Tuesday, July 12, 2016

Ginsburg and Trump: Unconstitutional on His Face?

Stephen Griffin

Justice Ginsburg is receiving considerable criticism for her negative comments on Donald Trump.  Is there a way to defend her?  Suppose she believes that Trump is not merely a bad candidate for president, but an unconstitutional one.  Unconstitutional on his face, so to speak.  That is, Trump both argues for directly and represents, through the sum total of his rhetoric and actions, positions that are contrary to the Constitution.  Such a candidate might be seen as a unique danger, thus possibly justifying extraordinary statements such as Ginsburg's.

If we are in ordinary times, I agree with Ginsburg's critics.  It is a bad idea for Supreme Court justices to express opinions on who should win elections.  But if you had an unconstitutional candidate, wouldn't that change things?  Speaking hypothetically (since I don't have time to review all of Trump's statements--but see William Saletan's articles on Slate), suppose you had a candidate who not only argued for specific racist policies, but argued that racism was a good way to approach public policy generally.  Who believed that fundamental civil liberties and civil rights should not be significant restraints on government action.  And, important I think to understanding Ginsburg, who attacked specific federal judges and the federal judiciary as an institution.  Re my earlier post on how Trump could be winning, in other words a sort of David Duke writ large.  Supposing all this, wouldn't such a candidate pose a unique threat to the Constitution?  That's how we might understand why Ginsburg felt she had to speak out.  At least, that's my suggestion and I'll open for comments.


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I'll be 86 next month and would not suggest that the younger Justice Ginsburg should not have exercised her 1st A speech rights concerning Trump. At least she was direct and did not use dog-whistles and code words as have other Justices in displaying their political - and perhaps gender and racial - biases both in cases before the Court and statements outside the Court. Keep in mind Bush v. Gore (5-4, 2000) when the conservative majority elected Bush, and look at the Middle East now. And consider the treatment of President Obama from day 1 of his first term by Republicans and other conservatives. And, Stephen, I'm keeping in mind your earlier post and your essay on the late Justice Scalia for a symposium; I appreciate a sort of new direction you provided in that essay about Scalia's training as a debater that honed his skills with rhetoric used in some of his snarky dissents. Members of the Court can be and have been political over the years. ("Let me count the ways," going back to CJ Marshall in Marbury v. Madison.)

Perhaps some conservatives out there might find standing to file some complaint with the Court about Ginsburg's statements. Or Congress might sic a committee or two to investigate this. Or Trump could engage in even more of his crazy rhetoric. Bring it on. Her concurring opinion in Whole Woman's Health, consisting of a single paragraph, makes the case for choice. She's been there for women and they will be there for her.

While it's unusual for a Justice to comment directly on presidential candidates, it's not exactly unprecedented: Joseph Bradley had the casting vote for Hayes; O'Connor was reported to have made a number of, well, unusual comments prior to Bush v Gore. In many other cases there's no real secret about a Justice's political views.

In a word, no. Advocating for different constitutional norms does not make a candidate "unconstitutional" even if you find such norms abhorrent. Franklin Roosevelt was not an unconstitutional candidate because he opposed prohibition. And unfortunately, Justice Ginsburg's comments today effectively ruin any hope of labeling this as an unprecedented in response to a unique threat. She didn't comment on Trump's positions in contrast to civil liberties and constitutional guarantees. She complained that he hadn't released his tax returns. RGB, please stop.

What is an "unconstitutional candidate"? Ted Cruz? (some think he's unqualified by not being natural born)

And, "argued that racism was a good way to approach public policy generally" ... does that mean Warren Court justices could have publicly opposed George Wallace? And, "fundamental civil liberties and civil rights should not be significant restraints on government action" is rather open-ended too.

Not sure about Mark Field's first example. Five justices was on that panel, right? O'Connor spoke in a more private way though a bit recklessly as it turned out. There is really no secret to various justices' views either. For example, Thomas' wife publicly endorsed Ted Cruz and it's clear his views are similar. OTOH, don't really want him to do something like what RBG did in a FOX News interview.

The rejoinders in various places (including here) are interesting. I still think she crossed a line & rather her not have done so. It is something of a venial sin overall but the basic norm she broke is valid.

Yes, there were 5 Justices on the Commission, but it was structured so that there were 7 Dems, 7 Rs, and Bradley. All 14 of the others voted party line, leaving Bradley with the deciding vote. In that sense, you could say that 5 Justices expressed their views on the presidential candidates.

Right. It's not quite the same thing at any rate.

Her comments are particularly annoying given her responses to those who wanted her (and Breyer) to resign while Obama still had time to appoint a reasonable replacement. Ginsburg thinking that Trump is an appalling candidate won't help her if he actually wins -- and it's a situation like that that prompted the calls for her to resign. Apparently she (and Breyer) care more about being justices than accomplishing justice.

Ginsburg's comments are also terrible politics. The most damaging thing Trump has said all cycle were his criticisms of Judge Curiel. Ginsburg has just handed everyone on the Right a perfect rejoinder.

"Apparently she (and Breyer) care more about being justices than accomplishing justice."

Perhaps, they think serving in their position when they are quite able to do so and not blatantly resign (and taint the idea that being a justice is not blatantly ideological -- Breyer is particularly concerned about avoiding that including in his remarks about the institution) for political reasons furthers "justice" in the long run. RBG has been in public life promoting justice since the 1960s. She plays the long game. And, simply put, she personally figured Clinton would win. I think that is even more of a safe bet than it was a few years ago.

"perfect rejoinder"

A personal statement by a justice that a candidate is a lousy choice is not a "perfect" rejoinder to criticism that Trump singled out a judge for prejudiced/confused reasons, but do think some will cite it. Rejoinders tend not to be "perfect" these days; still best to avoid them when possible.

TM (the last justice to be replaced by a president on the other end of the ideological spectrum) played the long game just as much as Ginsburg. Did being replaced by Thomas further justice in the long run? Did it help the image of the court? Is there a reason why the last time such a replacement happened was now a quarter-century ago?

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TM (the last justice to be replaced by a president on the other end of the ideological spectrum)

So Thurgood Marshall should have retired in 1980 (figuring Carter would lose) or what?

Did it help the image of the court?

Trying to wait out the Republicans didn't do him that well -- don't know who Reagan would have picked any worse in his eyes than Clarence Thomas. Him lingering on in a small way tainted his reputation, people thinking he hung on too long. Warren tried to game the system too. Bit him in the ass. In the long run, sort of respect that Breyer and RBG know what they are doing.

Is there a reason why the last time such a replacement happened was now a quarter-century ago?

Other than maybe 85 year old Harry Blackmun, who held on to protect abortion rights and such until a Democrat was in the White House (to the degree that is why he did it), not many cases where such a timed retirement occurred quite like those two. Rehnquist died in office. O'Connor retired to take care of her husband. Souter retired early because he didn't like the job much. Might have thought it was a good time at the start of the Obama Administration, but even if that was true, RBG likes her job, and she's now the leader of the liberal wing. Stevens was 90. etc.

And, as I said, RBG thought Clinton (the supposed candidate before too) would win. Sort of stacks the deck. She might not have realized the alternative would be that bad, but now probably figures the odds are if anything better.

Let's accept the premise for a moment, in what world would voters who are tempted to vote for Trump be persuaded by Justice Ginsburg repeating and rehashing Democratic talking points? I'm as anti-Trump as they come, and what I'm seeing on the right is that comments like these, if anything, make #NeverTrump-types reconsider their opposition.

In other words, RBG's comments are not only inadvisable for a sitting justice, they are also likely to be counter-productive.

I see that Prof. Adler is still working on his concern troll schtick.

Adler's predictions suggest he's wearing blinders while riding this pony. I can imagine the late Justice Scalia observing all this wherever he is, recalling what she used to say to him about George W and Dick Cheney.

It's hardly concern trolling. I would genuinely like folks on the Left to stop doing things that risk making Trump more electable. He needs to lose, and lose badly.

I suppose, however, there is a practical political case for RBG's comments if one believes that might encourage some anti-Clinton Democrats and progressives to hold their nose and support HRC. I would still object to her comments, but I would understand this rationalization for the remarks.

Some of us on the left wish that those on the right since Brown v. Bd. of Educ. had not paved the route taken by Trump to become the presumptuous GOP nominee, with Trump saying openly - described as politically incorrect - what the Republicans have been saying in a more politically correct - but coded - manner. Is the concern on the right that Trump has exposed them?

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Trump's views are unconstitutional because he "argued that racism was a good way to approach public policy generally [and] believed that fundamental civil liberties and civil rights should not be significant restraints on government action?"

Trump is running a fascist campaign scapegoating foreigners for the working class suffering during the ongoing economic depression. However loathsome this campaign may be to Justice Ginsberg, his proposals do not appear to violate the Constitution. The Constitution does not prohibit trade and immigration barriers, require foreign aid, or protect the civil rights of overseas enemy combatants.

In any case, what makes you think that Ginsberg gives a damn about what is written in the Constitution? Whenever there is a conflict between a substantial progressive policy and the Constitution, Ginsberg is almost an automatic vote for the former.

I'm seeing on the right is that comments like these, if anything, make #NeverTrump-types reconsider their opposition.

I don't like the comments in part since such things aggravate this sort of thing. People are not fully rational regarding these things, and buttons are pushed when they think judges are politicking. It's a bit different than various other things and why some (including me) don't like judicial elections. Even if politics will still be involved. And, I don't think RBG's comments really are going to push many votes Clinton's way. She doesn't have that much cachet, e.g., with the Bernie or Bust crowd.

But, serious #NeverTrump types shouldn't change their mind because RBG makes a few comments of this sort. If that is all it takes, it's a weak thing. And, so it is for many, as we seen leading Republican after leading Republican (and average ones) who strongly rejected Trump in atypically harsh tones eventually supporting him. So, a comment like that sort of pushes people's buttons too, especially given past comments of certain people.

Wow! SPAM I AM!'s professional idle hands are busy at yet another thread spewing his hate. And once again SPAM I AM! demonstrates his ignorance on economics with his reference to "the ongoing economic depression." SPAM I AM! is just another faux libertarian for whom progress is going back in time. Or perhaps SPAM I AM!'s objections to Justice Ginsburg are based upon her strong pro choice views.

Hopefully someone has pointed this out above, but the obvious problem with this defense of Ginsburg is that Ginsburg didn't say that Trump poses a threat to the Constitution. Rather, she said he has a big ego and should release his tax returns. She has some expertise on the former, none on the latter. Even if you could argue that a Supreme Court Justice who believes a presidential candidate poses a threat to the Constitution can ethically offer criticisms of that candidate on other, perhaps more persuasive grounds in hopes of defusing the threat, it's obvious that Ginsburg's comments aren't persuasive in the least to anyone who wasn't already going to vote for someone other than Trump. If she had said that Trump posed a threat to the Constitution, I imagine a small number of voters might put some stock on that.

Ginsburg didn't say that Trump poses a threat to the Constitution.

She noted to the NYT:

"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.”

The comment sounds like she thinks Trump is a threat to "the court" (Supreme Court), which would have some implication (given its role) to "the Constitution." I think many would reasonably think a "faker" with no "consistency" would be a threat somehow too if a justice of the Supreme Court says so. Also, given her views and concerns, that she isn't really concerned about tax policy or something here. Realize this is a step further.

I agree with the "non-persuasive" point except to the point of (1) her sending the message that an extra degree of effort would be warranted (2) it isn't as much that she wants to egg people on, but she personally is so concerned about it that she felt compelled to speak out. This was the view, e.g. of the co-author of the Notorious RBG book.

Guys, take a deep breath and read Mary Dudziak's post on Justice Ginsburg. Can some of the criticism be gender based? Trump trounced the GOP sweet 16 with political incorrectness. Many Republican are concerned with Trump as it presumptuous nominee. Assuming Ginsburg was judicially/politically incorrect with her remarks, consider her few words with the volume up the wazoo political incorrectness of The Donald.. Enough! Recall that great Boston county lawyer Joe Welch's rejoinder to Sen. Joe McCarthy suring the Army McCarthy Hearings back in the early '50s when I was in law school:

"Until this moment, Senator, I think I never really gauged your cruelty or your recklessness. Let us not assassinate this lad further, senator. You have done enough. Have you no sense of decency?"

What if one of the GOP sweet 16 had a real pair to counter Trump? Has it taken an 83 year old lady with her few words much milder than those of Trump for some perspective? Our country is at stake. Let's not engage in too much parsing of Ginsburg's few words. Let's sit down and listen to some opera, with the spirit of the late Justice Scalia in attendance.

I see no reason to think Trump wouldn't appoint qualified conservative judges. His list suggests as much. I took her concern about the Court to be that she doesn't want a lot of vacancies to be filled by conservative nominees. I don't see what being an inconsistent faker has to do with being a threat to the Constitution. No one thinks Hillary is a threat to the Constitution because she's taken multiple sides on dozens of issues over the years, and is widely perceived as insincere.

Check out this link:

"Donald Trump wants to 'open up' libel laws so he can sue press"

Might this be a threat to the 1st A, assuming he could accomplish this if he were President? Others might expand on a Bill of Particulars of potential Trump threats to the Constitution in his own words.


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Asher leads with having "no reason" (Trump somehow being unreliable? why would anyone have a "reason" to worry about that?) to think Trump's list of suggestions would not lead to qualified conservative Supreme Court justices.

And, overall, that RBG is concerned about the ideology of said justices. So, Trump is just a guardian variety conservative there (Cruz et. al. would have the same "problem") and she would say that whomever Republican was running. That's a way to go. It still could very will (if you are a leading liberal, let's say) be seen as a threat to the Constitution if the future of the Court might be at least 6-3 conservative.

But, I have let's say "a reason" to think she thinks Trump specifically is an issue. Her overall remarks make me think she is worried about the country as a whole and given she is a justice of the Supreme Court (and an appeals judge before, a law professor, advocate etc.), she would specifically be worried about his constitutional/legal role. Likewise, in that role, being a big phony that cannot be reliable upon so much that she speaks out would be a problem in that respect too. Since it's a big part of the job of a POTUS.

"No one thinks Hillary is a threat to the Constitution because she's taken multiple sides on dozens of issues over the years, and is widely perceived as insincere."

Well, yes, people on this very blog see her as a threat ("no one" might mean "not enough in my eyes to matter" ... shrugs) for being a big faker basically with no basic reliable principles [and other nasty things reasonably implied], making her a danger to the office. Again, such a person would be "a threat to the Constitution" given they are the executive of the U.S.

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