Ruth Bader Ginsburg Regrets Anti-Trump Comments

Justice Ginsburg walks back her comments about the presumptive Republican nominee.

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After being criticized from both the left and the right over comments she made in a series of interviews that expressed more explicit opinions about a candidate for President than we’ve heard from a Supreme Court Justice in quite a long time, Justice Ruth Bader Ginsburg has issued a statement seemingly acknowledging that she went too far and ventured into territory that Judges should generally stay away from:

WASHINGTON — Justice Ruth Bader Ginsburg of the Supreme Court on Thursday expressed regret for her recent remarks about the candidacy of Donald J. Trump, saying they were “ill-advised.”

Earlier this week, Justice Ginsburg called Mr. Trump “a faker” who “really has an ego” and said he had been treated too gently by the press. Mr. Trump, she said, “says whatever comes into his head at the moment” and has no consistency in his thinking. She also made critical remarks in interviews with The New York Times and The Associated Press.

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

The brief statement was a rare, public admission of fault by a member of the Supreme Court, an institution which jealously guards its traditions and almost never acknowledges missteps in the conduct of the justices.

It also came at a dramatic moment in the presidential campaign, with Mr. Trump preparing to name his vice-presidential pick on Friday and then, next week, formally accept the Republican party’s nomination. The clash between a presidential candidate and a sitting Supreme Court justice is certain to further roil an already raucous campaign.

Mr. Trump had lashed back at the justice in recent days, and she was also criticized in editorials and by legal ethics experts.

“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” Mr. Trump said in a telephone interview with The Times on Tuesday. “I think it’s a disgrace to the court, and I think she should apologize to the court. I couldn’t believe it when I saw it.”

Few legal experts had expected Justice Ginsburg to offer the apology that Mr. Trump demanded. Justices typically remain largely out of the public eye and are insulated from political pressures and news media coverage that can compel action.

But the torrent of criticism, especially from supporters and allies of Justice Ginsburg, appears to have pierced that protection.

In reality, of course, Justice Ginsburg needn’t have said anything at all in response to the criticism that her remarks generated. She could have let them stand for themselves and dealt with whatever consequences may have come from them if and when they came. The fact that she did walk them back, though, is a point in her favor because is does show that she recognizes that she did likely take things a step too far with her comments directly attacking a candidate for President who very well could be a future party to cases that she will be asked to consider. Even with this seemingly apology, of course, there will be those who will seek to force Ginsburg to recuse herself in future cases should Trump win the election, but most if not all of those calls will likely be without merit. The one situation where I could potentially see it applying would be if the election were to somehow end up in a situation similar to the 2000 election that resulted in legal disputes over the legitimacy of the outcome that called on the Supreme Court to make a decision that would effectively determine the outcome of the election as it did in Bush v. Gore. That case, though, was quite unique in American history and the odds that it’s going to repeat itself are fairly low. In the ordinary course of the cases involving a hypothetical Trump Administration that could reach the Supreme Court, the fact that Ginsburg said what she did doesn’t strike me as grounds for recusal notwithstanding the fact that she did come close to violating the spirit, and perhaps the letter, of two of the Canons meant to govern the conduct of Federal Court Judges.

One thing that Ginsburg’s initial comments make clear that I did not mention in my initial comments is what it tells us about her likely plans for the future. In the past, Ginsburg has brushed aside calls for her to resign from the Court, including those that called on her to step aside sometime in the last two years or so in order to give President Obama a chance to fill her seat with someone who mirrors her judicial philosophy rather than risk the possibility that a Republican President would be the one who gets to do that. While Ginsburg has resisted those calls, she has made clear in not so thinly veiled comments that she would prefer that her replacement be picked by a Democratic President, and preferably by a female Democratic President. This would seem to be a fairly good indication that Ginsburg would resist stepping aside if Trump wins the nomination, although the fact that she would be in her mid-80s at the end of the first term of a hypothetical Trump Presidency, and well into her 90s at the end of a second term. Absent a health crisis, though, one suspects that Ginsburg will do everything she can to make sure Donald Trump does not pick her replacement. If Hillary Clinton wins, the White House, though, the odds seem fairly high the Ginsburg will see that as a signal that she can step aside comfortable in the idea that her legacy on the Court will be preserved by whomever replaces her. We may not see Ginsburg step aside in the first year of Clinton’s Presidency, especially if Clinton has to deal with a battle over the replacement for Justice Scalia, but it seems likely we can expect it to happen some time in Clinton’s first term.00

FILED UNDER: Campaign 2016, Donald Trump, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. C. Clavin says:

    She should take a page from Trump himself:

    Never apologize.

    She was right…Democrats need to grow spines and stand by thier convictions.

  2. MarkedMan says:

    Good for her

  3. george says:

    Alito and Roberts probably told her they were going to bash Clinton if she didn’t apologize – ie if justices are allowed to call candidates crazy (which I’d say Trump is) then it won’t stop with Trump, every justice is going to endorse their favorite candidate or slag the one they don’t like.

    This was never going to be a one time event – either no justice comments about candidates or they all do. Hence the apology, it would do SCOTUS no good to be that openly political – and the odds are good Clinton will get to appoint the next two or three justices, if they’re seen as completely political it’ll make confirming them even more difficult.

  4. Jenos Idanian says:

    Just to get ahead of the curve, I’d like to go on the record as condemning any potential backlash against Muslims over the attack in Nice.

  5. Pch101 says:

    @george:

    It’s not an uncommon tactic to intentionally do something that you shouldn’t have done, then apologize after the fact when etiquette or the rules require it.

    She got her message out, which was the point. Republicans who want to whine about it should type “sandra day o’connor al gore terrible” into a search engine — not only did she express her unhappiness about Gore winning the popular vote, but she didn’t recuse herself from the Bush v. Gore case. (And wouldn’t you know it, but she ruled in Bush’s favor.)

  6. wr says:

    @Jenos Idanian: Just for once in your pathetic, miserable excuse for an existence, why don’t you let the blood dry before you use a tragedy to score your cheap little points, you disgusting loser.

    Sincerely,

    The Human Race

  7. Moosebreath says:

    Trump, on the other hand, surely does not regret his anti-Ginsburg comments.

  8. bill says:

    so she made a “judgmental error”, the irony.

    @Moosebreath: well, she’s old a hell and her memory is shot- probably why she failed to realize that she’s not supposed to weigh in on elections- something about being “impartial” or something.

  9. An Interested Party says:

    well, she’s old a hell and her memory is shot…

    compared to you, her intellect/intelligence is quite brilliant…it’s nice to know that you are an ageist as well as a bigot…

  10. george says:

    @Pch101:

    Its not just Republicans who are criticizing her for speaking out against Trump. The problem is the same as with Presidents expanding the powers of the executive – if your guy can do it, so can the other team’s guy.

    Maybe it doesn’t matter, and the progressive justices should be lambasting Trump while the conservative ones lambaste Clinton. Personally I don’t think it’d help the already over the top partisan politics (which I’d say is more the Republicans fault than the Democrats, though both have played their part)..

  11. Pch101 says:

    @george:

    I’ve stated more than once that she should have kept mum, including in the post to which you responded.

    That doesn’t change the fact that we are surrounded by Republican hypocrites who don’t hold their own to the same standards.

    Was there even a single Republican who admonished Scalia when he attacked the Washington Post for being too liberal? Was there even one member of the GOP who said that O’Connor should recuse herself from Bush v Gore given her stated preferences for Bush?

    There is no reason to not point out that these people talk out of both sides of their mouths routinely and that they have no business playing the holier-than-thou card.

  12. al-Alameda says:

    I am curious: Have Justices Antonin Scalia, Samuel Alito, and Clarence Thomas ever apologized for “skipping” President Obama’s State of the Union address(es)?

    As I recall, in a Nobel Prize For Irony worthy comment, Justice Thomas rationalized his absence by saying, ” … it has become so partisan and it’s very uncomfortable for a judge to sit there.”

    Now, I don’t expect Scalia to apologize, but the others?

  13. steve s says:

    while we’re discussing how improper it was of her to say those things that everyone knows, Newt Gingrich is now saying maybe we should test all muslims in the US and deport any whose answers we don’t like.

  14. george says:

    @steve s:

    Yup, Gringrich is willing to say revolting things to get elected (I’d say he’s stupid, but my guess is he’s of more than average intelligence, but immoral). True for many politicians (and right now more Republicans than Democrats).

    However, he’s not on the Supreme Court, so its in a different category than a justice. For one thing, Newt can be thrown out by the voters at any time. Justices are there for life. A lot of them express political opinions (cue Scalia for instance), but campaigning in elections from their safe seat is crossing a line (and again, RBG herself has said she went too far – that should say something).

  15. bill says:

    @steve s: 1- newt is not in power anymore
    2- you cherry picked part of his summation and showed the part that makes it more inflammatory. true, the whole part would leave many uptight but it also makes more sense when we’re dealing with an enemy of ours that will not put on a uniform and fight it out on the battlefield. dealing with cowards who kill at random should never be rewarded or encouraged. and their supporters should be punished as well, not given safe-haven into this country.

    side note- when liberals get all peeved about potential change to American leadership that they “hate”- why do they always say they’ll move to canada,europe, nz(a new one by any means) but never mexico? i mean really, it’s right there and the weather is better than canada for the most part….

  16. Andrew says:

    side note- when liberals get all peeved about potential change to American leadership that they “hate”- why do they always say they’ll move to canada,europe, nz(a new one by any means) but never mexico? i mean really, it’s right there and the weather is better than canada for the most part….

    Better educational systems (No child left behind took a great system and made our children test takers, period. No critical thinking, just robots.) Better healthcare systems that do not revolve around the best care money can buy, better progressive laws regarding drugs, guns, and mental health care. Socialism isn’t a bad word, unlike our propaganda that makes the association to Nazi’s, Mussolini, Staling, NK. Even though our capitalist system isn’t exactly too far behind at this point. Carlin, he was right, and still is.

    Mexico? Nice beaches. Great sights, and history sites, food… But, nothing else.

  17. HarvardLaw92 says:

    Suffice to say this:

    I know the lady well, she’s quite better at politics & intrigue than most people give her credit for and she absolutely did this intentionally & for a specific purpose – which she achieved.

    She also doesn’t regret one word of it.