In an Age of Animus, The Ginsburg Standard Matters

This is interesting. As the Southern border becomes the focus of even more speculation with Sunday’s election of Lopez Obrador in Mexico, we have a view of another key part of Trump’s foreign policy agenda (yes, his plans for border security are a de facto foreign policy because they involve immigration and a neighboring country). His travel ban. Law professor Mike Rappaport at brings up an inconvenient observation about Justice Ginsburg and her relationship to said travel ban.

The whole challenge against the travel ban - as stated by the plaintiffs in at least one of the several jurisdictions where it was challenged - was based on the fact that it was President Trump's travel ban, and not on the constitutional validity of the executive branch's authority to issue the ban itself. And this revolved - mistakenly as has been decided - around the idea of Trump's animus as reflected by some of his campaign declarations.

But there's another animus that was not taken into consideration: that of Justice Ginsburg as demonstrated by her comments on the possibility of a Trump victory during the 2016 campaign. She issued an apology for those comments - which were a little theatrical and obviously negative - and stated the following:

On reflection, my recent remarks in response to press inquiries were ill-advised, and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.

Does this mean that, as Rappaport suggests, that Justice Ginsburg (who ruled against the travel ban because of Trump's "animus"), should have recused herself from that case? Did her panic over the possibility of President Trump actually becoming the 45th occupant of the White House cause her to publicly display her hostility?

Or, in fact, should we or are we leaving aside the notion that justice can be impartial in any shape or form? And that Ginsburg was fine to declare her opposition to Trump? And as a consequence, the Ginsburg standard - established in the 90's as a result of her refusal to answer how she would rule on any issue during her confirmation hearings - should be abandoned by nominees appearing before the Senate in response to questions on how she or he would rule on any attempt to overturn Roe v. Wade?

Is the suspect neutrality of Justices (or judges at any level) a bug or a feature of America's judiciary? As judicial power continues to expand - if not as rapidly as the administrative state's power - and as national injunctions become an increasing fact that allow a single district judge to provide a remedy on an issue across the nation, is the legal system fracturing under the cultural and political divisions of the age?

Because if that is indeed the case, then everything becomes animus. You nominate and, if possible, confirm Justices that you are reasonably certain will rule the way you want them to on litmus-test issues. You district shop to present a case to a district judge that you hope will issue an injunction that supersedes the legislative branch's laws or the executive branch's orders. You get as nasty and personal as possible with a nominee whose rulings and philosophy you disagree with.

Oh wait. Kinda been happening for a while already, hasn't it?

What to do then? Mass recusals a la AG Sessions? Or even more partisan trench warfare? Or a recognition of the wonderful guide that the constitution has been, for close to 2 and a half centuries. But of course, nowadays that's a partisan viewpoint, according to many.

Ginsburg was wrong to have spoken out on Trump and wrong not to have recused herself in the travel ban case. But her standard for confirmation hearings is right, and desperately needed right now. Especially when it's a nominee you can't stand.

Posted by Keeley at July 5, 2018 12:19 PM
Comment #428716

Tramp’s animus is exhibited most in his bullying behaviour, which has translated into attacks on American and immigrant children.

AMLO’s election is the result of right wing racism coming to the fore north of the border. Congratulations!

The travel ban was never intended to apply to any country in which the traitor does business or hopes to do business.

This crook hopes to appoint a judge sympathetic to criminals such as himself. Amy Coney Barrett may be appointed in the attempt to gerrymander an all Catholic SCOTUS. This “handmaid” is apparently opposed to the death penalty, which may be a big selling point for a traitor.

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That’s almost as dumb as attacking kids for wearing a hat you don’t like.

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