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January 22nd, 2017

Insight

Justice Ginsburg Goes Rogue

Bernard Goldberg

By Bernard Goldberg

Published July 14, 2016

I'm assuming Supreme Court Justice Ruth Bader-Ginsburg is a smart woman. You don't get to sit on the highest court in the land if you don't have more than a little intelligence. So the best I can come up with to explain her unprofessional, unethical and just plain dumb behavior of the past week is that she must have missed social studies class in junior high the day they discussed the three branches of government.

You remember how our system of government works: The president is at the head of the executive branch. Congress handles legislation. And the federal courts make up the judicial branch, the one that interprets the law and makes decisions after hearing competing arguments.

Pretty simple, right? But not for Justice Ginsburg, who apparently doesn't understand how the system works — or else she wouldn't be giving interviews that make her sound not like an impartial judge, but rather like someone campaigning for Hillary Clinton.

Last week, in an interview with the New York Times, Justice Ginsburg said this:

"I can't imagine what this place would be - I can't imagine what the country would be - with Donald Trump as our president."

Supreme Court Justices usually don't give interviews - unless they're trying to sell a book they just wrote. But Ruth Bader-Ginsburg prides herself on speaking her mind, so she went on. "For the country, it could be four years. For the court, it could be - I don't even want to contemplate that."

In another interview, this one with the Associated Press, she said that she assumed that Hillary Clinton would win the election in November.

What would happen, she was asked, if Donald Trump won instead. "I don't want to think about that possibility, but if it should be, then everything is up for grabs."

Justice Ginsburg, in case you're interested, was nominated to the court in 1993 - by Hillary's husband, then President Bill Clinton.

You might cut Justice Ginsburg some slack. She's 83 years old and maybe her comments last week were the result of what they euphemistically call "a senior moment." But if you thought that you'd be wrong. Her shot at Donald Trump was no unguarded moment. Because this week she did it again - this time calling Trump a "faker," and adding for good measure that she was surprised the news media haven't pushed him harder to release his tax returns.

In response - and you just knew there'd be a response — Trump told a New York Times reporter that Ginsburg's comments were "highly inappropriate" and then took to Twitter to say: "Her mind is shot - resign!"

Even the New York Times, which is no fan of Donald Trump, editorialized that the good justice should knock it off. “Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling,” the Times said. She also got slammed by judicial ethics experts and politicians and pundits from both the right and the left. What if Trump wins and legislation he helped push through Congress winds up at the Supreme Court? How could Justice Ginsburg possibly be fair? Wouldn't she have to recuse herself?

Josh Blackman, a Law professor at Houston College who writes about the Supreme Court put it this way: "The other Justices should hold an intervention, and tell her to be quiet or step down," he said.

But before we demand an apology, an explanation or the "death penalty" for Justice Ginsburg, maybe we should thank her for being so open about her politics - while her colleagues on the High Court, many of whom are just as partisan, are cautious enough not to make it so obvious.

I have long believed that when it comes to hot button social issues, the Justices on the High Court often make decisions based on how they feel politically - the Constitution only comes into it later on.

So if they're pro-choice, they'll come down on that side of the issue; if they're pro-life, they rule that way. If they're against same-sex marriage, they won’t find any basis for allowing it in the Constitution; if they're for it, the other way around.

Then, and only then, I believe they find in the Constitution whatever they need to justify what was not really a legal decision they had arrived at - but a political one.

As discouraging as that might be, there may be some good news in this fiasco after all. In the Times interview, Justice Ginsburg pulled out that tattered cliché about packing your bags and leaving the country if the "wrong" candidate wins. You know how liberals said they'd move to Canada if Bush won; or how the hard right said they'd leave the country if Obama won. For Ruth Bader- Ginsburg, moving to Canada isn't nearly going far enough. She recalled for the Times something her late husband said about such matters: “Now it's time for us to move to New Zealand.”

Good idea, Justice Ginsburg. I've been there. Nice people. Beautiful country. You'll love it. Safe travels.

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