It has been a rough few weeks around the globe for those
who are committed or aspire to defend and uphold justice. Amidst escalating international
terrorist attacks and domestic mass shootings, the US is heading into a
presidential election cycle with two candidates who – if polls can be believed –
are both “historically unpopular” among voters. This seems to be contributing
to deepening political polarization in the country, and a bubbling up of
partisanship in unfortunate places. Including, most recently, from Supreme
Court justices.
Sidebar 1: Recent
polling which portends to analyze voter sentiment and predict outcomes on both
referendums (e.g. Brexit) and candidates (e.g. the nomination of Donald Trump)
has been widely criticized by many; and
defended as accurate, though subject to misinterpretation, by some. Political
theory being perhaps as subject to revision as economic theory, there is now an
entire meme among political scientists and professional pollsters dedicated to
understanding (or explaining away) how they misjudged the rise of Donald Trump.
Sidebar 2: “Historically
unpopular” might be a little overstated by the media, since history in this
context begins in 1936. The first modern presidential polling was conducted by
George Gallup (natch) who used a statistical random sampling of voters. Prior
to Gallup, polling was often done by magazines who simply surveyed their own
subscribers. Not surprisingly, their “projections” were similar to those you
might expect the National Review or Slate would produce if they conducted
such polls of their readers.
Ginsburg Weighs in
on Presidential Campaign
In a disturbing ethical lapse, Supreme Court Justice Ruth
Bader Ginsburg damaged her own reputation, and that of the independence of the Supreme
Court, when she unwisely remarked on the presidential candidates in a series of
three media interviews.
Excerpts from a July 8th, 2016 article by Mark
Sherman of the Associated Press, Ginsburg
doesn't want to envision a Trump win, following an interview with Justice
Ginsburg (emphasis added):
In an interview Thursday in her court
office, the 83-year-old justice and leader of the court's liberal wing said she
presumes Democrat Hillary Clinton will be the next president. Asked what if Republican Donald Trump won
instead, she said, "I don't want to
think about that possibility, but if it should be, then everything is up for
grabs."
"It's likely that the next president, whoever she will
be, will have a few appointments to make,"
Ginsburg said, smiling.
Excerpts from a July 10th, 2016 article in the
New York Times by Adam Liptak, Ruth
Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term, following an
interview with Justice Ginsburg (emphasis added):
“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.”
It reminded her of something her husband,
Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said. “
‘Now it’s time for us to move to New
Zealand,’ “ Justice Ginsburg said, smiling ruefully.
Excerpts from a July 13th, 2016 CNN interview
with Joan Biskupic, recapped in article Justice
Ruth Bader Ginsburg calls Trump a 'faker', he says she should resign
(emphasis added):
Supreme Court Justice Ruth Bader Ginsburg's well-known candor
was on display in her chambers late Monday, when she declined to retreat from
her earlier criticism of Donald Trump and even elaborated on it.
"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."
"At
first I thought it was funny,"
she said of Trump's early candidacy. "To
think that there's a possibility that he could be president ... " Her
voice trailed off gloomily.
"I
think he has gotten so much free publicity," she added, drawing a contrast between what she believes
is tougher media treatment of Democratic candidate Hillary Clinton and
returning to an overriding complaint: "Every other presidential candidate has turned over tax returns.”
While some in the media praised Ginsburg for her “characteristic
candor,” legal analysts and court watchers across the ideological spectrum were
less glib. The accepted reality that Supreme Court justices have ideological
leanings and strongly held beliefs crashed headlong into:
1.
The separation of powers between the executive
and judicial branch;
2.
The presumption that judges should not only be
independent and impartial; but also,
3.
Judges should maintain the appearance of being
politically impartial to defend the credibility of the Court.
By July 14th, 2016, Ginsburg issued an apology
for her remarks via a Supreme Court press release (which I cannot currently
find on their website, but will link to it if I do). It is recapped in CNN
article by Ariane de Vogue, Ruth
Bader Ginsburg: "I regret making" Donald Trump remarks, excerpted
below:
"On
reflection, my recent remarks in response to press inquiries were ill-advised
and I regret making them," Ginsburg said in a statement. "Judges should avoid commenting on a
candidate for public office. In the future I will be more circumspect."
Hours after releasing the statement Ginsburg
talked exclusively to NPR's Nina Totenberg, and expanded upon her statement.
She called her comments "incautious."
"I did something I should not have done,"
she added. "It's over and done with and I don't want to discuss it
anymore."
Ginsburg's criticism had caused controversy
not only in political circles but also among legal ethicists who suggested
Wednesday that if the current election were ever to come down to a Bush v.
Gore-like challenge, Ginsburg would have to recuse herself.
"A federal law requires all federal
judges, including the justices, to recuse themselves if their 'impartiality
might reasonably be questioned'," said Stephen Gillers, a legal ethicist
at New York University School of Law. "Under this test, Justice Ginsburg's
remarks would prevent her from sitting in the unlikely event of a 'Clinton v.
Trump' case that determines the next president."
“You’re Splitting Ideological Hairs”
No. Ruth Marcus in the Washington Post makes the case
more persuasively than I can. In an excellent,
and at points ironic and hilariously partisan column, Justice
Ginsburg's damage to the Supreme Court, Marcus distinguishes between
ideology and partisan politics (excerpted, edited for brevity):
It is naive to imagine that justices don’t
have political views, or strong political preferences. Of course they do. It is
the rare justice who ends up on the court without having ties to politics and
politicians.
But there is a difference — a big one —
between having a preexisting political relationship or predilection that the
public might reasonably presume (no one would mistake Ginsburg for a potential
Trump voter) and one that is so strongly held that the justice feels impelled
to make it public.
That
approach is not mere window-dressing. Judicial silence is the tribute that the
imperative to appear impartial pays to reality.
Some
people will read this and snort: The justices are political animals like all
the others; they decide based on their political views, not on the law.
This dismissiveness ignores and obscures
the distinction between ideology and partisanship. Broadly speaking,
Republicans and Democrats have differing conceptions of the role of the
judiciary, the meaning of the Constitution and the proper approach to its interpretation.
It is no surprise, and no tragedy, that judges appointed by Republican
presidents tend toward one set of reasonably predictable conclusions and those
named by Democratic presidents another.
Ginsburg’s remarks — like
Scalia’s duck-hunting — present a problem, and not just for her. They drag the
court down to the level of other political actors, into the partisan muck. They
reinforce the public’s perception that this game, too, is rigged — more than it
actually is.
Definitions, provided by Google, for my own reference - because
I wanted to make sure I understood and agreed with the distinction Marcus and
other legal analysts have made.
ideology – a system of
ideas and ideals, especially one that forms the basis of economic or political
theory and policy.
partisan – an adherent or
supporter of a person, group, party or cause, especially a person who shows a
biased, emotional allegiance. In politics, a partisan is a person who strongly
supports their party’s policies and are reluctant to compromise with their
political opponents.
partisanship – prejudice in
favor of a particular cause; bias. “An act of blatant political partisanship.”
Thou (Federal Judges) Shalt Not
Campaign for Politicians
The Code
of Conduct for United States Judges spells out the ethical standards for
federal judges. The Code was initially adopted by the Judicial Conference in
1973. Canon 5 of the Code reads as follows (emphasis added):
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.
The Code of Conduct applies to all lower court federal judges.
The Supreme Court justices voluntarily follow the principles outlined in the
Code of Conduct, but are not obligated to obey them. There are occasionally calls
for the justices to adopt a formal code of ethics. Such controversies typically
arise when a group or members of Congress want a Supreme Court justice to
recuse him or herself from a particular case, though Ginsburg’s remarks have
raised the issue in this different context.
“What did you
think of Sotomayor’s ‘black lives matter’ dissent in Utah v Strieff?”
If you haven’t yet read about this case and the court’s
opinion, please do. There are many excellent articles covering the case – read
at least one on each side. I also highly recommend reading on The Federalist Society website the
article Utah
v Strieff: Fourth Amendment Rights Without Remedies and the Problem of Arbitrary
Police Power, by Evan Bernick.
I’m not enough of a legal scholar to truly parse the constitutional
merits of the case. I’m still in the phase of reading the law community’s
response to the majority’s decision and the dissents (as opposed to the media’s
response) so I can adequately understand the historical context of Fourth
Amendment rulings, the current legal context, and the potential ramifications.
All that being said, I did read the majority opinion
(5-3) written by Clarence Thomas and Sotomayor’s dissent. (I have not yet read
Elena Kagan’s dissent.) I am deeply uncomfortable with the decision - which
continues to erode the rights of citizens subjected to search and seizure
without reasonable suspicion of unlawful conduct – and the majority’s
rationale. I found myself in agreement with the initial sections of Sotomayor’s
dissent, and at points cheering her on – while at the same time feeling like
she later badly and needlessly overstepped the legal arguments (which were
clearly strong) in favor of cultural and political partisanship. Which brings
me back to concerns about justice, and the difference between having a
well-structured and informed ideology versus a blatant partisan bias. It
undermines the legal argument and impairs both actual and perceived
impartiality.
But those are only my opinions, and they are admittedly
not yet well-developed.
The Irony and the Rednecks
Please look past the association of country music with
southern rednecks (North Carolina, represent!) or at least appreciate the irony of what I am about to quote:
You know justice is the one thing you should always find
You got to saddle up your boys, you got to draw a hard line
When the gun smoke settles we'll sing a victory tune
And we'll all meet back at the local saloon
And we'll raise up our glasses against evil forces singing
Whiskey for my men, beer for my horses.
Excerpted lyrics from Beer
for My Horses, by Toby Keith
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