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.

[Applause]

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."

[Applause]

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.

Comments

[Longtobefree]

So she will be recusing herself from all cases involving Trump and/or the executive branch?
And she thinks all democrat senators should recuse?
Or is this evidence enough to impeach HER for senility?

[Black Richard]

Exactly.

It's getting to be a circus out there.

As much as I dislike Trump, he is doing a service of sorts by unintentionally(?) unmasking the bias of many in government and media.

[Sarcastr0]

(I think a lot of judicial decisions we've seen are quietly motivated by what Ginsburg publicly stated.)

How dare Ginsberg speak so improvidently, as you indict judges who rule against Trump with unprofessional levels of bias.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Are you going to sing that same song when RBG doesn't recuse herself for any cases involving Trump and/or his staff?

[NToJ]

I agree with Professor Blackman that Justice Ginsburg need not recuse herself in "any cases involving Trump and/or his staff". That's just silly.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Then you believe she is impartial in spite of her partiality.

[bernard11]

None of them are impartial.

[Sarcastr0]

Yeah, that's a normal thing. Professionals can be professional despite their private views.

Blackman doesn't think that's true of judges who rule against Trump.
But he demands the appearance of it from Ginsberg, and that she never passes judgement on those who are not before the Court. Which is specific offense considering things like Gorsuch appearing on Fox and Friends to promote his book.

[Bob from Ohio]

Breyer appeared on Colbert to promote his book.

Sotomayor appeared on CNN to promote hers.

[Sarcastr0]

Yeah, those two are like Fox and Friends.

Regardless, you make my point that his unhappiness at Ginsberg appears to be special pleading.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Maybe the notorious RBG has added incompetence to her notoriety. Anyone who claims judges are impartial is a damned fool; anyone who thinks Senators trying an impeachment should be, or even could be, impartial, is an even bigger damned fool.

[NToJ]

What a pathetic country you must think this is.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I gather you approve of RBG and disapprove of everything Trump.

What a pathetic country you must think this is to need so much social engineering. Me, I think it's had far too much.

[NToJ]

You gather wrong. I said: "I don’t think Supreme Court Justices should talk about this stuff either..." Do I need to provide a list of all the opinions I think RBG was wrong about? It would be long.

What's up with "social engineering"? Care to explain?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How can you claim both that RBG should not have spoken out, and that she is impartial? The only conclusion to draw is that you *wish* she had kept her mouth shut and left her partiality in doubt.

[NToJ]

"How can you claim both that RBG should not have spoken out, and that she is impartial?"

Because I agree with Professor Blackman that her speaking out and being impartial are not mutually exclusive. You better hope so, too, or else that are a lot of Republican Senators who are going to commit perjury.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Impeachment is a political process, by design and in practice. Perjury by Senators in the Senate trial is meaningless.

Perjury in the House, both prosecution and defense, is entirely possible.

[Sarcastr0]

This seems a highly convenient arbitrary line you've drawn.

[Brett Bellmore]

They're not committing perjury, because they weren't under oath when they said their minds were made up.

And when they take that oath, they can perfectly honestly say they'll do impartial justice, because they think that, based on what they currently know, impartial justice is acquittal.

The Democrats' job is to change their minds about that.

[NToJ]

Well Brett, in Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf's mind what makes one partial is not actually being partial, but "[speaking] out". That is, he seems to think speaking out beforehand necessarily means the person can never be partial. Like you I think that's an idiotic position, but that's his view, apparently.

I am prepared to give any Republican Senator who takes the oath to be impartial the benefit of the doubt. To the extent any of them suggested pre-judgment with improvident pre-trial statements, that was a curable mistake.

[NToJ]

AHHHH NEVER BE IMPARTIAL. This is so frustrating.

[MKE]

What did Roberts say ‘We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.’ He may need to revise those comments. And an apology to the president would not be amiss either.

[EscherEnigma]

He said. Like a liar.

If you believed him, that's on you.

[EscherEnigma]

Blackman, if you have any evidence to support that Trump has any accurate knowledge of the constitution, you should probably share it with the rest of the class. Because by his words and actions, it sure looks like Ginsburg is right.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Ya know, there's something unseemly about requiring juries to be unanimous, but allowing split appeals court decisions. If dumb jurors aren't allowed to disagree, but learned judges are, something is backwards.

And that applies in spades to idiotic remarks like yours, which assumes that 5-4 decisions don't show differences of opinion on the Constitution. How can you look yourself in the mirror with that kind of hypocrisy on clear display?

[gormadoc]

Juries have to be unanimous for criminal trials because the accused are recognized to have the right to be tried in front of their peers. The appeals process isn't the criminal trial; it's a review of the previous trial. If they win they get another trial in front of a jury. If you required unanimity for every court decision we'd still be deciding ancient cases to this day.

I don't hold any special hate for Trump, but he has not really shown any special aptitude for Constitutional questions or law in general. Why should we countenance his opinions on the matter when that's more up to the lawyers to figure out?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Did Obama, Bush, Clinton (either one), Bush, etc show much aptitude for the finer points of Constitutional law? Does "pen and phone" ring a bell?

My question is how can anyone think that split decisions show mastery of Constitutional law? If learned and experienced judges can disagree on such a fundamental thing as the Constitution, what makes you think they have mastered its study?

[NToJ]

"Did Obama, Bush, Clinton (either one), Bush, etc show much aptitude for the finer points of Constitutional law?"

I don't think there's any reason to slander the Bushes or Bill Clinton ("either one"? Which other one was President?) by comparing them to President Trump re: Constitution, just because they may not have known "the finer points of Constitutional law". But President Obama is pretty obviously not like the others on this charge. He taught constitutional law. In terms of "finer points of Constitutional law" he'd be in the upper echelon.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Obama's "pen and phone" slandered himself, if slander it be.

Man, you just can't get over your TDS. Orange Man Good Bad Good Bad Good Bad Good Bad perjury!

[Sarcastr0]

You're just making a fool of yourself arguing executive actions are unconstitutional when Obama does it.

[bernard11]

"Pen and phone" is just another version of "Benghazi." It's a reflexively shouted slogan, not intended to make a point but to show solidarity.

[Robert Beckman]

It’s often used that way, but not always (maybe even the vast majority of the time though, as it’s sometimes hard to tell).

Instead it’s also used to illustrate that those in power act in ways that extend their power. “Phone and pen” was certainly antithetical to the constrained version of the Presidency then-Senator Obama espoused during the Bush Presidency, but not at all out of line for actual Presidents.

[Harvey Mosley]

"In terms of “finer points of Constitutional law” he’d be in the upper echelon." Really? Is that why he proposed and advocated for unconstitutional laws?

[Joe_dallas]

"But President Obama is pretty obviously not like the others on this charge. He taught constitutional law. In terms of “finer points of Constitutional law” he’d be in the upper echelon."

Believing that "pen and phone" doctrine is valid under the constitution puts Obama in the lower echelon

[gormadoc]

No, and I don't think they did. Nor do I think that Trump does. Weird way to freak out; I've never said that I liked any of them.

Experts can be split on things all the time, legal experts or otherwise. The biggest debate in modern astronomy was on how large certain nebulous objects were: they set up an event dedicated to the question. Turns out that those objects were galaxies and were very large. The people who were wrong were still masters on the subject. There are questions all over the place, like P=NP, the nature of dark matter, supersymmetry, emoluments, and some "masters" will end up being wrong, especially in fields that change, like law. If you require "mastery" to be total and complete, then you're never going to find that requirement satisfied in anything at all.

[gormadoc]

Also, who cares how much the former presidents understand even the coarse outlines of Constitutional law? Nobody's suggesting we take their countenance, either. But you can go ahead and keep railing against presidents that retired a decade and two decades ago. Seems pointless now.

[Brett Bellmore]

"I don’t hold any special hate for Trump, but he has not really shown any special aptitude for Constitutional questions or law in general."

Since "special aptitude" in this context usually means being good at rationalizing why the Constitution doesn't really mean what it says, what of it? He's unquestionably aware of the broad outline: Congress legislates, the Executive branch carries the laws out, the Judiciary settles arguments between the two and tries criminal cases. He can pick up a copy and read it if he needs more detail than that.

That actually puts him ahead of most politicians, if he cares what it says.

[Sarcastr0]

He’s unquestionably aware of the broad outline: Congress legislates, the Executive branch carries the laws out, the Judiciary settles arguments between the two and tries criminal cases.

Don't be so sure. The Muslim ban, the Wall, his complaints about how hard it is for him compared to those tough dictators. He's not too great at whose job is whose.

[gormadoc]

"He’s unquestionably aware of the broad outline: Congress legislates, the Executive branch carries the laws out, the Judiciary settles arguments between the two and tries criminal cases."

I don't think so: he has been using executive fiat to legislate his entire presidency. The travel ban, for instance, stands on no solid ground if you're just going based on the Constitution; Congress should be the one to deal with that. However, he's taken hold of Congress' old decision to delegate that sort of authority to legislate himself. The sanctuary cities cases would be moot if he weren't using New Deal precedent that allows him to allocate funding, even though Congress is supposed to be the one in charge there. The tariffs should also be a Congressional purview, but he's again taking charge simply because they've delegated the authority. If he really understood and cared about the Constitution he would be doing something about the delegation of Congressional powers.

"if he cares what it says."

I don't believe that. I think that he, like almost all politicians, is more enamored with the fame and glory that come with the position and harbor an impulse to play God. He says he cares what the Constitution says when it comes time to garner support, but there isn't a President who hasn't.

[Harvey Mosley]

Executive fiat to legislate? Like DACA?

[iowantwo]

And past Presidents have shown aptitude? I'm thinking of the most recent, for a comparison. A President that thought he could overrule congresses determination as to whether congress was in session? Just as an example.

[Toranth]

Well, trivially, Trump has adequately demonstrated that he understands that the Constitution creates the office of President of the United States, and that the holder of this office is elected every four years by the Electoral College - which is chosen on a state-by-state basis. Since, you know, he was successfully elected to that office.

[NToJ]

I don't think Supreme Court Justices should talk about this stuff either, but you've pretty drastically misread her comments.

"First, there is no reason for Ginsburg to inject herself into debates about whether Senators should be disqualified."

She didn't, she said that a judge (not a Senator) would be disqualified for being impartial. As far as "debates" go that's a pretty anodyne comment.

"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."

What does "wrong" mean here? Ginsburg didn't say impeachment is categorically unreviewable. She said "We react to what's out there" in response to a comment that the President wants SCOTUS to "should stop this impeachment"--that is, to intervene. She's saying that's not how SCOTUS works. It doesn't intervene. It reacts. To questions and controversies, submitted by parties.

To the extent the President thinks SCOTUS should affirmatively issue a ruling saying that the impeachment is stopped, what's your priors on that? In my view it's also uncontroversial that that's beyond the power of SCOTUS, as it would be an advisory opinion, no Article III Standing, etc. I could throw out about 15 different other reasons, including political question, but you jumping to that one is the category error, here. Re-read the question being asked.

"To say the President doesn't even understand the document he is charged with faithfully executing the Constitution..."

... is just about the least offensive thing she said. Is there anyone--and I'm asking you directly--who believes that President Trump does "understand the" Constitution? Set aside whether Supreme Court Justices should say it, just tell us if you even disagree with the sentiment. If it helps, do you think the a President who tweets with the hashtag "IMPEACHMITTROMNEY" has really wrapped his arms around the document? What do you think of his commitment to the Constitution's, uh, Article XII powers?

Back to her original comment, which is re: impartiality. Your argument is that Justice Ginsburg cannot even speak life to the normative argument that judges of other people should be impartial, because doing so (here) makes her... impartial? Turtles all the way down.

[NToJ]

makes her *not* impartial. Sorry.

[TwelveInchPianist]

"She didn’t, she said that a judge (not a Senator) would be disqualified for being impartial. As far as “debates” go that’s a pretty anodyne comment."

This is what she said:

"The House indicts, and the Senate tries. Should a trier be impartial? Of course, that's the job of an impartial judge...[I]f a judge said that [they've already made their minds up], a judge would be disqualified from sitting on the case."

[NToJ]

The issue is whether she said a Senator should be disqualified for being impartial. She didn't say that they should. She said (1) they should be impartial and (2) a judge who is partial would be disqualified in sitting for the case. Neither of these statements addresses "whether Senators should be disqualified".

By "disqualified" I assume Professor Blackman meant legally disqualified.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Context shows she was clearly implying that Senators trying an impeachment ARE judges. I gather that's pretty much what most people think too. Except you.

[NToJ]

Context shows that she was implying Senators should be impartial, and that judges should be impartial too.

It's unfortunate for you that your preferred political leaders have so placed you in this insane position to argue for partial triers of impeachments. It is uncontroversial that Senate impeachment trials should be judged impartially. They're constitutionally required to take an oath prior to the trial, in which they sit. Every Democratic and Republican Senator will swear the following oath before any impeachment trial:

"I solemnly swear (or affirm, as the case may be) that in
all things appertaining to the trial of the impeachment of ----
-- ------, now pending, I will do impartial justice according
to the Constitution and laws: So help me God.''

Because that's in the Senate-adopted "Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials." Whether they are "judges" or "Senators" or "pelicans", they've decided, among themselves, to be impartial.

Why is this even a fucking debate? Most Republican Senators would not be stupid enough to claim pre-trial partiality. They're all mostly going to say they intend to be impartial.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I have -zero- preferred political leaders, and no political leaders of any stripe have placed me in any position. It says more about your beliefs that you can only conceive of political beliefs in the context of political leaders.

[NToJ]

Well save us the suspense, do you think Senators sitting in impeachment trials should be impartial? Should they let personal animus direct their action, regardless of the evidence? Should they ignore evidence? In answering, be sure to tell us what you think "impartial" means.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"shouldn't" is immaterial. They CAN'T be impartial, and neither can judges, prosecutors, defenders.

You may as well wish that wood were waterproof, or that lemon jello tasted like raspberries.

[Sarcastr0]

So you think the statement that judges should be impartial is an outrageous impossibility.

You have walked a mile of twisted logic to poop on Ginsberg's shoes, and you say no political leader got you there. I'm not sure that's as great as you think it is.

[NToJ]

If they can't be impartial, they shouldn't take an oath purporting to be impartial. And the issue isn't whether they can achieve the Platonic ideal of impartiality. It's whether they should even try. Do you think they should try?

[Dilan Esper]

Should they let personal animus direct their action, regardless of the evidence? Should they ignore evidence?

Why not? Nothing in the Constitution prohibits a Senator to vote to convict or acquit based on anything they wish to.

Indeed, I think one of the strengths of the impeachment clause is that it completely permits the Senate to, for instance, convict a person who technically hasn't violated a law but is fundamentally incompetent in the office, or to acquit a person who did violate important laws but who is crucial to, e.g., prosecuting a war.

[NToJ]

"Nothing in the Constitution prohibits a Senator to vote to convict or acquit based on anything they wish to."

There is a difference between doing what is right ("should") and doing what is constitutionally permissible. There's nothing in the constitution that prohibits Senators from choosing based on coin flips. Or asking their dogs. Do you think Senators should base their impeachment votes on coin flips or what their dogs think?

"...convict a person who technically hasn’t violated a law but is fundamentally incompetent in the office..."

Yes, but presumably you would still insist on the condition that the person be "fundamentally incompetent in the office" rather than "coin flip". And in determining whether someone is "fundamentally incompetent in the office" wouldn't you want them to impartially consider evidence?

[MatthewSlyfield]

Coin flips? Of course not.

On the other hand dog is God spelled backwards, so of course, they should consult their dogs.

The dogs couldn't possibly do worse than the average politician acting on his own.

[Dilan Esper]

If a Senator uses a bad criterion, the voters can vote him or her out of office. That's the only check that is necessary or appropriate.

[Kazinski]

I think it's impossible for Senators to be impartial. There are three Democratic Senators running for president, there were 4, I can't see how they would be impartial. There are 33 senators up for reelection and Trump is likely to campaign for or against every single one of them so I don't see how any of them could be impartial.

And I don't see any requirement in the Constitution that they be impartial. It's just a Senate rule passed with a wink and a nod, because no one was likely impartial in Clinton's impeachment either.

[TwelveInchPianist]

All the other issues with the comments aside, it's terrible reasoning. The framers knew how to created in independent branch of government to conduct impartial trials, but they chose to vest the power to try impeachments in the Senate, a political body.

[NToJ]

If I consult the imaginary zombie ratifiers, I can't imagine one of them saying "I think the Senate should try it because I want them to be impartial". Rather, I think they'd all say the Senate should try it, but be impartial. Setting aside the imaginary zombies in my head, Hamilton actually said the Senate should try it because impeachment is fundamentally a political charge, and for that reason the Senate is the "tribunal sufficiently dignified, or sufficiently independent . . . to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVE OF THE PEOPLE, HIS ACCUSERS". The cited benefits included: (1) the relatively large size of the Senate, (2) SCOTUS's potential lack of credibility on the issue, (3) need for such a tribunal to be directly answerable to the people, etc.

[NToJ]

Should, again, be "want them to be partial". Sorry.

[Bob from Ohio]

Hamilton said a lot of stuff, and of course that was an argument aimed at convincing people to ratify.

Note the concept of the House as the "representative of the people" in contrast to the Senate. That concept of the Senate probably died in the First Congress but after direct election, is beyond dispute dead and buried.

[NToJ]

"Hamilton said a lot of stuff, and of course that was an argument aimed at convincing people to ratify."

Right. If the "people [who] ratify" were convinced by arguments about Senate impartiality, what does that tell you about whether the ratifiers intended the Senate to "conduct impartial [impeachment] trials".

[Bob from Ohio]

Oh, who cares what they thought the Senate would be like. We have 220 years of experience to the contrary.

The Senate is just a smaller version of the House, but with bigger egos.

[NToJ]

"Oh, who cares what they thought..."

Me, other originalists, etc. Sometimes you pretend to care, when it suits you. For example, do you think LGBT constitutional rights should be adjudicated based on "220 years of experience" or by what the constitution was intended to guarantee (if anything)?

[Bob from Ohio]

The Constitution sets out no standard for how Senators are to perform their impeachment duties.

Impartial, not impartial, its Constitutionally irrelevant.

I am a textualist anyway.

[NToJ]

Things that are "Constitutionally irrelevant" can still be "relevant". Specifically here, we were having a discussion about what "[t]he framers knew" and what they chose to do, based on that knowledge. Surely even you would agree their intent (whatever it may have been) answers the question?

"I am a textualist anyway."

Textualism makes no sense outside of originalism. Why do you care what the text says? Because of its origin.

[Bob from Ohio]

"their intent" doesn't matter, its the words they used

Show me words in Article I, Section 3, penultimate paragraph that requires an "impartial' Senate trial.

[NToJ]

I don't care about their intent, just the words they used! Listen to yourself. Why do you care about their words?

I didn't say impartiality was constitutionally required. I did say I think impartiality was probably the intent, but I'm not so confident that I'd make a constitutional case out of it. I'm not such a craven dickhead that I'd argue for an explicitly biased trial. If some Democratic Senator comes out tomorrow and said "I'm going to impeach that son of a bitch no matter what the evidence shows", you'd (correctly) castigate that person.

[Sarcastr0]

Text alone will get you a very ambiguous document.

I'm a textualist but not an originalist - I look at the modern meaning of the language first, and if that doesn't deal with the issue (as is often the case) then to actual operational concerns given the purpose of the language.

[NToJ]

The "modern meaning" approach is something but it isn't textualism. You wouldn't try and interpret the message communicated in hieroglyphics by reference to a Wingdings translator. Because it cannot (logically) be the case that the writers of hieroglyphics intended meanings that they were unaware of at the time of the writing. To the extent you get the interpretation gets it right, it would be merely accidental.

Modern language interpretation needs to confront why you would look to the constitutional language at all. Dead man's hand isn't an argument against originalism. It's an argument against constitutionalism in the first place.

[bernard11]

Because it cannot (logically) be the case that the writers of hieroglyphics intended meanings that they were unaware of at the time of the writing.

I don't know about hieroglyphics, but the writers of a Constitution can hardly be unaware that the document will have to be applied to circumstances they could not anticipate, or in the context of knowledge they lacked.

In these cases we don't, or shouldn't, care much what the Founders would have thought about the specific case.

I don't think that has much to do with impeachment, however.

[NToJ]

@bernard11,

"...but the writers of a Constitution can hardly be unaware that the document will have to be applied to circumstances they could not anticipate, or in the context of knowledge they lacked."

That's an originalist argument! You're talking about what they were or were not aware of. If you think the constitution's ratifiers intended the words' meanings to change over time, go for it. Maybe you don't think "corruption of blood" was a term of art with a set meaning in 1789.

"I don’t think that has much to do with impeachment, however."

What the founders were "unaware" or "aware" of has something to do with a discussion (scroll up) about what "[t]he framers knew".

[Sarcastr0]

The authors are dead. They knew they were going to die. They knew that the meanings of words changed over generations. They didn't try to write the Constitution with legally precise language, but did not stint on the sweeping proclamations.

I interpret our constitution in accordance to the style with which it was written, and assuming the Founders were smart enough to realize how posterity works.

[NToJ]

@Sarcastro,

"They didn’t try to write the Constitution with legally precise language..."

There are parts of the Constitution that are not legally precise and parts that are. Do you think they intended some number other than six year terms for Senators, when they used the phrase "six Years"? Or that the meaning of "borrow" would change to something other than "borrow" for Congressional powers to "borrow Money on the credit of the United States"?

You can be an originalist and believe the founders left something to be decided for future generations. There's certainly plenty in there contemplating other people making decisions inconsistent with the ratifiers' desires in 1789. But the condition is critical. You have to believe based on what the ratifiers intended. That's why, even now, you're resorting "to the style with which it was written" based on what you understood the Founders surely meant.

[Sarcastr0]

I think it's a bit pedantic to call the use of numbers legally precise, though it is technically true.

I do think the Founders would be surprised if the meaning of 'six' changed. I don't think they'd be surprised if the meaning of 'person' or 'necessary and proper' or 'other rights' changed.

[Sarcastr0]

It's a bit postmodernist to argue that it's still originalism if I don't think the founders intended for their intent to be binding.

[NToJ]

@Sarcastro,

"I think it’s a bit pedantic to call the use of numbers legally precise, though it is technically true."

If we're arguing over legal precision, I think we're doomed to pedantry. But there are other examples. "Corruption of Blood" had a very specific historical meaning in 1789. The word "chuse" ("The House of Representatives shall chuse...") has gone into desuetude, but I won't "interpret" it based on an Urban Dictionary definition that takes off. We know what they meant, and what they didn't mean. Capitalized terms of art meant something when used, and later usage doesn't change what was originally intended.

"I don’t think they’d be surprised if the meaning of ‘person’..."

Well, we know that at least for a period of time they treated certain groups of "Persons" differently than other instances of "person" and they certainly didn't intend for the meaning to change. We know who the "such Persons" referenced in Article 1, Section 9 were, and it explicitly says what happens to those people must remain permissible until (at the risk of being pedantic) 1809.

"It’s a bit postmodernist to argue that it’s still originalism if I don’t think the founders intended for their intent to be binding."

I don't know what this means. I can tell you that there's nothing surprising about a hypothetical legislature anticipating and drafting for potential changes or leeway in the future. There are several features of that in our Constitution (like Article V). But when the legislature does use precise language, I've not heard anyone--even Brennan--argue that we can disregard precise language.

[bernard11]

That’s an originalist argument!

Given the infinite varieties of originalism I'm not surprised it can be called that.

[bernard11]

NTOJ,

If you think the constitution’s ratifiers intended the words’ meanings to change over time, go for it.

Depends on what the meaning of "meanings" is. Are we talking intensional definition or extensional?

Suppose we talk about "cruel and unusual punishment." Does that mean a specific set of punishments that were or had been in use in some places that the founders considered "cruel and unusual?" Or does it mean punishment that society at the time considers cruel, and which is uncommon with reference to some set of jurisdictions society deems relevant for comparison?

[Dilan Esper]

Hamilton said a lot of stuff, and of course that was an argument aimed at convincing people to ratify.

Bob says many things around here I vehemently disagree with, but he is absolutely right here.

The writings of the Framers were sales pitches. It's really super-important to understand this. Jefferson obviously didn't believe that all men were created equal, given that he owned (and brutally mistreated) slaves. The framers didn't actually believe that the Constitution would prevent factions from forming, even though they said it repeatedly. And the framers didn't think they were actually making "the people" sovereign. Nor did they actually believe the public had an absolute right to overthrow governments with force- they said that in the Declaration of Independence, but included a treason clause in the Constitution that prohibited it and made it into a serious crime against the state.

We must always remember that the framers' statements were advertising the Constitution, and contain the same amount of truth value as actual advertisements.

[Dilan Esper]

". Rather, I think they’d all say the Senate should try it, but be impartial."

They would only say that if, despite being politicians themselves,they had no idea how politicians actually act.

[Ben of Houston]

However, this isn't a normal situation, where a jury is brought in to hear the evidence about a crime they know nothing, a defendant who is a complete stranger, and a victim and a bunch of lawyers who are complete strangers, and they hear a bunch of evidence for the first time with no experience in the matter.

Here, there is a man that many of them know intimately, and given Trump's personality, every Senator either loves or loathes him. The Senators are also thoroughly informed of all the facts of this case and have been for months, and many of them bring in significant relevant experience and expertise. They also face extremely public support and/or backlash from their state depending on their vote. Capitol Hill has had this "jury" deliberate for months prior to the opening statement.

This could not be more unlike a criminal jury if they tried.

[MatthewSlyfield]

"to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVE OF THE PEOPLE, HIS ACCUSERS“."

Hmm, when did Hamilton say that? The constitution as originally written does not require that Senators be elected, and early nearly all were appointed by the state legislatures, not elected.

So "cited" benefit (3) would simply be false at any time that Hamilton mattered.

[anorlunda]

I think this is sad. Like it or not, RBG is an iconic heroine to many Americans. It sounds like she's loosing it. It's time for her to retire before it gets really embarrassing.

[Sarcastr0]

The right's been saying this for the last 30 years, so forgive me if I am skeptical of yet another judgment that Ginsberg is losing it.

[Rev. Arthur L. Kirkland]

"I would never criticize something a non-lawyer says, because they are not trained in law."

That sentence needs an editor.

[MatthewSlyfield]

Did the interviewer check for a ventriloquist?

#DeadParrotSkit #WeekendAtBernies

[Number 2]

I wonder why they did not ask the old bag about an investigating prosecutor who runs for office promising to “indict the motherfucker“ before she has any evidence that the “motherfucker“ did something indictable.

Because the prosecutor is also supposed to be “impartial” before accusing someone of a crime and placing them on trial. Even if that someone is a “motherfucker.”

[NToJ]

We do not expect prosecutors to be impartial. That's why they don't get to issue their own warrants, but have to ask somebody else for them. See, e.g., Coolidge v. New Hampshire (1971) ("Without disrespect to the state law enforcement agent here involved, the whole point of the basic rule so well expressed by Mr. Justice Jackson is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations--the 'competitive enterprise' that must rightly engage their single-minded attention."

[Patrick Henry]

Actually, prosecutors are supposed to be impartial. Their duty is to see that justice is done.

[NToJ]

Fall down a well, actually.

[Kazinski]

"How has he gotten away with not turning over his tax returns?"

I don't see how she can avoid recusing herself from the Trump tax return case that's coming up before the court. It's about Trump personally, it's about his tax returns, and she is clearly on record expressing her opinion about the controversy.

[Bob from Ohio]

"I don’t see how she can avoid recusing herself"

Oh, I can.

[Stephen Lathrop]

I read it as two controversies. One a question about public norms and elections, on which she commented. The other about legal requiremens, on which she did not comment.

[Dilan Esper]

The first comment is terrible.

The second comment, not so much. I know that it is fashionable among law professors- who generally hate the idea that there could be some area of law where lawyers and courts don't get the final say- to say that there are exceptions to Nixon v. United States. But there really aren't. There's a reason Justice White's concurrence is a concurrence- the Court specifically refused to say "well, there could be some case where it is so extreme that we get involved".

Nixon really does foreclose judicial review, so I really don't think Ginsburg is required to pretend that the Supreme Court will hear the impeachment case. They won't.

[Garnet]

Citizen non-lawyers already know suggesting the Senate is supposed to be impartial is odd. That's because it was settled, with Chief Justice Rehnquist present, in the Clinton Senate trial in 1998, as detailed in Jeffrey Toobin's book A Vast Conspiracy. Someone tried to address the senators as "jurors," and Joe Lieberman stood and spoke, noting that unlike jurors, the Senators all knew each other, all knew the defendant and, most critically here, were honor-bound to at least listen to what the public back in their states had to say about the matter, as regular panels ought never to do. Rehnquist agreed.

[NToJ]

There's no inconsistency here. It can both be the case that the Senate should answer to the people, and that the people expect Senators sitting in impeachment to act impartially. I certainly would expect my Senators to hear evidence before making up their minds. Are there any Trump defenders here willing to say that all evidence is irrelevant?

[Bob from Ohio]

All evidence is irrelevant.

[NToJ]

There's nothing President Trump could do to convince Bob from Ohio that he needs to be impeached? What if he adopted Bernie Sanders' platform? Is your political tribalism so rudderless that it really is just about the color of a uniform?

[Bob from Ohio]

"Is your political tribalism so rudderless that it really is just about the color of a uniform?"

You can't give the Resistance!!! a victory by satisfying their fondest desire.

[NToJ]

So now evidence is relevant, again.

[Bob from Ohio]

No. Still doesn't.

Trump, for better or worse, is the clan chief. So he gets defended against his enemies.

[Dilan Esper]

And there's nothing wrong with this.

To be clear, there would also be nothing wrong if you said "you know what, Trump went too far in the Ukraine call, he should be impeached".

Impeachment is a political process. That means you can make any political judgment you want. Indeed, "impartiality" isn't even a real concept here. Nobody's impartial with respect to political arguments. We all judge them according to our politics. "Impartiality" only works when you bring a jury in that has little or no engagement with the facts of the case, and you ask them to judge those facts (NOT law or political implications) on a tabula rasa. That's not the case here.

[Sarcastr0]

Bob's a nihilist - power for power's sake is all he needs. He legit thinks power justifies all methods and principles are for suckers.

It's pretty awful, but at least he's civil about it.

[Bob from Ohio]

"nihilist"

You did not spell "realist" correctly.

[Sarcastr0]

You've said before that in political reality nothing matters. Happy if you've changed your mind.

[NToJ]

"...there would also be nothing wrong..."

The concept of "wrong" means nothing in the world that you and Bob envision. Not everything is about constitutional limits. There are moral limits, too. The right to make "any political judgment you want" is not a justification for "any political judgment". You know that, because you tether it with "[w]e all judge them" (them being political judgments). What you've got wrong, with Bob, is that we should all be pointless nihilists who judge exclusively on the basis of "politics". Some of us think there are ethical restraints that have nothing to do with partisan affiliation.

[Dilan Esper]

I think plenty of things are wrong. Casting a political vote for political reasons is not one of them.

[Bob from Ohio]

"“Impartiality” only works when you bring a jury in that has little or no engagement with the facts of the case, and you ask them to judge those facts (NOT law or political implications) on a tabula rasa."

Even then, they bring biases with them. Ask a lawyer who has ever defended an accused child molester. Its possible for jurors to set those biases aside if the evidence is strong enough but its not easy.

Its impossible for Senators to set political consideratoins aside.

[Sarcastr0]

Just because no one is perfectly impartial doesn't mean there is no value in trying.

[Dilan Esper]

If there's literally no value whatsoever in succeeding, if in fact it will only create a phony norm of impartiality that is a lie, then yes, there is no value in trying.

[Rev. Arthur L. Kirkland]

"You can’t give the Resistance!!! a victory by satisfying their fondest desire."

You have given, and will continue to give, the liberal-libertarian mainstream a victory by choosing the wrong side in the culture war.

Open wider, Bob. Your betters aren't done with you yet. Nothing will save you other than replacement.

[Bored Lawyer]

There’s nothing President Trump could do to convince Bob from Ohio that he needs to be impeached? What if he adopted Bernie Sanders’ platform?

Adopting Bernie Sanders' platform is a High Crime and Misemeanor. Who knew?

[Dilan Esper]

There’s no inconsistency here. It can both be the case that the Senate should answer to the people, and that the people expect Senators sitting in impeachment to act impartially.

I don't think there is a shred of evidence that the people actually expect this.

Indeed, I don't even think the Democrats making this argument now expected this. They didn't expect it in 1999, after all. I think it is just a talking point.

And one of the big problems in impeachment proceedings is that rather than each side just admitting their arguments are political and situational, they dishonestly pretend that the Constitution requires their talking points. It's disgusting.

[NToJ]

"Indeed, I don’t even think the Democrats making this argument now expected this. They didn’t expect it in 1999, after all. I think it is just a talking point."

That's strange, because the Senate, in its wisdom, adopted rules requiring Senators to swear an oath to be impartial in impeachment trials, and then all the Democratic Senators took that oath during the impeachment trial of President Clinton. And if and when President Trump is impeached, all Senators will take the same oath.

"...each side just admitting their arguments are political and situational..."

There's an alternative here, which is that a Senator admits their arguments are political and situational, defends those arguments, but nonetheless says they will still at least wait to hear evidence before pre-determining the outcome. You can be impartial in the sense that you will receive evidence without prejudgment, and yet still base your decision on what you are calling "political and situational" bases.

Example: Democratic Senator believes that trial should lead to impeachment if it is true that the President intended to condition aid to Ukraine on an investigation of Hunter Biden for personal rather than civic/public benefit. Whether this is an impeachable offense is fundamentally a political question. But whether the facts support the offense is not a political question. The Democratic Senator may believe the evidence will show that impeachment is justified on this basis, but I would still expect them to, for example, hear evidence from the President, if presented. And if President Trump has persuasive evidence demonstrating that he either didn't intend to condition the aid, or only conditioned the aid for civic/public reasons (anti-corruption, for example), then I'd expect the Democratic Senator to receive the evidence and weigh it.

[Stephen Lathrop]

NToJ, whether or not the Senators received and weighed the evidence, the public interest is still vitally dependent on a requirement that at some point in the proceedings, in some orderly way, the Senators and the evidence are together in the same room at the same time. Only if that happens is there any chance of politically useful public accountability for the Senators.

[Dilan Esper]

"NToJ, whether or not the Senators received and weighed the evidence, the public interest is still vitally dependent on a requirement that at some point in the proceedings, in some orderly way, the Senators and the evidence are together in the same room at the same time."

It won't benefit me one bit if they do that. Nor will it benefit a single person who lives in my city, my state, or I think my nation. If that doesn't happen, nobody will be unemployed, no teenager will get pregnant, no person will become addicted to opiates, no bomb will be dropped on Yemenis.

Your political desires and the public interest are completely unconnected.

[Stephen Lathrop]

Dilan, are you trying to outrace BFO to become the VC's leading nihilist?

[Stephen Lathrop]

Dilan, I do not like to see the dice of happenstance loaded to favor future violence. If you do not understand that is the direction in which your nihilistic commentary points, perhaps you can be excused. But maybe you should work a bit on the problem of taking logic to extremes while considering human affairs.

History, including future history, is notably more complicated, and more diversely determined, than by anything pure logic describes. The notion that a peaceful future surely awaits post-impeachment America may prove out. It is very far from a certainty.

[Dilan Esper]

Nothing the Senate does or doesn't do is going to cause violence.

I am not being nihilist. You are being delusional.

I think the problem here is you have convinced yourself that impeachment proceedings are some spiritual cleansing force for the country rather than what they actually are, a power struggle.

[Dilan Esper]

That oath is completely non-binding. And everyone knows it.

The Constitution requires some sort of oath, so it's a placeholder.

[Leo Marvin]

You're right. It's a non-binding oath. But that doesn't make it inconsequential. Like many good rituals, it affirms a benevolent aspiration. And though words may not put food in anyone's mouth, the values elected officials affirm today influence the choices that define national character. Or do you think we aren't weaker and uglier as a country from, policy aside, 3 yrs of non-binding verbal assault on the norms of Constitutional fidelity and personal decency which predominantly informed our pre-Trump aspirations?

[Rev. Arthur L. Kuckland]

Isn't this the same retarded cunt that ruled that a private company can steal property via the kelo decision? If so what makes anyone think that she knows anything about constitutional law?

[Rev. Arthur L. Kirkland]

How is your "Volokh Conspiracy Civility Project" proceeding, Prof. Volokh?

Precisely as expected, apparently. The Volokh Conspiracy Board of Censors appears to have taken an exceptionally long holiday.

[Leo Marvin]

Do you have reason to believe Eugene has moderated any comments since moving the blog here? I ask because Reason's announced policy is that they perform no moderation, and I'd be surprised if Eugene would try to swim against that cultural tide.

[RestoreWesternHegemony]

I hope the tumor comes back and this disgusting hag dies a painful death.

[gormadoc]

"I would never criticize something a non-lawyer says, because they are not trained in law."

Really? As an academic it is your job to criticize things people say about your specialties when they are wrong, whether or not they are trained in the field or not. It's a natural tendency for every academic to be critical. The world would be a lot worse if everybody took this position, academic or not. Not criticizing any quacks or hucksters, just because they didn't have the requisite domain training, would have exacerbated the current vaccination issues. Politicians need to be criticized when they say wrong things: they need to be told "no, this budget will never work" or "no, it is illegal to take campaign funds to transport your rabbit on vacations." Managers need to be told that their hare-brained schemes won't improve the service. That's why experts exist: so that we can tell people who aren't trained in what we do what will and won't work.

[gormadoc]

"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."

There are a lot of people who swear oaths to defend and/or support the Constitution every single local, state, and federal election. If you think that means they understand it, then maybe you should read any of the Friday "Short Circuit" round-ups. There hasn't been a President particularly interested in actually following the Constitution for generations now. Instead, they just find trawl through existing laws to dredge up questionable reasoning. Your first article here was a criticism of Obamacare on Constitutional principles. Either Obama doesn't understand the Constitution or the oath means nothing: your choice.

[Eddy]

If President Trump had the proper legal training, he would have known that the Supreme Court's role is to interpret the laws, not intervene in policy disputes based on their notions of what the laws ought to be.

The President really ought to be instructed in the law by the graduates of one of our great liberal/libertarian schools.

[Eddy]

Again - if the Framers saw Congress consistently acting solely in the public interest, saw judges being uniformly impartial, and saw Senators, when acting in a judicial capacity, showing such impartiality as well, they would have been pleased. They would have rubbed their eyes, wondered if they were seeing things, and glanced at the heavens in search of supernatural signs of the arrival of the Apocalypse, but they would have been pleased to see such things.

Meanwhile, though, they designed the Constitution on the supposition that in many instances, government officials would lose sight of their duties and need to be checked by various ingenious arrangements.

The 2/3 rule for convicting someone in impeachment cases is one of those arrangements - even if the Senate is split into factions and this factionalism interferes with pure impartiality, at least the 2/3 requirement would require some kind of unity reaching beyond a specific faction in order to convict someone.

And while the impeachment system has allowed for unjust *acquittals,* the convictions have generally been of people who seem to have been quite guilty.

[Dilan Esper]

One other comment about the super-stupid "impartiality" argument.

Let's say the Senate is impartial. They agree they won't prejudge the case. They will pretend they know nothing about it. We conduct a full trial with all sorts of evidence. The House managers put on all the evidence that they contend proves the quid pro quo. The President's lawyers put on all the evidence of their various defenses- they call the whistleblower, subpoena Joe and Hunter Biden, enter into the record proof that the Ukranians got the aid and were not hurt by the delay, etc.

At the end of the process, does anyone doubt that the "impartial" Senate will vote to acquit just as they would now? So what's the point of all this "impartiality" bullcrap? They aren't impartial. They aren't going to be impartial. The most they can do is pretend to be impartial while we waste some of the country's time.

[NToJ]

"At the end of the process, does anyone doubt that the “impartial” Senate will vote to acquit just as they would now? So what’s the point of all this “impartiality” bullcrap? They aren’t impartial."

What kind of response is this? I do expect the Senators to act as impartial triers. Whether they do or not is irrelevant to whether they should act as impartial triers. It sounds like what you're worried about is that if we hold Senators to a higher standard than you expect from them, it will legitimize the lower standard they demonstrate after the fact. The opposite is true. If you don't hold politically accountable people to a higher standard, you make it more likely that they behave below the standard you set.

Frankly your adopted position sounds like Schumer's escape plan. Once the Democrats realized that the public may not make a non-impeachment vote politically damaging to Republican Senators, he's looking for a way to avoid the trial based on pre-judgment statement from Republicans. The right thing to do, if Democrats believe in their case (and I believe in their case), is to submit it, demand impartiality, vote based on that impartiality, and if the Republicans don't, you tell voters to consider it in the next election.

[Dilan Esper]

"I do expect the Senators to act as impartial triers. "

You might as well expect to have sex with 5 supermodels tonight.

[Eddy]

"Let’s say the Senate is impartial. They agree they won’t prejudge the case. They will pretend they know nothing about it."

I don't think impartiality and ignorance are identical. To take one example, the Senators can take what they know as citizens and legislators about national security and decide if U. S. national security depends on the aid to Ukraine going through.

"The most they can do is pretend to be impartial while we waste some of the country’s time."

Any time-wasting can be blamed on the House. whose impeachment votes trigger a trial. If the House claims to have proof of impeachable misconduct, the Senate has to listen unless there's some jurisdictional flaw in the proceedings (like with Blount, when they impeached an ex-Senator and the Senate decided they couldn't hear such cases).

[Eddy]

Cynicism - aka realism - is a great thing if it means lowering our expectations of what will happen and not being shocked at "omg a Congressman violating their oath/affirmation of office! This never happened before!"

Indeed, blundering around like a starry-eyed idealist sets one up for major disappointment and associated stress.

But realism means knowing what standards everyone is violating when "everybody does it."

[Jerry B.]

But, of course the House has been completely impartial in looking for a bare excuse for impeachment since the day after the 2016 election. Yessirre.

[Sarcastr0]

1. No one has argued that.

2. Partiality doesn't mean anything about the validity of the actual articles of impeachment.

The President is accused of using extortion to coerce a foreign power to intervene in a US presidential election on his behalf.
There is no one in US politics who would ever find that behavior remotely acceptable in a President of the opposite party.

At least Dems are consistent. The GOP are tying themselves in knots trying to defend the indefensible.

[Harvey Mosley]

"At least the Des are consistent." yes. When they do it, it's good. When the Republicans do it, it's bad. When Trump does it, Orange Man Bad!

And that applies to whatever "it" is.

[Sarcastr0]

Maybe respond to my comment next time, not like a sentence out of context.

[Naaman Brown]

There is no such thing as a purely impartial or unbiased trier of fact.

The question should be asked, can the judge or juror set aside judgement until after they have heard all the testimony and seen all the evidence presented.

To pretend that anyone going into trial is impartial, with no bias or prejudice, is hopelessly naive. I would call anyone claiming to be impartial a liar.

[Sarcastr0]

We want people to pretend because it cabins exactly how partial they can actually be.

[Alpheus W Drinkwater]

All of Prof. Blackman's outrage is against his interpretation of what Justice Ginsburg said, not what she actually said. What a sad strawman of a post this is.

[ReaderY]

I agree Justice Ginsberg could have said less.

But I find the idea that members of a body charged with trying a case should endeavor to do so impartially to be such a basic common-sense truism, such a non-controversial part of what ought to be the basic fabric of common assumptions by which we have a society, that attempting to characterize the idea as partisan or somehow inappropriate for a Supreme Court Justice to say only reflects how badly off course the country has gotten.

[Rev. Arthur L. Kirkland]

How close to Justices Gorsuch and Kavanaugh were you seated when they thanked, expressed solidarity with, and raised funds for the Federalist Society, Professor?

[F.D. Wolf]

Justice Ginsburg has reached the age where many elderly people simply lose the regulator between thought and word.

Yes, all Republican Senators should recuse themselves because they have made up their minds, but all Democrat Senators are undecided and will carefully and thoughtfully weigh the evidence before making up their minds. Please. No sane person believes that. There are no more than three or four Senators, and likely fewer, whose votes in this matter are uncertain.

[dwb68]

Just curious, Notorious RBG: where in the constitution does it say what Senators' qualifications are for impeachment?

Hint: it doesn't, it simply states "Oath or Affirmation." Nor does it say what the Oath or Affirmation need to be. The actual Oath is prescribed by Senate rules, and can be changed. In other words: Impeachment is 100% a political.

Ginsburg should spare us all the "benefit" of her formalist training in results-oriented opinionating.

[RestoreWesternHegemony]

She's a disgusting animal.

[Dilan Esper]

I just ran across this Posner law review article from 1999, which I hadn't read since just after it came out. It addresses many of the arguments we are now having, including whether a judge should comment on impeachment issues who might one day have the case before him or her. Interestingly, at that time, the liberals were making all the arguments the conservatives are now making. It's great reading:

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2835&context=journal_articles

[PaulS]

I'm confused over the "impartiality" question - If the members of the senate were called to be jurors in a court trial involving Donald Trump after he left office - wouldn't they all be excused because of their prior involvement with him? They would be (rightfully I would think) perceived as having an opinion of his trustworthiness etc based on this. They could pretend to be impartial but this would be questionable. In this case not only do they have prior experience which would affect their impartiality - they will additionally benefit from their decision. It seems to me that admitting this makes more sense than pretending to be impartial. In this case no one is.

[Liberty Lover]

Justice Ginsburg, in a court of law, isn't the grand jury supposed to be impartial in deciding whether there is enough evidence to bring charges? Would you say the House was impartial in presenting their evidence? Should judges cherry pick politically when doing interviews?

[awildseaking]

"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."

As a matter of the culture war, this kind of elitism is extremely important to criticize. A lot of people today seriously believe that if you don't have certain certifications that you can't be correct. In other words, they can't distinguish between a fact and the truth.

Fact: something commonly believed as and recognized as true. Not all facts are true.
Truth: objectively correct information. Truth prevails even when people do not believe something to be true.

Many people will qualify things as "a matter of fact" despite their facts being untrue. When you call them out on their incorrect facts, they become defensive and often resort to appeals to authority. After all, how would I know if something is a fact or not? Shouldn't we leave everything up to the highly trained experts?

[CaseyT]

You interpretation is incorrect. Facts are data. They can't be untrue.

[awildseaking]

This has never been true. Facts are items that people perceive to be true. Look at what happened to Galileo.

Conflating facts with truth is like dividing by zero. You can try all you want, but any proof that claims "facts = truth" is contradictory. You claim that facts are data that can't be untrue, but all one need do is deem something a fact and, if it is believed to be true, then it is. Gravity is a universal truth; whether you believe it to be a fact or not will not stop it from affecting you. Throughout history, there have been many "facts" that were untrue. Even today, there are such facts. We don't even know yet what truths will be revealed in the future.

I agree that facts should be data or something provable, but facts haven't been used in this manner for quite a long time. As a concept, facts may never have meant this in any capacity. In my opinion, the status of "facthood" has always mattered more than the truth of the matter in question. People seek official recognition of ideas they wish to be true because calling it a fact ascribes to it legitimacy. Look at any contested matter of truth in society today. People try to supplant their argument as much as possible by providing it legitimacy. We do this through citations, data, and reliance on facts, but everyone has facts. How we qualify facts and the standards we use to prescribe that status are nowhere near as objective as you might wish they were. This is part of what I love about statistics. There's a study proving just about everything as matter of "fact." If facts equal truth, then contradictory statements of fact equal contradictory statements of truth. This is not the case. There is no such thing as a contradiction of truth. As much damage as the postmodernists Marxists may have done to our cultural discourse, there are objective truths.

[CaseyT]

I have a question for Justice Ginsberg. If Senators should be disqualified from stating their opinions before a trial, what should we expect from Representatives who have spent the last two or three years saying Trump should be impeached, before any investigation was made? Shouldn't they be disqualified as well?

[PaulS]

Should senators who are actively running against a sitting president be precluded from participating in a Senate trial? They clearly have a personal interest in him being impeached.

Should s

[Sarcastr0]

Blackman hating on Ginsberg doesn't maker her an Obama judge, chief.

[Kazinski]

Blackman hating on Ginsburg?

I don't know about that, after all Ginsburg herself said about her previous comments:
"On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them."

A lot of people that are RBG fans might wish that she would not comment on public controversies that could come before the court.

[Leo Marvin]

I'm not especially an RBG fan, but I'll play one for purposes of this comment. I wish she'd clam up because her opining erodes an ignorant populace's confidence in judicial impartiality, owing to their misunderstanding of what impartial is supposed to mean.

But are you saying you think her regrettable comments will force her to recuse? If so, don't hold your breath.