WASHINGTON – In calling Republican Donald Trump a “faker,” Ruth Bader Ginsburg thrust herself into presidential politics to an unprecedented degree for a U.S. Supreme Court justice in the modern era.
The remarks to CNN drew criticism from legal-ethics scholars and a rebuke from Trump, who told the New York Times the comments were a “disgrace.”
The 83-year-old Ginsburg has become a liberal icon, in part because of her blunt comments on and off the bench. But her comments in three interviews over the last week went well beyond even her usual candor.
“He has no consistency about him,” Ginsburg told CNN legal analyst Joan Biskupic. “He says whatever comes into his head at the moment. He really has an ego.”
The court was already an unusually prominent issue in the race between Trump and Democrat Hillary Clinton because the next president is likely to make multiple nominations. The vacancy created by Justice Antonin Scalia’s Feb. 13 death remains unfilled, and Ginsburg will be one of three justices 78 or older on Election Day.
Richard Painter, a legal-ethics expert who teaches at the University of Minnesota Law School, said Ginsburg’s comments could undermine the justices’ authority if Trump becomes president, potentially giving him an excuse to flout the court’s rulings.
“She’s playing with fire,” Painter said. “What I’m worried about is Trump claiming that she needs to recuse if he were elected president from every single presidential-powers case over the next four years. We don’t need to give him grounds for saying the Supreme Court is stacked against him. This is a very dangerous situation.”
Federal law leaves the justices with wide discretion to decide whether they have to disqualify themselves from cases. Both Painter and Steven Lubet, a legal-ethics scholar at Northwestern University’s Pritzker School of Law, said Ginsburg’s comments weren’t enough to force her out of cases involving Trump.
That doesn’t mean her remarks were proper, Lubet said.
“She shouldn’t have done it,” Lubet said. “I think it’s inappropriate for a Supreme Court justice to enter an electoral debate.”
Erwin Chemerinsky, dean of the law school at the University of California, Irvine, defended Ginsburg’s comments.
“I don’t think anyone should be surprised that Ruth Bader Ginsburg thinks this,” Chemerinsky said. “Saying this doesn’t change the reality.”
Ginsburg has given regular interviews in recent years, shedding light on the court’s decisions, weighing in on social issues and discounting the notion that she might soon retire.
But last week, she went further, telling the Associated Press she didn’t want to think about the prospect of a Trump presidency. In an interview with the New York Times, she jokingly spoke of moving to New Zealand if he were elected.
She added in the CNN interview, “How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Trump told the New York Times that Ginsburg should apologize to her fellow justices.
“It’s so beneath the court for her to be making statements like that,” the presumptive Republican nominee said. “It only energizes my base even more. And I would hope that she would get off the court as soon as possible.”
Her comments prompted a mixed response from lawmakers. Senate Republican leader Mitch McConnell of Kentucky called her remarks “totally inappropriate,” while the No. 2 Senate Democrat, Dick Durbin of Illinois, said, “Justices have to be careful that they don’t appear or sound political.”
Another Republican, Bob Corker of Tennessee, who has generally spoken positively about Trump, was less critical. “I was surprised, especially someone as senior, but that’s certainly her prerogative,” he said.
Ginsburg had no comment on Trump’s criticisms, according to Supreme Court spokeswoman Kathy Arberg.
Ginsburg in the interviews also discussed some of the court’s recent decisions and said the Senate should consider President Barack Obama’s nomination of Judge Merrick Garland to fill Scalia’s seat.
In earlier eras, members of the court were overtly political. During the 18th and 19th centuries, justices often campaigned for their party’s presidential candidates. Justice Charles Evans Hughes was still serving on the court when he was selected as the Republican presidential nominee in 1916. Hughes stepped down from the court to campaign, lost the election and later became chief justice.
Ginsburg’s colleagues, by contrast, generally portray the court as being above the nation’s political battles. Justice Stephen Breyer is fond of saying the court’s members aren’t “junior-varsity politicians.” Shortly before Scalia’s death, Chief Justice John Roberts said the Supreme Court appointment process had become too politicized, lamenting the emerging pattern of party-line Senate votes on even qualified nominees.
“We don’t work as Democrats or Republicans,” Roberts said.
Scalia had been more willing to push the boundaries that separate the court from the government’s political branches. He drew criticism in 2004 for going duck hunting with Vice President Dick Cheney and then taking part in a case involving Cheney’s energy task force.
Even so, Ginsburg’s comments mark a new step toward a court playing a role in the nation’s politics, Lubet said.
“We went from a time of intensely political justices to a time where they strive to be apolitical,” he said. “Now they seem to be moving back.”