Should Justice Ruth Bader Ginsburg be able to say whatever she wants about politics – or have her dismissive comments about Donald Trump damaged the standing of the Supreme Court?
Whatever you think about the answer to that question, it’s clear that the sudden feud between the justice popularly known as Notorious RBG and the presumptive Republican nominee has produced another lurch downward in Campaign 2016. The real possibility of Mr. Trump sitting in the Oval Office seems to have driven otherwise circumspect authorities – from Justice Ginsburg to historian David McCullough – to comments they would (or should) normally keep to themselves.
“This 2016 campaign has eroded many of the norms of our politics, whether it was Trump earlier attacking a federal judge overseeing a lawsuit against him; Trump and Clinton not congratulating each other for winning their respective nominating races; or Bernie Sanders still not technically conceding to Hillary Clinton,” write Chuck Todd, Mark Murray, and Carrie Dann of the NBC Political Unit Wednesday.
In case you’ve missed this contretemps we’ll begin with a recap: In a series of interviews in recent days Justice Ginsburg has spoken of Trump with thinly-veiled – OK, unveiled – contempt. Last Friday, she said she “didn’t want to think about the possibility” of a Trump presidency. Over the weekend she joked that she might have to move to New Zealand if he won. On Monday, as criticism of her comments rose, she appeared unconcerned, saying Trump is a “faker” who “has no consistency about him.”
Normally Supreme Court justices keep their partisan opinions about particular politicians to themselves. The high court occupies a delicate position in the machinery of American democracy, the thinking goes; while it makes decisions that have very political implications, and its members undoubtedly have political opinions, it needs to appear as nonpartisan as possible in order to arbitrate between the other branches of government. Otherwise it could lose authority in the eyes of the voters. Politicized judiciaries are supposed to be limited to struggling banana republics, not the United States.
That’s the theory, anyway. It’s why the editorial boards of The Washington Post and The New York Times leapt to condemn Ginsburg’s comments. It’s not that they disagree with the comments – both boards have also written about Trump in harsh terms. It’s that they oppose her saying them.
“It’s inconsistent with her function in our democratic system,” wrote the Post.
“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?” wrote the Times.
Of course, the flaw in this argument is that neither editorial is urging Ginsburg to try and cleanse her mind and be nonpartisan in thinking. Her background and opinions make clear she is a liberal jurist. President Bill Clinton appointed her to the Supreme Court. If by some wild chance the 2016 election did end up in the Supreme Court, she’d be under attack for partisan proclivity no matter what.
Instead, Ginsburg should keep this from being obvious to the American people, according to the editorials. That’s one way of looking at it, in any case.
Still, Trump has had a rare moment of appearing in the right on a sensitive political matter. He’s doing his best to flip that around, however, as he so often does. Handed the moral high ground, he attacked Ginsburg as no longer mentally stable.
“Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!” Trump tweeted late Tuesday night.
And that seems to be the story about 2016’s tone. By going too far, Trump perhaps encourages others to go too far as well. This is an exercise in relativity – Ginsburg’s comments were mild compared to Trump’s own attacks on federal Judge Gonzalo Curiel, who’s overseeing civil suits against Trump University. But Ginsburg didn't say anything similar about Mitt Romney in 2012. Would she have raised New Zealand residency if Jeb Bush were the 2016 GOP nominee?
Mr. McCullough’s comments are another case in point. The historian and filmmaker Ken Burns have organized a loose anti-Trump group of historical-minded scholars. Normally a dry-witted commentator on the foibles of John Adams or the Wright Brothers’ success, McCullough sounds completely different when talking about a Trump victory.
“When you think of how far we have come, and at what cost, and with what faith, to just turn it all over to this monstrous clown with a monstrous ego, with no experience, never served his country in any way – it’s just crazy,” McCullough told The New York Times.
“Monstrous clown with a monstrous ego” is a phrase that appears nowhere in McCullough’s books. Donald Trump has already remade the Republican Party. To some extent his very presence in the race may be doing something similar to the nation’s political discourse.