themselves.In 2004, 2nd Circuit Judge Guido Calabresi, a former Yale Law School dean, came under investigation and issued an apology for an off-the-cuff comment before a legal group that President George W. Bush â€œcame to powerâ€ through a court decision, adding that Hitler and Mussolini also came to power without winning an election.
But Supreme Court justices are allowed to monitor their own behavior, including deciding when to recuse themselves from a case.Itâ€™s not clear whether Ginsburgâ€™s comment would raise questions about her ability to fairly handle a futureÂ case involving a Trump administration, but many legal experts agree she would come under pressure to recuse herself if there were an election dispute similar to Bush vs. Gore in 2000.
Two years ago, some leading liberals had urged Ginsburg to retire so that Obama could chose her successor while Democrats still held the Senate majority. They recalled an earlier era when aging Justice Thurgood Marshall, a hero of the civil rights movement, hung on into his early 80s, but was forced to retire because of hisÂ health.Â His seat was filled 25 years ago by Thomas, an unwavering conservative.But Ginsburg, then 81, said she was confident she could still do the job well, and she expressed optimism that a Democrat would succeed Obama. However, if Trump were elected, she would turn 84 shortly after his inauguration.Â Legal experts note that much turns for Ginsburg in the upcomingÂ election.Â â€œHer legacy depends on who wins the White House,â€ said UC Irvine law Dean Erwin Chemerinsky, who was among those who had urged her to retire earlier. â€œIf a Democrat wins, there likely will be a liberal majority on the court for years to comeâ€¦.Â If a Republican wins, there likely will be a majority to overrule her views on every issue.â€On Twitter: @DavidGSavageMORE NATIONAL NEWSOnce again, President Obama tries to convince America that it is unitedBernie Sanders offers long-awaited endorsement: Hillary Clinton is 'far and away the best candidate''Pokemon Go': Craze sweeps the nation and is poised to surpass Twitter
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