The Volokh Conspiracy
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Justice Ginsburg Opines on Biased Senators and President Trump's Knowledge About the Constitution
RBG continues to exercise terrible discretion, even after apologizing to President Trump
Justice Ginsburg sat for an interview with BBC host, Razia Iqbal. The full recording of the event has not yet been released, but the BBC has released a two-minute clip.
Here is my (rough) transcript of one exchange:
[I think a question was asked about whether a member of the Senate, sitting in an impeachment trial, should be impartial]
Ginsburg: The House indicts, and the Senate tries. Should a trier be impartial? Of course, that's the job of an impartial judge.
Iqbal: You will be very aware that there are Senators who are already saying before the impeachment gets to the Senate or the trial in the Senate. They've already made their minds up. That's problematic.
Ginsburg: Well if a judge said that, a judge would be disqualified from sitting on the case.
[Laughter and applause]
Iqbal: But it's about the level of accountability. So if a Senator says I've already made my mind up and the trial doesn't even exist at the moment, there is no accountability is there?
Ginsburg: My old Chief, Chief Justice Rehnquist put it very well. He said, "The day a judge stops being impartial, and starts to do things to please the home crowd, whatever your home crowd is, that's the day that judge should step down from office."
At that point, the video cuts to another portion of the interview.
Iqbal: What's your reading of the Constitution in the context of the President of the United States saying that the Supreme Court of the United States should stop this impeachment. Is there a reading that you can present–
Ginsburg: Well the President is not a lawyer, he's not law trained.
[Laughter and applause]
The video cuts off. WWD offered this account of of Ginsburg's remarks:
"The president is not a lawyer," Ginsburg replied. "He's not law-trained. But the truth is, the judiciary is a reactive institution. We don't have a program, we don't have an agenda. We react to what's out there."
Justice Ginsburg exercised terrible judgment in this interview. First, there is no reason for Ginsburg to inject herself into debates about whether Senators should be disqualified. Indeed, her analogy between Senators-as-jurors and judges is a strained one. I agree with co-blogger Keith Whittington: disqualification is not required, even for Senators who have made up their mind. But here, Ginsburg, with the gravitas of a Supreme Court justice, weighed in on a divisive constitutional question. I would not be surprised if some members of the Senate quoted RBG's remarks to criticize their colleagues neutrality.
The second quoted remark (for which I do not have full context) is even more troubling. The interviewer asked about Trump's tweets that the Supreme Court could get involved in impeachment. How should Ginsburg have responded? "I cannot comment on a matter that could come before the Court." Instead, she criticized the President's knowledge about the Constitution. To say "the President is not a lawyer, he's not law trained" is a gentle way of calling him an idiot–he has no idea what he's talking about. I would never criticize something a non-lawyer says, because they are not trained in law. Lawyers, and especially judges, could learn a lot from what other people think about the Constitution.
Putting aside the propriety of her remarks, Ginsburg's snide remark is wrong. Walter Nixon v. U.S. left open at least three circumstances in which courts could review an impeachment. Moreover, Alan Dershowitz wrote in his book that there are additional circumstances in which an impeachment could be reviewed in Court. Agree or disagree with these positions, Ginsburg was rude and arrogant to suggest that Trump's views should be dismissed due to his lack of legal training.
Moreover, Ginsburg's comments are even worse, in light of the President's unique station in our Republic. The President is charged with taking an oath to that Constitution. To say the President doesn't even understand the document he is charged with faithfully executing the Constitution, is to say the President cannot comply with that oath. (I think a lot of judicial decisions we've seen are quietly motivated by what Ginsburg publicly stated.)
It gets worse. The Supreme Court will likely have to consider cases that turn on President's knowledge of the Constitution, and whether he is in fact faithfully executing the laws, or acting for "corrupt" purposes. Now, the Notorious RBG has told us what she really thinks about the President.
Ginsburg, alas, has a record of making such inappropriate comments about President Trump. In 2016, she told the New York Times:
"I can't imagine what this place would be — I can't imagine what the country would be — with Donald Trump as our president," she said. "For the country, it could be four years. For the court, it could be — I don't even want to contemplate that."
And she told CNN:
"He is a faker," she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. "He has no consistency about him. He says whatever comes into his head at the moment. He 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."
The emphasized portion directly bears on the current litigation over Trump's tax returns.
Ginsburg issued a carefully word-smithed non-apology.
"On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."
She was not circumspect. Rather, Justice Ginsburg reinforced the appearance of partiality with respect to President Trump. I'm not sure these a remarks warrants recusal in cases brought against President Trump in his official capacity; that is, where the government (not Donald Trump) is the actual defendant, and it is sued in his name. In such appeals, Trump is merely a stand-in for the sovereign; his name only appears as a placeholder. Any relief would run against the United States, and if Trump was no longer President for whatever reason, the case would continue with Mike Pence as the defendant. But in a case where Trump is sued in his individual capacity, or where Trump's personal actions could violate the Constitution, Ginsburg's partiality is now suspect. Ginsburg's own words should appear front and center in a disqualification motion filed by Trump's attorneys. She only has herself to blame.
Update: Steve Lubet replies at the Faculty Lounge. I had originally made an inappropriate comment about Ginsburg's facial expression. Steve called me to task for it, and I agree. I've removed the comment.