Tufts University Prof. Daniel Drezner:
If Spoiler Alerts has had a theme for 2016, it’s been that Donald Trump is massively unfit to be president, and that his campaign has challenged all sorts of norms that have mattered in American politics for quite some time. In other words, Spoiler Alerts thinks that candidate Trump has made America worse again, and a President Trump would make America bankrupt again.
What’s beginning to concern me just as much as Trump, however, is how other figures of authority are responding to him.
For example, there’s been a growing trend of retired generals and admirals weighing in on American politics soon after giving up the uniform. This was an emergent phenomenon after the start of the Iraq War, but, egged on by pundits, it seems to have escalated since then. Over the weekend, we all got to see retired Lt. Gen. Michael Flynnham-handedly audition for the role of Trump’s vice presidential pick. Nothing precludes retired generals from commenting about politics, but as retired Marine Corps Gen. John Kelly told Foreign Policy’s Molly O’Toole, it erodes an already weakened norm:
To Kelly and many other current and former military, the brass who are weighing in on the 2016 campaign with critiques or endorsements are breaking down a sacred wall between the military and civilian politics that helps maintain the “tell it like it is” integrity of one of the most trusted institutions in the United States.
“It adds to this mistrust issue … if suddenly a guy retires and says, ‘I think this administration is doing all the wrong things for all the wrong reasons,’” he said. The worst thing, Kelly added, would be for a president “to ever think for a second that he’s getting anything but the absolute best military advice, completely devoid of politics.”
This norm has eroded in the military, but it also applies to other elements of the federal government, like the judicial branch. Last week Justice Ruth Bader Ginsburg completely obliterated that particular norm in a wide-ranging interview she gave to the New York Times’ Adam Liptak.
Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.
These days, she is making no secret of what she thinks of a certain presidential candidate.
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
As my Post colleague Aaron Blake notes, this was not a stray comment by Ginsburg. She has made this point repeatedly this month:
For Ginsburg, it’s clear that this has become a calculated risk that she is going to take. The New York Times comments weren’t even the only time she has been critical of Trump. In an Associated Press interview published Friday, she also said a Trump presidency is basically unthinkable. …
That’s twice in two interviews — i.e. not a coincidence.
A fun “Notorious RBG” meme has burbled its way into political discourse about Ginsburg, and the promoters of that meme seem perfectly delighted with her Trump comments. And, goodness knows, the hard-working staff here at Spoiler Alerts agrees very strongly with the substance of what Ginsburg said.
But because Ginsburg believes in speaking plainly, then let us return the favor: This was a remarkably stupid and egregious comment for a sitting Supreme Court justice to make on the record. Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas, but they never weighed in on presidential politics quite like this. The closest example I can find is that in January 2004, during an election year, Scalia went on a hunting trip with Vice President Dick Cheney. That action alone got legal ethicists into a lather.
What Ginsburg did was way worse, though. Indeed, I can find no modern instance of a Supreme Court justice being so explicit about an election — and for good reason. As the Chicago Tribune noted in an editorial:
To say her public comments are unusual is like saying dancing cows are scarce. Supreme Court justices don’t — at least until now — take public stands on presidential or other elections. One reason is that they are barred from doing so by the federal code of judicial conduct, which states that as a general rule, judges shall not “publicly endorse or publicly oppose another candidate for public office.” They also aren’t allowed to make speeches on behalf of political organizations or give money to candidates. …
Nowhere is that impartiality more important than in the highest court in the land, which has the final word on a host of grave questions. For justices to descend into partisan election campaigns would undermine public faith in their willingness to assess each case strictly on its legal merits. It would also encourage justices to let their political biases affect, if not determine, their decisions.
Indeed. As my Post colleague and Volokh Conspiracy contributor Jonathan Adler writes, “For the record, I share many of her concerns about Trump, and will not support him for President under any circumstances, but these comments seem quite inappropriate for a sitting member of the federal judiciary.”
As I noted earlier this year, trust in the Supreme Court was bound to take a hit after the death of Scalia and the partisan deadlock over filling his seat. But if eroding trust was a slow-burning political fire, Ginsburg just poured gasoline on it. There are certain privileges that one sacrifices to be a sitting member of the federal judiciary and making explicitly partisan comments about presidential elections is one of those privileges.
I cannot see any possible defense of what Ginsburg did, given that she violated Canon 5 of the Code of Conduct for United States Judges. Supreme Court Justices are not strictly bound by that code, but they nonetheless act as exemplars for the rest of the judiciary, and this canon seems pretty important. She should repair the damage and apologize for her remarks as soon as possible. Otherwise, she bears almost as much responsibility as Trump for the slow-motion crisis in American democracy.