OPINION: Ginsburg should recuse herself from Trump travel ban case

Last week, the Trump administration asked the Supreme Court to vacate lower-court injunctions against the president’s executive order which, for a 90-day period, would ban travelers from six Muslim-majority countries from entering the United States.

The Fourth Circuit U.S. Court of Appeals, in upholding an injunction last month, said President Trump’s executive order “in context drips with religious intolerance, animus and discrimination,” and therefore violates the First Amendment guarantee that government will treat all religions even-handedly.

With Saturday’s attack in London attributed to Islamist terrorists, the focus on the case can only increase.

{mosads}These developments raise a question: will Justice Ruth Bader Ginsburg recuse herself and decline to participate in the case? The question arises, of course, from Ginsburg’s extraordinary, even shocking interventions in the last election campaign.

In July of last year, smack dab in the middle of the election, Ginsburg decided, for reasons known only to herself, to vent her political opinions.

When asked by an interviewer about a possible Trump presidency and how it might affect the Supreme Court, she said: “I don’t want to think about that possibility, but if it should be, then everything is up for grabs.” She was only warming up.

Days after that first interview, Ginsburg told a second interviewer: “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president.”

The prospect of a Trump presidency reminded her of something her late husband would have said: “Now it’s time for us to move to New Zealand.” Predictably enough, then-candidate Trump retaliated with a tweet calling for her resignation.

After another few days had passed, and having had time to judiciously consider the propriety of her behavior, Ginsburg decided to leap into the fray yet again. She confided to a third interviewer: “[Trump] is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego.” (Talk about saying whatever comes into one’s head.)

The last barrage drew a chorus of criticism from venues that would ordinarily be vociferous cheering sections for the semi-cult heroine also known as “the Notorious R.B.G.” 

Even the editorial page of the New York Times (not a reliable booster of Donald Trump in July of 2016 or today) opined that “Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling.” Many other voices echoed those sentiments.

The Times editorial appeared on July 13th. The next day, Ginsburg released a written statement: “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.”

There have been no further public outbursts from Ginsburg, but is her prior behavior itself sufficient to disqualify her from participating in the review of Trump’s proposed temporary travel ban? It says here that it is.

Justices of the U.S. Supreme Court, because they stand at the very pinnacle of the federal judiciary, are technically not bound by the Code of Conduct for United States Judges. 

But there is no good reason why, technicalities aside, they should not adhere to the minimum standards set forth in the Code. Those relevant standards require, first of all, that a judge should not “publicly endorse or oppose a candidate for public office[.]” That’s one canon Justice Ginsburg has violated.

The Code of Conduct also states that “[a] judge … should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Will Justice Ginsburg’s participation in the pending travel-ban case promote “public confidence in the… impartiality of the judiciary”?

I think not.

It is not merely Ginsburg’s very public antipathy towards Trump that arguably disqualifies her, although even taken alone that might be enough. Rather, it is the particular nature of the pending case that would make her participation flagrantly inappropriate.

The Fourth Circuit’s majority opinion that the Supreme Court will be reviewing turns on a finding that Trump’s stated reason for issuing the travel-ban “was provided in bad faith, as a pretext for its religious purpose.” 

The majority found that, although Trump said he was acting to protect the public, his true motive was to punish Muslims.

So, one issue before the Supreme Court will be whether or not Trump’s reason for the travel ban was provided “in bad faith.” Justice Ginsburg has publicly labeled then-candidate Trump a “faker” who “says whatever comes into his head at the moment.”

With that history, no rational person could have a shred of confidence that she will be an impartial judge of whether Pres. Trump acted in good or bad faith in stating his reason for the ban.

No one can force Justice Ginsburg to recuse herself from the travel-ban case; it is entirely her own decision. But, if she truly understands how disastrously “ill-advised” her attacks on Trump were, she would step aside. 

David E. Weisberg is an attorney, and a member of the New York state bar. His writing has appeared in the Social Science Research Network and in The Times of Israel.

The views expressed by contributors are their own and are not the views of The Hill.