Tuesday, July 12, 2016

Justice Ginsburg Should Stop Digging

Gerard N. Magliocca

Suppose that tomorrow Chief Justice Roberts gave an interview in which he said:  "Hillary Clinton--what a liar!  That private email server looked awfully fishy to me, and don't even get me started about Whitewater.  I hope I don't have to swear her in come January."

Would anyone applaud him for his "candor" or "courage?"  Of course not.  He would be rightly pilloried as a partisan hack.  What Justice Ginsburg is saying about Donald Trump is no different and should be treated no differently, even though I agree with the substance of her comments.

Even the greatest icons can embarrass themselves at the end of their careers.  Ask Willie Mays.


Willie Mays did not "embarrass" himself. He did misjudge a fly ball in the sun, on a day on which every single outfielder on both teams was having problems. The issue was with your expectations, not his play.

Gerard has a post at Concurring Opinions on this subject with the title: "Justice Ginsburg Should Apologize." Being a registered Republican, Gerard's post here seems to serve as a counter to Stephen Griffin's post, assuming that Griffin is a liberal. Perhaps other posters at this Blog should get on this bank wagon. Do some law professors have too much Summer time on their hands? Those interested might check out Gerard's earlier post on his ballot frustrations as a registered Republican.

Now let's play ball. And don't forget to flip your sunglasses in that sunny outfield to avoid being embarrassed even as a non-icon.

Utterly silly false equivalence.

Utterly silly false equivalence.

That Mays comparison is not helping my "GM is a conservative and doesn't like Trump, so there" line of argument. And, yeah, some would praise Roberts. Not many of the same people though.

Do I want a Supreme Court Justice that has the ability to nod and smile when asked about Donald Trump? Hell, I'd be scared to let such a person within 20 yards of me.

I think a non-smile and "I'm not going to answer that ... it's a partisan issue & us judges don't do that sort of thing" might not scare me. Toss in an off the record grimace, if you want.

Of course, Justice Ginsburg might have just as effectively responded "Who's Donald J.Trump?" with a wink and/or a nod. What might Gerard have made of that?

What is so wrong with acknowledging that the Justices are, for all intents and purposes, "partisan hacks"? Dressing up in silly costumes (black robes) doesn't make them non-political actors in the system. Why do we feel the need to adhere to a legal fiction that they are above politics?



I hope I don't have to swear her in come January."

Ginsberg may want to retire if Trump becomes President because she has just given the Donald an excellent argument to demand her recusal in any case concerning his policies. No apology is going to cure that defect.

SPAM I AM! seems to be expressing his not so secret hope that Trump will become President, in which case SPAM I AM! might retire his Chicken Little costume. Should Justice Alito have been recused because of his reaction to Pres. Obama during the latter's State of the Union speech regading cases before the Court concerning Obama policies?


I am voting libertarian for President, but I do not misunderestimate Trump's chance of winning a plurality in November like you Democrats continue to do.

"No apology is going to cure that defect."

No, but being utterly shameless can render it moot. Nobody has the power to force her to recuse if she refuses.

A more likely motivation for retirement is the prospect of being on the losing end of a long series of 5-4 and 6-3 decisions for the rest of her days.

Awender, the reason it's important that the justices at least pretend to be impartial, and attempt to really be it, is that they are given enormous power on the basis of exactly that fiction. Abandon it, and it's time to take that power away from them.

Brett: No, but being utterly shameless can render it moot. Nobody has the power to force her to recuse if she refuses.

Unfortunately, you are almost certainly correct.

SPAM I AM! seems quite adept at simple research. Certain rules apply to the federal judiciary below SCOTUS but not to SCOTUS. But speaking of "being utterly shameless," that's SPAM I AM! and Brett to a T.


Acquaint yourself with the Code of Conduct for United States Judges:

Canon 5: A Judge Should Refrain from Political Activity

(A) General Prohibitions. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or

(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.

(B) Resignation upon Candidacy. A judge should resign the judicial office if the judge becomes a candidate in a primary or general election for any office.

(C) Other Political Activity. A judge should not engage in any other political activity. This provision does not prevent a judge from engaging in activities described in Canon 4.

Do you ever tire of making excuses for malfeasance?

Bravo for SPAM I AM! for his hours of research on the Internet. I was well aware of this Code and it has been discussed at at least one thread at this Blog. Did his extensive research indicate that the Supreme Court is subject to this Code? That was the point of my comment that he responded to. Perhaps SPAM I AM! doesn't yet understand the distinction between a Justice and a judge in the federal system. Why hasn't the Court adopted the Code for its Justices, substituting "Justice" for "judge"? Check this link:

Note the article references Scalia declining to recuse himself from a case involving his hunting buddy VP Dick Cheney. Here's my reprise from The Monkey Cage:

Here’s a “Scalia” I posted at another blog (De Novo) earlier:


In that duck blind
Lady Justice unveils
Her traditional blindfold
For these bonding males:
Scalia and Cheney,
Shotguns at attack,
Taking aim at Justice,

Best "quack quack" poetry since Anne Frank wrote a poem after as a punishment being told to write an essay entitled "Quack, Quack, Quack, Said Mistress Chatterback."

Joe, you may be sorry later, but you have inspired a challenge to apply the "duck test" to presumptuous Republican nominee Donald J., both with rhyme and reason.

Query for English majors [thanks Garrison K. for your years of supporting English majors]: After The Donald's actual nomination (despite efforts by #NEVERTRUMMP), can he properly still be referred to as "presumptuous"?


Because there is no judicial body above the Supreme Court, compliance by the Justices to any code is purely aspirational and self enforcing.

The point remains that Notorious RBG has clearly violated Cannon 5 of the federal judiciary's code of conduct.

Mary Dudziak: I disagree with Gerard, however, that Ginsburg should be embarrassed. This misbehavior shouldn't be surprising from a woman who had to break so many barriers as a young lawyer. It may be a cliche that "well behaved women seldom make history," but it is still refreshing to see a historic figure like Ginsburg misbehave.

Apparently, codes of conduct do not apply to women.

I wonder if this new Notorious RBG defense will fare any better for the average attorney or judge than the new Clinton defense will fare any better for the average Joe or Jill?

SPAM I AM! misfires again with his "Canon" shot. How can Ginsburg violate a Canon that does not apply to her or the other Justices of the Supreme Court? The point remains at the to of SPAM I AM!'s head.

By the Bybee [expletives deleted], how " ... aspirational and self enforcing" was that Code to the late Justice Scalia referenced in my earlier comment?



In sum, you are arguing, if someone else cannot force you to follow an ethical principle, the principle does not exist.

Integrity and honor are gifts you give to yourself and cannot be forced upon you.

SPAM I AM! continues gnat-like on an issue on which he has demonstrated over and over again that he lacks principle. I am not making any argument. I have been pointing to the fact that the federal judicial code does not apply to the members of SCOTUS. In other words, SCOTUS is "above" that law.

By the Bybee [expletives deleted], if SPAM I AM! made those gifts to himself, he has been short changed, as he has failed to demonstrate both integrity and honor at this Blog over the years.

She has listened.

RBG has now said her remarks were "ill-advised" and that judges "should avoid commenting on a candidate for public office. In the future, I will be more circumspect."


Were you born a tool or are you a self made man?

Physician, heal thyself!

AS a libertarian, SPAM I AM! may claim to be a self-made man, especially when he gave up a lucrative career in a FL law firm for reasons of quality of life. Apparently he became a self-made man by non-procreative means, master debater that he is. (That's a polite way of saying GFY, which he may have accomplished."

I did not advise Ginsburg to say what she said. I did not acvise her to say her remarks were "ill-advised." But saying things that are "ill-advised" doesn't mean what she said was incorrect. Trump of course is completely "ill-advised" and incorrect, except for what he said about the Cruz Canadacy that Trump beached with the help of the Revengelicals.

I've heard mentioned that at the Pearly Gates the late Justice Scalia was challenged by a Higher Authority especially regarding Bush v. Gore (5-4, 2000) and Scalia's response to critics: "Get over it.!" Higher authority looks at the big picture and the devastation that Bush/Cheney led to that continues to roil the Greater Middle East and world at large.

By the Bybee [expletives deleted], does anyone think that Donald J. Trump will ever be "circumspect"?

My headline: 'JUSTICE GINSBURG REGRETS .... (wink, wink)""

A lesson from this "ill-advised" incident may be a symposium on the late Justice Scalia's snark for comparative purposes. And maybe Justices Alito, Thomas and Roberts will become more "circumspect."

I picked up Garry Trudeau's "Yuege!" on my way back from lunch and examine how circumspect Trump was in "30 Years of Doonesbury on Trump."

Shag's policy is to let younger ladies think for themselves.


Joe, my policy is much broader (pun intended) and includes older ladies as well. I imagine there is more gender neutrality at the Pearly Gates than here with the solo appearance of Mary Dudziak (You go, girl!).

Mark Graber came late to the scene here with a post that was drafted before Justice Ginsburg's regrets and completed and posted thereafter. Mark's post brought to mind Pres. Harry Truman's concerns with his economic advisors, wishing for a one-handed economist. Mark's post demonstrates a hydra-handed approach on Ginsburg's remarks on Trump with his 8 on the one hand-on the other hand discussion.

Shag: "I did not advise Ginsburg to say what she said. I did not acvise her to say her remarks were "ill-advised." But saying things that are "ill-advised" doesn't mean what she said was incorrect."

Conservatives and libertarians correctly assume from the outset that nearly all progressive jurists are political and will nearly always rule in favor of progressive policy over the law. Notorious RBG's comments did not in the least surprise folks like Brett and I.

The folks who were a flutter were the progressive legal community because Notorious RBG violated the bureaucratic omertà of offering a facade of neutrality ("judicial independence," "career civil servants," etc) while acting to advance progressive policy. It is bad form and worse public relations to out yourself as a political hack.


It is bad form and worse public relations to out yourself as a political hack.

# posted by Blogger Bart DePalma : 10:31 AM

It never seemed to bother Scalia.



"Conservatives and libertarians correctly assume ... "

makes an ASS of U, SPAM I AM!, not Me (with credit to the Urban dictionary). When SPAM I AM! uses "correctly" it is most likely followed by a lie. is SPAM I AM! the spokesperson for conservatives and libertarian? SPAM I AM! with this:

"Notorious RBG's comments did not in the least surprise folks like Brett and I."

(grammar aside) at least claims to speaks for Brett and himself. But SPAM I AM! in his several comments at this thread hasn't challenged the accuracy of Ginsburg's comments. It should be kept in mind that even after the Cruz Canadacy was savaged by Trump with the aid of Revenengelicals, SPAM I AM! has continued to refer to Trump as a fascist, perhaps SPAM I AM! thinking he was being patriotic. Compare SPAM I AM!'s numerous references to Trump as a fascist with Ginsburg's one-time use of "faker" in reference to Trump. I wonder if SPAM I AM! is speaking for Brett on this.


The accuracy of Notorious RBG's comments about Trump are irrelevant. The fact a Supreme Court justice who may very well be called to rule on a President Trump's policies made these comments is the issue.

If our local judges made similar comments concerning the candidates for county government, the state judicial review commission would properly remove them from office.

Part of your job description as a judge is to at least pretend that you can be neutral and objective.

Wow! I gave a softball to SPAM I AM! he comes up with

"The accuracy of Notorious RBG's comments about Trump are irrelevant."

SPAM I AM! is constantly inaccurate about so many things: history, economics, law, whatever. In the eyes of SPAM I AM! that cannot see, it is better that a judge to pretend to be neutral and objective rather than actually be truthful and accurate. SPAM I AM! seems to prefer his over and over claimed fascist The Donald be protected from accuracy? That a candidate can openly lie and fake in efforts to become President? Compare the power of a President, especially as C-I-C, with that of one Justice (sometimes out of 9). As the late Justice Scalia said about Bush v. Gore (5-4, 2000) to critics: "Get over it." Of course America did not get over the Court's election of Bush/Cheney and what they did to America and the world over 8 years.

Mark Graber: On the other hand, as Mark Tushnet indicates, norms are changing. Bush v. Gore (2000) demonstrates the Republicans on the Supreme Court are more interested in advancing the personal political aspirations of their political sponsors than acting on the basis of their constitutional principles—or at least that Republican judicial appointees have come to the conclusion that conservative constitutional visions are best advanced by judicial decisions that advance conservative political aspirations.

Quite the opposite.

Article II, Sec. 1 of the Constitution expressly grants plenary power to the State legislature to choose electors, In the aftermath of the 2000 election, Democrat majority on the Florida Supreme Court attempted to rewrite state law to allow three south Florida Democrat county election commissions to manufacture votes for the Democrat candidate for president, votes which subsequent media counts of the ballots could never find.

The US Supreme Court stopped the Florida Supreme Court's power grab.

The conservatives on the Court (Renquist, Scalia and Thomas) wanted to enforce Article II, Sec. 1 as written, but the majority declined to reach the core issue of the Article II grant of power and instead seven justices reversed the Florida Supreme Court on equal protection grounds.

As is her practice, Ginsberg in dissent chose the position of the Democrat Party over the Constitution. Notorious RBG's recent comments criticizing the current GOP candidate for president are consistent with that dissent.

In other Supreme Court news ("we are an even number bunch, just like in 1792 ... so it's originalist!") ...

The Supreme Court rejected multiple appeals from a death row inmate, Breyer alone dissenting on the record, citing his long-held concern for the constitutionality of executing those on death row for decades. After 34 years, the person was executed.

A few days ago, the Supreme Court announced scheduling for the first set of October '16 oral arguments. It also noted (including on 7/18) three scheduled days during the "off season" when summer orders will be released.


A recent post comments (the policy of late seems to be "non-review" reviews) a recent book on the Burger Court. I read the book myself.

It was decent, especially I guess if you are less familiar with the material than me, but was disappointed. I wanted more of an inside view, thought it was a tad heavy-handed on the "shift to the right" theme (and by now, as compared to the mid-80s, the shift is quite apparent) and was a too standard run thru of a few basic legal subjects, hitting the usual major cases.

Basically, it was one of those books that was somewhat nutritious but not that satisfying. For those expecting more of the "personal" feel of the co-author (Linda Greenhouse) as found in her columns, you might be disappointed. I'm not familiar with the other author, not sure why he particularly was picked for the role. [He appears to be an expert in tax law and not in this period particularly.] Liked her book on Harry Blackmun and the "Before Roe" collection she helped compile was also worthwhile. This is more "homework" worthy.

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