One of the many things that distress me about politics in America today is the extent to which erstwhile intelligent people spew out viral talking points as informed thought.
This herd-like mentality was on full display yesterday. That’s when commentators across the political spectrum began parroting the same condemnation of Supreme Court Justice Ruth Bader Ginsburg for her comments on the presumptive Republican presidential nominee, Donald J. Trump.
Here is a little of what she said to the New York Times on Sunday:
I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president…
[My late husband would say] it’s time for us to move to New Zealand.
And here is a little of what she said to CNN on Monday.
He is a faker… He really has an ego. … How has he gotten away with not turning over his tax returns?
Frankly, it’s distressing enough that the news media are facilitating the spectacle Trump is making of his presidential campaign – complete with reporting on his vice presidential selection as if it were nothing more than a political version of his reality TV show, The Apprentice.
But the Times, the Pied Piper of political thought, gave Trump far more credibility than he could ever earn, when it published an editorial yesterday under the headline “Donald Trump Is Right About Ruth Bader Ginsburg.” Except that it’s ironically fitting that it premised this editorial on the following misstatement of facts:
Justice Ginsburg’s comments show why their tradition has been to keep silent…
All of which makes it only more baffling that Justice Ginsburg would choose to descend toward his level and call her own commitment to impartiality into question. Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.
“His level,” of course, is the ignorant regard Trump showed for judicial independence and American citizenship a few weeks ago. That’s when he went on a 72-hour rhetorical bender about Gonzalo Curiel, the U.S. District Court judge who is presiding over his ongoing Trump University fraud case.
Trump insisted that American-born Judge Curiel is “a Mexican” who cannot possibly be impartial. This, despite evidence to the contrary and Newt Gingrich, his most popular VP candidate/apprentice, entreating him to hold his tongue.
Ginsburg has hardly descended toward this level — with all due respect to the Times. More to the point, it is hardly surprising that Trump reacted to her comments with egomaniacal and thin-skinned bluster:
Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!
(Twitter@realDonaldTrump, July 13, 2016)
For good measure, Trump (70) added that Ginsburg (83) owed him, the Court, and the country an apology….
What is surprising, however, is that the Times was so wrong about the tradition of Supreme Court. For it would have you believe that Ginsburg betrayed a code of conduct, which keeps justices as beyond proverbial reproach as Caesar’s wife when it comes to partisan politics. Yet nothing betrays this belief quite like years of decision after decision falling along partisan political lines; none more so than their infamous decision in Bush v. Gore 2000.
Hell, even I have had cause to lament the manifest politicization of the Court, which put paid long ago to any pretense of justices being above politics:
Neither this decision, nor its breakdown along partisan lines, should surprise anyone who knows anything about the ‘politics’ (as opposed to the legal reasoning and judicial precedents) that guide this Court’s rulings. For the one thing that distinguishes this Court is that the justices Republican presidents nominated invariably vote on the side of issues that affirms conservative ideology; whereas those Democratic presidents nominated invariably vote on the side that affirms liberal ideology.
(“Supreme Court Rules Voter ID Laws OK,” The iPINIONS Journal, October 18, 2014)
This is why the only tradition that is relevant in this latest politics-versus-courts contretemps is the one that has continually shown that presidential elections have consequences….
Beyond this, nothing undermines the Times’s rebuke of Ginsburg quite like a Supreme Court tradition that, in fact, has seen justices not only speak out about politics, but actually run for political office, including the presidency itself.
John Jay, the first Chief Justice … ran twice for elected office without resigning from the Supreme Court…
The most famous Justice-turned-candidate was Charles Evans Hughes [who] left the Supreme Court in 1916 to challenge Woodrow Wilson for the White House… eventually became Secretary of State [and in 1930] returned to the Court as Chief Justice of the United States.
(National Constitution Center, September 2, 2015)
And they are not the only ones whose extracurricular activities belie this purported tradition of justices keeping silent. Indeed, Justice Clarence Thomas (68) has emulated the late Justice Antonin Scalia by giving judicial speeches laced with so many right-wing talking points, you’d be forgiven for thinking that Trump culls them for his political speeches.
Just years ago, for example, Thomas insinuated that the only reason Barack Obama was elected the first black president of the United States is that:
[He] was approved by the elites and the media, because anybody they didn’t agree with, they would take apart.
(Huffington Post, May 3, 2013)
Mind you, he was commenting not on a presidential candidate, but on a sitting president. Here is how Mother Jones reported — more accurately on his comments than the Times reported on Ginsburg’s — that same day:
It is unusual for sitting Supreme Court Justices to make public criticisms of sitting presidents. ‘Clarence Thomas seems more interested in becoming a Fox commentator than preserving the integrity of the Court, says Adam Winkler, a professor at the University of California School of Law. ‘Justices should not take pot shots at the president. It’s beneath the dignity of the court.
But nobody called on Thomas to resign over his plainly biased comments. Moreover, I suspect it never even occurred to him that his psychological projection (about Obama being an ” Uncle Tom”) obliged him to recuse himself from any case.
Therefore, given this legal history, you’d think putative legal historians – like Professor Jonathan Turley of George Washington Law School – would know better than to claim Ginsburg’s comments are unprecedented.
Yet here is how Jeffrey Toobin, the senior legal analyst for CNN, parroted the Times’s false narrative about justices keeping silent yesterday:
[E]lectoral politics have long been off-limits for sitting judges, including justices. They are expected to refrain from telling us their opinions – in part because they are expected to be above such considerations but also because they rule on cases that have a strong political content. And all presidents have lots of business before the Supreme Court.
In fact, Toobin declared Ginsburg’s comments so egregious that, if there were another contested election or, god forbid, if a Trump administration were a party in any matter before the Court, she would “certainly have to recuse herself.”
Alas, this patently uninformed and misguided narrative has gone viral. The Wall Street Journal even added insult to Trump’s assault yesterday – by urging Ginsburg’s fellow justices to:
Stage an intervention to make way for someone who knows how a judge is supposed to behave.
Never mind that Justice Stephen Breyer (77) probably gave the Journal cover to do so when he offered this disingenuous bon mot to CBS News:
If I had an opinion, I would not express it.
She may regret creating this distracting fuss; not least because it has provided so much enabling fodder for Trump’s dystopian presidential campaign.
But Ginsburg is right about him. Her critics are wrong about her. And, trust me, she will never recuse herself over this contrived nonsense … come what may.
Related commentaries:
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Clarence Thomas speaks…