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Ruth Bader Ginsburg – Politician
More than a few eyebrows have been raised recently about the conspicuous entry of another distinguished voice into the maelstrom of the current presidential race. Justice Ruth Bader Ginsburg has taken up herself in a series of interviews and pronouncements to lace into Donald Trump and all but endorse Hillary Clinton as President of the United States. In her discussion with New York Times Supreme Court correspondent Adam Liptak, she sounded just like another partisan political figure opining in the sad state of politics in the United States.
At one level there was nothing surprising in these particular remarks. Anyone who has paid the slightest attention to her work on and off the Court in recent years knows of her diehard liberal views on virtually all these issues. Her denunciations of Donald Trump, her endorsement of Merrick Garland for the open seat on the Supreme Court, her criticism of the Senate to move forward on the nomination, her intense dislike of Heller on the Second Amendment, and of Citizens United on First Amendment protection of corporate speech are all part of the basic liberal playbook to which she subscribes. Only her reference to her late husband Martin Ginsburg that “Now it’s time for us to move to New Zealand,” gives some wry sense of the level of her discontent.
Yet, even if predictable, it is also disquieting. Her current views show a quest for the lime light that is inconsistent, I think, with the effort of a justice of the Supreme Court, no matter how passionate her views, to keep to the judicial role exclusively, so as to avoid even the appearance of bias in her decisions. But anyone who looks at the picture that the New Republic took of her on September 28, 2014 bathed in red, while wearing of judicial robes in a grand room in the Supreme Court building, knows exactly what is going on even before reading the title attached to Jeffrey Rosen’s piece, “Ruth Bader Ginsburg is an American Hero.” Not exactly the title that precedes a detailed dissection of her written opinions.
Therein lies the problem. The Justices should be subject to close scrutiny in all they write, by their supporters as well as their detractors. But the worshipful stories undercut any form of critical intelligence. In an odd sense they are worrisome precisely because her liberal supporters don’t even think that they have to mount a defense of key decisions.
But in my view, however, there is a lot of work to be done, given the strength of my disagreement with many of her views. I think that Citizens United was rightly decided, and that political speech through the corporate form should be protected as much as individual speech. Banning political speech before election time cuts to the heart of First Amendment protection. Similarly, knocking down the contraceptive mandate in Hobby Lobby was also the right choice. It seems utterly indefensible that the state should ever put any individual or firm to the choice between abandoning their core religious beliefs and being able to participate as equal citizens in the marketplace. Conditions of universal service are appropriate for monopoly businesses, but not for employers or vendors in competitive markets. Nor do I think that it is appropriate in cases like Friedsrichs v. California Teachers Association to force teachers to support a union that they do not wish to join in order to continue with their public employment.
All of these cases involve some application of the doctrine of unconstitutional conditions, which in former times was constantly (and correctly) invoked by left to limit the choices that a monopoly government could impose on its citizens. No one could be asked to swear that he was not a communist in order to get a real estate tax exemption or to become a member of the bar. No one could be forced to waive his or her Fourth Amendment rights against unreasonable searches and seizures to drive on the public highways. Here, then, is the larger danger of the Ginsburg forays into public policy. There is not so much as a syllable of reasoned argument in support any of the positions she endorses. It is all ipse dixit.
That is not how public disagreement should be voiced. That point applies with equal forces to cases where I agree with her general approach. I have long been skeptical that the Second Amendment should be read disconnected from the state militias to which it refers in its opening clause, and I think that in dealing with affirmative action programs, as in Fisher v. United States, that the state should have greater discretion in how it runs its own businesses than how it regulates others.
So here is the deeper concern. The entire pattern of adoration is not only made to raise the prestige of Justice Ginsburg, it is also meant to silence those who disagree with her. After all, if the points are as obvious her comments suggest, what reasonable person could disagree with her? Modern progressivism does not represent a new form of intellectual openness. All too often it represents a substitution of some new dogmatism for some old one.
Published in Law
Do you think she will recuse herself from any cases that she has publicly pre-judged?
Richard,
Mrs. Ginsberg’s outlook is classically Upper West Side Manhattan. This patrician left wing mentality if kept to social and charitable endeavors is benign. She and her husband were undoubtedly good and lively company. I’m sure they participated in many good charitable causes. However, this mentality when trying to impose itself upon the political realm is a disaster. The obsession with the left-wing point of view over and above the most carefully reasoned and experience proven conservative argument is nothing but a prejudice masquerading as social justice.
When Allen Greenspan missed the Real Estate bubble that he could have punctured in 2005, saving us a great deal of misery, I could explain it only as senility. The Greenspan of years before would not have made such an obvious mistake. Now with Mrs. Ginsberg, I am coming to much the same conclusion. I think in years past her self-respect as a jurist would have kept her from making these statements. I think she is not only out of touch with the vast majority of the American people (the normal state of the Upper West Side), I think she is out of touch with reality itself.
Regard,
Jim
Would there be a way to end these lifetime appointments? I’m sure the framers did not anticipate people remaining on the bench for 20 or 30 years. Also as the court has gained so much power in the country they will need their wings clipped at some point
It’s getting harder and harder for someone to say that Ginsburg separates her political ideology from her judicial decisions.
Scalia used to defend the split on the court by saying that justices voted according to their legal philosophy, not politics per se. But these comments are not about philosophy, they’re about personality.
Two reactions:
Can I help her pack?
Trump needs to put mirror-images of RBG on the bench, conservative and traditionalist partisans about whom there will never be any doubt concerning which way they will vote, in the same way as there is never any doubt about Breyer, Kagan and Sotomayor. The Court is now a political body that makes law. Until conservatives can correct that reality with constitutional changes, Trump needs to ignore the advice of pen-knife fighters like Richard Epstein and play to win.
My first choices – Ann Coulter and Ben Shapiro, and I would insist on a strict party-line vote on their confirmations (assuming a GOP Senate of course).
Do you want Clarence Thomas to step down? I don’t.
@thereticulator obviously as things are now I wouldn’t but the court is out of control and I think is the reason for the cultural division in country. The fact that every June we sit waiting to hear if our constitutional rights will be upheld. We have now 9 unelected lawyers deciding our fate that is not how it is supposed to be. The legislative branches has given too much of its power to the other two branches
Well, yes, the problem is that the legislative branch has given power away so it can concentrate on porking. We can make do with lifers on the Supreme Court, but we can’t survive with the traitorous and corrupt GOP Establishment.
Ginsburg sees herself as above the Constitution. She knows better than the Founders.
Who cares what the Founders think? They’re just a bunch of irrelevant dead White men. They have been replaced by Upper West Side matrons and Wise Latinas.
(Yes, I’m being sarcastic).
Like all members of the left, Ginsberg sees politics not as a compromise between sides, but, rather, a quest for some holy grail. Leftists are far from relativist when it comes to their “religion”, the tenets of which are absolute and uncompromised. Both she and Obama believe that whatever the means may be, they are justified in the end when their goals are achieved, whether those goals be constitutional or not.
The government is liberal, Democrat, corrupt and rotten to the core. Ginsberg is now showing her true colors just as James Comey showed his. Democrat to the core. Facts, truths, law be damned.
Attention #nevertrumpers!
If Donald Trump is not elected President there will soon be two or three more Ruth Bader Ginsbergs on the Supreme Court. Are you doing all you can to prevent such a calamity?
Some of us prefer “pen-knife fighters” who understand and respect the rule of law to willfully ignorant frauds like the presumptive Republican nominee. Mr. Epstein has been fighting for republican values for decades–I suspect since before you were born.
The right approach is to restore the rule of law and respect for popular sovereignty. Only then can we claim any higher legitimacy than the Left.
Even if Trump is elected, we run that risk. But I’m willing to take my chances that he might pick someone good. We know that Hillary never will.
If Hillary Clinton is elected, the fault will fall squarely on the shoulders of #trumpers, who placed a manifestly unqualified moron at the top of the ticket. We told you we could not and would not support him, but you persisted in your infantile pursuit notwithstanding our warnings.
Comey showed himself to be a man of integrity who refused to use the criminal law as a tool for political ends. Your assault on his character demonstrates your ignorance of the facts of the case or your ignorance of how criminal law should function in a well-ordered society.
Sorry, but if Hillary (or Trump) is elected, the blame will fall squarely on the shoulders of the vile, corrupt GOP establishment.
If Jeb Bush had won the nomination, and many Trumpers decided to stay home, assuring Hillary’s election, would that be your attitude? Fact is Trump won fair and square, which tells you as much about the mainstream candidates and their lack of appeal as it does about Trump.The choice is now between Trump and Hillary. If Hillary wins because people like you stay home, her election can blamed on you and the Never Trumpers. Do you think Hillary supporters would stay home if Bernie won?
I think Bernie supporters will be staying home because Hillary won. As well they should. They recognize that she is venal, dishonest and corrupt. Hillary will win anyway, though, and I will blame Trump and his supporters. He is the only so-called Republican who could have lost to her.
If Comey was a man of integrity, he would not have allowed Mrs. Clinton to stonewall until it got so late in the game as to make it impossible for the ruling not to be political.
If Comey was a man of integrity, he would have resigned when President Obama and AG Lynch started to meddle in the case on behalf of Mrs. Clinton. People in positions like his have been known to do that, and have gone down in history as people of integrity.
If Comey was a man of integrity, he would not have tried to peddle the Clintons’ false meme of “carelessness” to describe behavior that was anything but careless.
If Comey was a man of integrity, he would have interviewed Mrs. Clinton a lot earlier in the game, under oath, and then worked to verify what she had to say. If he was a man of integrity he would not have conducted a potemkin interview that was so obviously intended to signal to everyone that the decision was rigged.
If I disagree with you am I also ignorant? I think at best Comey showed he is a political player – not really a surprise in the head of the FBI – who may, MAY, have been motivated by not wanting to interfere in the democratic process. That is the best gloss on his decision. It goes downhill pretty quickly from there. Had I, when I was at NSA, done what Hillary did, I have zero doubt I would have been making big ones into little ones at a federal resort in Kansas.
THIS.
This is standard procedure in investigations. Get the target committed to a particular story in an early interview, then verify. If Comey had done this Hillary would be under indictment now for lying to the FBI if nothing else. The fact that they didn’t talk to her until all the bad facts had been outed suggests Mr. Galt has been right when he said their was never any chance of there being an indictment.
Paul,
It would seem to me that either Comey is a man of integrity and Hillary is the most ridiculous idiot that has ever held high office in America or Comey is a bought fool who is allowing someone who has committed multiple federal felonies, obstructed justice, and perjured herself before Congress go free without prosecution.
Take your pick.
Regards,
Jim
The problem with your entire line of argument is that Hillary did not set up the email server to send and receive classified information. It has been reported that she set up the server to send and receive work-related, but not classified information, and not one shred of evidence has been publicly released to suggest that she did not use secure means to send and receive classified materials in the normal course. If the email server that Hillary set up was the ONLY method by which she sent and received classified materials, I would agree with you.
If she had not set up a personal email server, but some classified material was sent or received on her non-secure government email account, would you still say she should be prosecuted?
On what are you basing this assertion? It is often the case that a target is not interviewed until the paper investigation and interviews of subjects and witnesses have been completed. There is no “standard procedure” that covers all investigations.
The perjury before Congress is a separate point entirely, and it is conceivable that Hillary could still be prosecuted if Congress refers the matter to the DOJ/FBI. What happened here is that Hillary violated federal recordkeeping laws that do not have federal penalties. Incidental to those recordkeeping violations, some classified material was sent or received in an unsecure manner, but the overwhelming majority of classified information she handled was kept secure. If she sent or received classified information on non-classified government email systems, would you still argue in favor of an indictment?
What establishment is that, exactly? The one Trump is now in bed with? The “GOP establishment” is a fiction.
Your first question is based on a false premise: I have never heard one Trumpkin suggest that Clinton is preferable to Bush, even if Bush was not their first pick.
Trump did not win “fair and square.” He won by looking Republican primary voters in the face and lying. He lied about his own record. He lied about the source of problems in our country, and he lied about the others running for the nomination. I plan to vote for Gary Johnson.
You didn’t answer the question, although you did engage in gratuitous name-calling. Are you a Democrat? That is their modus operandi.
That, and an inflated sense of their own self-importance.