Wednesday, July 13, 2016

Justice Ginsburg crosses a line in attack on Trump

Justice Ginsburg and Donald Trump

Most of my colleagues on the New Jersey Law Journal Editorial Board has long concurred with the Supreme Court’s decision that the Code of Conduct for United States Judges does not bind the nine justices.  Chief Justice John Roberts and others have said it informs but does not control their decisions.  There is therefore no rule violation when Ruth Ginsburg, contrary to Canon 5 of the Code, declares that Donald J.Trump is a “faker” and makes other deprecatory remarks about the GOP nominee for President.

As Speaker of the House Paul Ryan has said Trump is a “different kind of candidate”.  Each of us can fill in the blanks with her own view of what makes Trump different - but that he is “different” is not denied anywhere on the spectrum.  But Associate Justice Ginsburg would do better not to embrace the need to respond differently to the Trump candidacy.  She would do better to adhere to the Canon which provides “(A) General Prohibitions. A judge should not:  (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office”.

I understand the alarm with which Ginsburg views the candidate.  And I recognize that  by his embrace of the late Justice Antonin Scalia the candidate has incorporated the composition of the Supreme Court into the race.  The Senate Majority leader’s refusal to consider the nomination of Circuit Judge Merrick Garland until after the election has imported the issue of the Court’s composition into every race for federal office this year.  We know that the law is not a catalog of commands.  That policy and values infuse views of the meaning of the grand generalities such as equal protection, privacy, and religious freedom.  The courts are key players in defining such terms.  But we also recognize that a certain remove from the fray is a judicial virtue. Though words spoken cannot be retrieved, Justice Ginsburg would be well advised to step back and avoid any further intervention in the electoral contest.

- George Conk  
July 13, 2016

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