It is refreshing, under most circumstances, when a government official speaks plainly about public issues – actually answering the question that was asked without bobbing, weaving or dissembling. It doesn’t happen all that often so it’s especially unfortunate that when it happened last week – coming out of the mouth one of the highest officials in the federal government, no less – it was as inappropriate as it was interesting.
Judges have a fundamental responsibility to maintain the appearance of neutrality on certain issues, and the range of issues only grows as the judge’s purview increases. Thus, a member of the U.S. Supreme Court should not be expressing an opinion on any presidential hopeful, let alone a party’s all-but-certain nominee. Justice Ruth Bader Ginsburg violated that rule last week in her inopportune comments on Donald Trump. She should have smiled and said “No comment.”
Instead, asked about Trump by a New York Times reporter, Ginsburg poured out her thoughts. “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.”
She said the possibility reminded her of something her late husband, Martin D. Ginsburg, a prominent tax lawyer, would have said: “‘Now it’s time for us to move to New Zealand.’ ”
It was astonishingly bad judgment. In this sharply divided political year, her feelings about Trump track those of millions of other Americans, just as another justice’s doubts about Hillary Clinton would echo the millions who cannot tolerate her. It’s that kind of year.
The problem isn’t that Ginsburg has an opinion. Like anyone else, she is entitled to take note of events and to draw conclusions. But there are professions where their jobholders must give up or at least temper the right to speak their minds about certain issues.
The line may be indistinct at certain times, but there can be little doubt that a Supreme Court justice should not be expressing such opinions about a presidential candidate. It damages the jurist’s reputation for impartiality.
Imagine a repeat of the 2000 presidential election, in which the race between Democrat Al Gore and Republican George W. Bush was ultimately decided by the Supreme Court. Ginsburg would have little choice but to recuse herself, further damaging the country’s willingness to accept the court’s decision as legitimate.
It is less concerning that Ginsburg also criticized the U.S. Senate for its refusal to consider the nomination of Judge Merrick B. Garland to succeed the late Antonin Scalia on the court. It’s not just that her criticism is on point – it surely is – but it deals directly with an issue affecting the quality and public acceptance of the court’s work – her work.
To be sure, her comments also contain an element of political criticism – it is the Republican leadership that is refusing to budge on Garland’s nomination – but judges are known to complain when politics interfere with the administration of justice. That’s what the Senate has done by refusing even to give Garland a hearing.
Some may question Ginsburg’s decision to speak out on the Garland issue. That’s fair enough; it is at least debatable. Her unwise decision to sound off on Trump is not. She should have passed on the opportunity and kept her complaints about Trump to herself.