{"id":58,"date":"2016-07-14T16:21:32","date_gmt":"2016-07-14T16:21:32","guid":{"rendered":"http:\/\/www.matthiasbrinkmann.de\/wordpress\/?p=58"},"modified":"2016-12-29T23:35:22","modified_gmt":"2016-12-29T23:35:22","slug":"review-should-ruth-bader-ginsburg-have-abstained-from-making-comments-about-donald-trump","status":"publish","type":"post","link":"http:\/\/www.matthiasbrinkmann.de\/wordpress\/2016\/07\/review-should-ruth-bader-ginsburg-have-abstained-from-making-comments-about-donald-trump\/","title":{"rendered":"Review: Should Ruth Bader Ginsburg have abstained from making comments about Donald Trump?"},"content":{"rendered":"

Ruth Bader Ginsburg has recently made the headlines by commenting on Donald Trump\u2019s run for president. Her first comments seemed somewhat reluctant and unplanned<\/a>:<\/p>\n

I can\u2019t imagine what this place would be \u2014 I can\u2019t imagine what the country would be \u2014 with Donald Trump as our president [\u2026] For the country, it could be four years. For the court, it could be \u2014 I don\u2019t even want to contemplate that.<\/p><\/blockquote>\n

Later comments were much more direct<\/a>:<\/p>\n

He is a faker [\u2026] He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.<\/p><\/blockquote>\n

Trump\u2019s response was somewhat expectable\u2014he called her \u201cincompetent<\/a>\u201d, her comments \u201cdumb<\/a>\u201d, and for good measure added that she should resign. But Ginsburg didn\u2019t merely draw Trump\u2019s disapproval. Both the New York Times and the Washington Post published op-eds calling Ginsburg\u2019s comments inappropriate. The Washington Post argued<\/a>:<\/p>\n

Politicization, real or perceived, undermines public faith in the impartiality of the courts. [\u2026] As journalists, we generally favor more openness and disclosure from public figures rather than less. Yet Justice Ginsburg\u2019s off-the-cuff remarks about the campaign fall into that limited category of candor that we can\u2019t admire, because it\u2019s inconsistent with her function in our democratic system.<\/p><\/blockquote>\n

The New York Times added that<\/a><\/p>\n

[It is] baffling that Justice Ginsburg would choose to descend toward [Trump\u2019s] level and call her own commitment to impartiality into question. Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.<\/p><\/blockquote>\n

The basic idea behind both op-eds is that judges should stay neutral on political matters. But is there such a duty? And what could justify it? This is clearly an interesting issue to which one would expect philosophers to contribute something. My hopes are a bit more moderate: to provide a brief review of what others have written about Ginsburg\u2019s comments, and to order some of the comments made in a philosophically interesting way.<\/p>\n

<\/p>\n

Some High-Flown Rhetoric<\/h1>\n

There are some bad arguments to make the case against Ginsburg, and both the Washington Post<\/em> and the New York Times<\/em> op-eds are instances of this. You could simply assert that judges have a role-based duty to stay neutral in politics\u2014that such a duty is part of the way the system is designed, that it is entailed by the principle of the separation of powers, or the independence of the judiciary, or what have you. Mark Joseph Stern at Slate<\/em> thinks that the matter is obvious<\/a>:<\/p>\n

There is really very little to debate about the ethics of Ginsburg\u2019s comments. They were plainly a violation, the kind of partisan partiality that judicial ethics codes strive to prevent.<\/p><\/blockquote>\n

The most he gives in terms of elaboration is the following:<\/p>\n

To be clear, what Ginsburg is doing right now\u2014pushing her case against Trump through on-the-record interviews\u2014is not just unethical; it\u2019s dangerous. As a general rule, justices should refrain from commenting on politics, period. [\u2026] The independence of our judiciary\u2014and just as critically, its appearance of impartiality\u2014hinges on a consistent separation between itself and the other branches of government. That means no proclamations of loyalty to any candidate, or admissions of distaste of any other.<\/p><\/blockquote>\n

But rhetorical appeal to such high-flown ideals just moves the question one level back: why should we accept those<\/em> principles? More precisely, why should we accept that commitment to such principles entails an absolute prohibition that judges never make any type of political comments? We are given little in terms of an argument in these articles.<\/p>\n

It\u2019s not, of course, necessarily the task of a newspaper to argue its case at any greater depth. Appeals to political principles without deeper arguments for these principles have their place in politics. But over the long run, such relatively mindless invocations of principles obscures why we are committed to those principles.<\/p>\n

Impartiality<\/h1>\n

A second unpromising argument would be to say that Ginsburg\u2019s public comments somehow undermine her impartiality, and that she had a duty to remain impartial. The problem with this argument is that it\u2019s not altogether clear why making her opinion public makes Ginsburg any more or less impartial. A conservative commentator, Rick Moran at American Thinker<\/em>, notes this clearly<\/a>:<\/p>\n

The Supreme Court is political. \u00a0The justices can read the polls as well as anyone, and it\u2019s a fantasy to believe that their political biases\u00a0\u2013\u00a0right and left\u00a0\u2013\u00a0aren\u2019t a part of their decision-making process. They are, after all, human and subject to the same emotions and prejudices as the rest of us.<\/p><\/blockquote>\n

Moran\u2019s argument, however, then takes a rather bizarre turn:<\/p>\n

To say they should rise above that is American folklore. \u00a0The very good justices are able to hide their biases using sharp, clarifying legal arguments. \u00a0But Ginsburg is making no attempt to hide anything. \u00a0She is blatantly partisan and should either be impeached or forced to recuse herself when necessary.<\/p><\/blockquote>\n

Moran\u2019s claim appears to be that Ginsburg\u2019s mistake was not to be biased; but to make it public that she was biased. (Note that Moran doesn\u2019t say that judges overcome<\/em> their biases through sharp legal arguments, but that they hide<\/em> them.) This is a curious claim. Perhaps Moran means to say that being transparent about the court\u2019s biases undermines trust in it, an argument I turn to later. But if you accept that judges invariably have biases, it would seem better<\/em> to be transparent about those biases rather than to hide them. Having them open in the public would invite public scrutiny, and diminish barriers between insiders (who know about the biases at any rate) and outsiders.<\/p>\n

What strikes me as the right answer in this matter is given by Mark Tushnet, who dismisses the whole debate as a \u201cflap\u201d, and encourages his readers to note that \u201cnorms change\u201d. He writes<\/a>:<\/p>\n

What\u2019s interesting is why people who acknowledge that that [sic<\/em>] Justices have political views that do influence their legal decision-making nonetheless think that there\u2019s something important about maintaining the facade that they don\u2019t. Perhaps for the Justices, it\u2019s an example of how hypocrisy is the tribute vice pays to virtue.<\/p><\/blockquote>\n

What is more, much would depend on the precise nature of the public comments. Ginsburg\u2019s comments express a general disdain for Trump. But it is not clear why this would make her incapable to decide a case of a possible Trump administration on its legal merits. To presume otherwise is to believe that a great legal mind like Ginsburg\u2019s could not sufficiently supress dislike for a claimant in favour of objectivity.<\/p>\n

Outcomes<\/h1>\n

The most interesting, and I think the best, argument is a type of outcome-oriented argument. Judges should abstain from publicly taking a stance on political issues, so we would argue, because doing so would undermine the long-run ability of the courts to fulfil their function, which is to resolve legal disagreements between people. For the courts to fulfil this function, they must be perceived as impartial and non-partisan; public political statements by judges undermines trust in the courts, which in the long run undermines their efficiency.<\/p>\n

I agree with this line of argument because it fits with my wider thinking on legitimacy. I believe in a view which one can describe, broadly, as a type of instrumentalism about legitimacy:

Still, it strikes me that a neutrality rule is useful to have. To see this, we can turn to Waldron\u2019s argument for \u201cnormative positivism\u201d. Waldron argues that the law\u2014and we can now add, by analogy, the judges that apply it\u2014should be neutral on justice, precisely because<\/p>\n

law must be such that its content and validity can be determined without reproducing the disagreements about rights and justice that it is law\u2019s function to supersede.<\/p>\n