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How can Ginsburg participate in Travel Order case after her statements about Trump?

How can Ginsburg participate in Travel Order case after her statements about Trump?

July 2016: “He is a faker”

Donald Trump’s second Executive Order on visa entry from six majority Muslim countries is now before the Supreme Court.

Trump is seeking review of the 4th Circuit’s decision upholding a Maryland District Court injunction halting the Executive Order. In addition to the Petition for  a Writ of Certiorari asking SCOTUS to hear the case on the merits, Trump has a request for a stay of the lower court injunctions pending a decision on the merits. The application is on a fast track, with the Court setting June 12 as the deadline for opposition papers.

The 4th Circuit’s decision found that the Executive Order, though facially neutral, “in context drips with religious intolerance, animus, and discrimination” and that context was “a backdrop of public statements by the President and his advisors and representatives at different points in time, both before and after the election and President Trump’s assumption of office.”

Those statements, including by Trump himself, the 4th Circuit concluded:

… creates a compelling case that EO-2’s primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States….

As a candidate, Trump also suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion….

These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly….

EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.

The 4th Circuit decision has been widely criticized for its reliance on campaign statements, as well as for substituting judicial security evaluations for those of the executive branch.

This case, unlike other more mundane cases involving Trump policies that may come before the court, clearly places Donald Trump’s words, personality and credibility in issue.

One of the Justices already has expressed a view on Trump’s credibility. In July 2016, Justice Ruth Bader Ginbsburg was quoted in a CNN interview deriding Trump as “a faker”:

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.”
That July 2016 CNN lashing of Trump was not a one-off. Justice Ginsburg made two other negative public statements about Trump during the campaign (via Politifact):

Interview July 7, 2016 with Associated Press

Asked what if Trump won the presidency, Ginsburg said: “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.”

Interview July 8, 2016 with New York Times

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.

Referring to something she thought her late husband, tax lawyer Martin Ginsburg, would have said, she said: “Now it’s time for us to move to New Zealand.”

Justice Ginsburg came under heavy criticism from a wide spectrum of commentators, since it is unusual for a Supreme Court Justice to express views on a political candidate and campaign. Even the Editorial Board of the NY Times agreed that Justice Ginsburg’s comments were inappropriate, Donald Trump Is Right About Justice Ruth Bader Ginsburg:

Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling.

Three times in the past week, Justice Ginsburg has publicly discussed her view of the presidential race, in the sharpest terms….

There is no legal requirement that Supreme Court justices refrain from commenting on a presidential campaign. But Justice Ginsburg’s comments show why their tradition has been to keep silent.

In this election cycle in particular, the potential of a new president to affect the balance of the court has taken on great importance, with the vacancy left by the death of Justice Antonin Scalia. As Justice Ginsburg pointed out, other justices are nearing an age when retirement would not be surprising. That makes it vital that the court remain outside the presidential process. And just imagine if this were 2000 and the resolution of the election depended on a Supreme Court decision. Could anyone now argue with a straight face that Justice Ginsburg’s only guide would be the law?
The Washington Post editorial board also was critical of Justice Ginsburg’s comments, Justice Ginsburg’s inappropriate comments on Donald Trump:
However valid her comments may have been, though, and however in keeping with her known political bent, they were still much, much better left unsaid by a member of the Supreme Court. There’s a good reason the Code of Conduct for United States Judges flatly states that a “judge should not . . . publicly endorse or oppose a candidate for public office.” Politicization, real or perceived, undermines public faith in the impartiality of the courts. No doubt this restriction requires judges, and justices, to muzzle themselves and, to a certain extent, to pretend they either do or do not think various things that they obviously do or do not believe. As the saying goes, however, “hypocrisy is the compliment vice pays to virtue.”
As journalists, we generally favor more openness and disclosure from public figures rather than less. Yet Justice Ginsburg’s off-the-cuff remarks about the campaign fall into that limited category of candor that we can’t admire, because it’s inconsistent with her function in our democratic system….
Justice Ginsburg didn’t quite apologize, but did say she regretted the comments:

“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.”

Later Thursday in an interview with NPR, Ginsburg described her remarks as “incautious.”

“I said something I should not have said,” she remarked. When NPR’s Nina Totenberg asked her “if she just goofed,” Ginsburg responded: “I would say yes to your question, and that’s why I gave the statement. I did something I should not have done. It’s over and done with and I don’t want to discuss it anymore.”

Justice Ginsburg’s negative comments about Trump, though less direct, continued after inauguration. On February 24, 2017, the Washington Post reported:

Supreme Court Justice Ruth Bader Ginsburg, a noted critic of President Trump, suggested that she doesn’t believe the country is in good hands but said she is hopeful about the future.

“We’re not experiencing the best of times,” Ginsburg said Thursday on BBC’s “Newsnight,” though she did not comment directly about the president.

In a case in which Trump’s campaign comments are front and center, how can Ginsburg hear a case in which she has complained publicly about Trump and Trump’s campaign?

This is not a situation where a Justice merely is presumed to have political leanings (don’t they all?), or is affiliated with one political party more than another. Justice Ginsburg has publicly questioned Trump’s credibility, and that credibility is an issue in the case as it presents itself in the 4th Circuit decision from which review is sought.

Justice Ginsburg cannot be removed from the case. The judicial code cited by the Washington Post editorial doesn’t apply to Supreme Court Justices. She would have to recuse herself voluntarily.

I don’t expect Justice Ginsburg to recuse herself. But her *campaign* comments about Trump’s campaign look even worse in hindsight.


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Imagine the fireworks when this nasty old goat chokes on her hubris, dies and is replaced by a conservative. It’s going to be epic.

Because rules don’t apply to liberals

    The Friendly Grizzly in reply to gonzotx. | June 3, 2017 at 12:59 am

    From what I’ve seen over the past few decades, rules don’t apply to black-robed deities, aka “judges”, either.

    Observer in reply to gonzotx. | June 3, 2017 at 11:46 am

    That’s right.

    As Obama’s Solicitor General, Elena Kagan was involved in creating the administration’s legal strategies for defending Obamacare, yet she refused to recuse herself when the case challenging Obamacare came before the Supreme Court.

    It was a gross violation of legal ethics, but nobody in the media said boo about it.

      Milhouse in reply to Observer. | June 4, 2017 at 12:19 am

      As Obama’s Solicitor General, Elena Kagan was involved in creating the administration’s legal strategies for defending Obamacare,

      So you may believe, but you can’t prove it, and she explicitly denied it.

Perhaps others can inform me. I know that there are rules on when federal judges must/should recuse themselves. When Kagan came to the bench in 2010, she had been the Solicitor General. Cases were in the Court’s then pipeline in which the Solicitor General, meaning Kagan herself, had been involved. I remember discussions that recusal for a USSC judge was discretionary with the individual judge.

Is this true? That person can decide whether to recuse or not, a decision not subject to any other review?

Bader was from the outset a terrible choice for a justice. Now, with this travel EO stuff, she has the chance to deliver even more poison to the system.

She will decide the case is too important to recuse herself.

She will render her decision in coordination with Justice Kagan and a half gallon of Merlot.

The answer is simple. If Ginsburg doesn’t recuse herself, then neither should Gorsuch.

We really don’t want Ginsburg to recuse herself. Kagen and Sotamayor might vote against Trump, but if it is clear that Trump is going to win, I think Ginsburg and Breyer will side with Trump for the sake of precedent.

After Sotomeyer did not recuse over Obamacare…
What might lead you to expect a recuse now?
Look, it is a one way street.

    Joe-dallas in reply to snowshooze. | June 3, 2017 at 7:57 am

    It was kagan who did not recuse in the obamacare case, Not sotomayer

    MaggotAtBroadAndWall in reply to snowshooze. | June 3, 2017 at 8:59 am

    You misread the penultimate sentence. He does not think she will recuse herself. He lays out the case for why she maybe should.

    Milhouse in reply to snowshooze. | June 4, 2017 at 12:29 am

    You mean Kagan, but she gave a valid (if true) reason: She claimed to have kept herself away from any discussion of potential defenses for the act, precisely so she wouldn’t have to recuse herself if she ended up on the court. There is no way for us to know whether she was telling the truth, but if so then she did the right thing in not recusing herself.

42 years of jury trials taught me that liberal oriented potential jurors frequently lied, claiming no bias, to get on juries to do their thing. Conservative potential jurors tended to truthfully admit a bias, even if a teeny bias, which resulted in them being excluded.
This flaming liberal is unaccountable to anyone except her flaming liberal constituency. It’s not hard to guess what she won’t do.

    Old0311 in reply to Rick. | June 3, 2017 at 10:09 am

    You should try being in the jury room with them.

    Jackie in reply to Rick. | June 4, 2017 at 6:11 am

    An example of that was the Zimmerman trial where a far left wing nut posted stuff on Facebook stating Zimmerman was guilty. When interviewed in court he said he had no opinion. Fortunately the Defense had his Facebook quotes.

Subotai Bahadur | June 2, 2017 at 11:25 pm

1) in reality, not theory, judges cannot be held to the law or the Constitution. They are immune from consequences.
2) a Democrat or other Leftist judge is not only immune from the law and Constitution, they are expected to attack them at every opportunity and of course they are immune from any consequences.
3) she will use her power to try to overthrow Trump.

There are judges today who would have blocked Jefferson from attacking the Barbary pirates because they were Muslims (“Musselmen”, as they were called then). It would be obvious to them that Mr. Jefferson wanted to attack them because they were Muslims, and not because they were preying upon American merchant vessels.

The simple answer is she can’t. But since when has that ever stopped a liberal??

This is why conservatives have to grow a set if bollocks and start doing to liberals what they are doing to everyone else on a daily basis!!!

She should be forced to recuse herself.

HOWEVER, in this case it won’t matter.

There is literally no scenario where her vote actually matters.

If it was going to be 5-4 with her, then without her its 4-4, and the lower court decision stands.

Any other vote count simply changes how big a majority wins the decision.

She’s a crazy, demented old bag, but her vote matters absolutely not at all.

Bucky Barkingham | June 3, 2017 at 7:36 am

RBG will continue the Liberal destruction of the formerly most respected branch of the US government.

This reasoning implies that RBG should recuse herself from any case which involves Trump.

Which is fine by me, but I can’t see her—or any of the SCOTUS judges—being willing to go that far.

    Milhouse in reply to tom swift. | June 4, 2017 at 12:32 am

    No, it only implies she should recuse herself from cases involving Trump’s character, such as this one. Cases in which he’s a party merely because he’s the president, and if there were to be a new president the case would go on with the new president’s name substituted for his, she could still sit on.

“She would have to recuse herself voluntarily.”

Could she be persuaded to do so by public outcry? Once her anti-Trump comments were criticized by all for being inappropriate for a SC judge, she acknowledged the criticism and agreed that she had acted inappropriately. A little more public outcry might do the trick.

She might even decide to retire now rather than risk becoming THE historical example to be forever cited when making the point for why it is important for SC judges to refrain from partisan political speech.

    I forgot to add that she can’t just let this hang were there to be public outcry. There is a legal point of historical importance that needs to be addressed. She must at least say something to address the conflict of interest and repeating that she regrets having participated in the political process by uttering her partisan political comments doesn’t go far enough. She is now in the position where the only way she could prove that she was impartial is to vote to overturn the lower court decision. But then the liberals would argue that she caved for personal reasons. She is a no-win position. She needs to recuse herself and hope it is overturned on a 5-3 vote.

Chief Justice John Roberts has a job to do and he had better measure up and convince RBG to recuse or what little credibility that the Supreme Court still maintains will be lost. It is way past time for Congress to also do their job in directing the Federal court system.

Way too much can-kicking and rear-covering going on here.

    creeper in reply to OldNuc. | June 4, 2017 at 9:30 am

    Nuts. Thought I could read through this thread without having to log in. Then you made me do it just to up-arrow your comment.

The Marxists can relax.

Either Kennedy applies his feelz to the deliberations and empathizes with the poor Muslim refugees yearning to escape their third-world hell-holes and bring Sharia, genital mutilation and honor killings here, or Roberts does his patented Transmogrification Two-Step, ruling that denying our Constitutional rights to these non-citizens would actually be a non-monetary tax on entry akin to a poll tax, and therefore unconstitutional per SCOTUS precedent.

I often ask the leftists on blogs where the Democrat Souter/O’Connor/Kennedy/Stevens/Roberts/Warren is, you know, the one that will reliably betray their party’s principles (such as they are at any given moment) on every key issue.

12 years later, still nothing but crickets.

The judicial code cited by the Washington Post editorial doesn’t apply to Supreme Court Justices
thats because the 9 scorpions have free rein to do whatever they want.

Ruth Vader Ginsberg determines her vote to a case long before she ever actually hears it. And her vote will almost always be whatever the Democrats need it to be.

Constitutional crisis and civil war coming at us, you heard it here first.

If the people who elected Trump are thwarted in this fashion there will be violence. It will start small, then explode.

I don’t get it. The code of ethics for “federal” judges doesn’t include the justices? Is that because the code explicitly exempts the justices, or is it because they themselves “interpreted” it to exclude them?

    Milhouse in reply to MickeyD. | June 4, 2017 at 12:42 am

    This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code.”

    It has to be that way, because the Judicial Conference, which created the code, has no authority over the Supreme Court. “Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body”.

Ginsburg has done more than any other justice to undermine public confidence in the impartiality of that court. She is so lawless and reckless in her public comments that she doesn’t even care to avoid the APPEARANCE of bias. It’s shameful but she is shameless. The day she leaves the court, hopefully to be replaced by someone with ethics and integrity, will be a day to celebrate.

Neither newspaper wanted to address the elephant in the room: Ginzberg is failing physically, and with that physical failure, has become senile. She no longer has the perspective to recognize that political enemies of the President might be inclined to exaggerate or even *gasp* lie about what he said. She also no longer has the self control to exercise the public discretion expected of a justice.

Her case is reminiscent to that of Helen Thomas, who had a long career but failed to retire before she had managed to embarrass herself and everyone around her.

Please sign this petition demanding Ruth Bader Ginsburg recuse herself from the travel ban case:

Not anymore – not since The Donald took office.

SaltyDonnie | June 3, 2017 at 6:32 pm

Trump should call her out – The Notorious RBG recuses or he disregards the SCOTUS decision.

    Blueshot in reply to SaltyDonnie. | June 4, 2017 at 8:54 pm

    And if SCOTUS rules in Trump’s favor? Than what?

    There is a high chance the court will rule in his favor since he is actually following the law unlike the Federal Judges in California and Hawaii. Why jinx it?

Trump should demand that she recuse herself and when she doesn’t he should announce that he will not be bound by any 5-4 decision in which she is in the majority.

The vote will be 7-2 in favor of Trump. Who knows, maybe the liberal judges will have an–albeit temporary–attack of common sense, and that would make it unanimous. Can’t happen, you say? There were a handful of High Court decisions made in the year before Scalia was eliminated…that had at their core the conservative vs. liberal issue and went unanimously for the right.

Imagine a protected phone call between Obama and the lovely Susan Rice, “Hey gal, plug in that thumb drive into your PC of the unmasked data you reviewed and saved….yeh that data..I know the heat’s on but don’t worry I’ve got your back, and search for any dirt on the four supremes who would support the Donald’s immigration enforcement argument before the SC and include middle of the roader Kennedy as well, and I’ll take it from there….yeah just like the ACA caper…..and remember God Bless America”….

Just like Kagan and Sotomayor, Ginsburg has publicly demonstrated her political beliefs. The extent of her “dislike” for President Trump and the public impugning of his integrity by someone in her position morally obligates her to recuse herself. She won’t.

I would humbly suggest that no campaign statements be used in the determination of the constitutionality of the Travel Ban. That would include who should recuse themselves.