June 3rd, 2017

Why Ruth Bader Ginsburg should be voting in favor of Trump’s travel ban EO

The Supreme Court is about to render judgment on the 4th Circuit’s upholding of an injunction against Trump travel ban EO. Professor Jacobson at Legal Insurrection suggests that, based on her prior remarks about Trump, Justice Ginsburg ought to be considering recusing herself:

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”.

Professor Jacobson goes on to cite many other instances in which Ginsburg criticized Trump in no uncertain terms. She received negative press for this and finally stopped the practice, but her anti-Trump words are on record and they are quite unusual for a Justice of the Supreme Court.

Jacobson adds:

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.

I remember the incidents, and I criticized her for them at the time. But just now, when I read the Ginsburg quotes in Professor Jacobson’s LI post, one in particular struck me as especially relevant to the current travel ban EO case. Here’s the Ginsburg quote:

“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.”

In the travel ban cases, judges have cited Trump’s prior statements about wanting a Muslim ban and used those statements of Trump’s to invalidate his later travel ban on the basis of the earlier utterances, which they feel were motivated by religious animus towards Muslims. Aside from the rather dubious legal reasoning involved, this sort of judgment implies that Trump’s prior statements were the real ones, expressing his deepest feelings and the wellspring of his later EO, and that he’d merely learned to hide them.

But if we look at Ginsburg’s prior statement—the one I just quoted—it’s clear that she should be throwing out Trump’s “Muslim ban” campaign statements as worthless and meaningless, and evaluating his travel EO strictly on its own words. In other words, if Ginsburg believes that Trump is a “faker, has no consistency, and says whatever comes into his head at the moment,” then she would have no way to determine that his Muslim ban statements meant anything more than anything else he has said, before or since, and they must be discarded and the travel EO evaluated on its face only.

I don’t for a moment think Ginsburg will recuse herself from this case. And I don’t think for a moment that she’ll follow the line of reasoning I’ve just presented and rule in favor of allowing Trump’s EO to stand. But I think logic indicates that, if she does rule on the case, she should not take Trump’s prior Muslim ban statements (or any other prior statements of his) into consideration at all.

6 Responses to “Why Ruth Bader Ginsburg should be voting in favor of Trump’s travel ban EO”

  1. vanderleun Says:

    Time for admiration of this justice to go to the grave before her.

  2. Cornhead Says:

    DOJ will need to make a motion for her to recuse herself citing all of her statements. She will then, of course, deny it. In a halfway decent world, all fair-minded people should condemn her for the fake Justice that she is.

  3. Geoffrey Britain Says:

    Yes, Ginsburg should recuse herself for the reasons cited. If she does not recuse herself she either rules in favor of Trump’s entirely legal travel ban or reveals herself to be what she has accused Trump of being… a faker.

    In which case she must resign or confirm herself to be a fake, thus demonstrating her unfitness for the office she holds.

    Her hubris has finally manuevered her into a position from which she cannot escape. Not that she’ll be held to account. But the truth will have outed itself.

  4. Frog Says:

    Why should recusal come from oneself??
    Recusal is a holdover from a former era of higher ethical standards.

  5. T Says:

    Over at LegalInsurrection, Olinser noted (@5:15 am) that Ginsberg’s vote is superfluous anyway.

    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.

    Perhaps the real question is, given her stated antipathy to Trump, should she be party to any discussion or arguments about staying the injunction?

    Link:

    http://legalinsurrection.com/2017/06/how-can-ginsburg-participate-in-travel-order-case-after-her-campaign-statements-about-trump/

  6. n.n Says:

    It’s not a ban. It’s a delay proportional to foreign government competence to provide character witnesses. Despite the liberals’ Pro-Choice religious/moral/legal philosophy, principles do matter, and are skilled predictors of character.

    They really need to lose their Pro-Choice religion and [class] diversity doctrine that judges people by the “color of their skin”.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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