# Should Ginsburg recuse herself from cases involving Trump administration? **URL:** \ **Category:** Great Debates\ **Created:** [June 6, 2017, 1:36am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237 "2017-06-06T01:36:04Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [June 6, 2017, 6:17pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/81 "2017-06-06T18:17:17Z")
> [@Okrahoma](#): > > No, I didn’t. I suggested that judges should recuse themselves from cases which involve people about whom they have previously and very publicly expressed very strong negative opinions. so - if they keep these very strong negative opinions to themselves, thats ok? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 6, 2017, 6:17pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/82 "2017-06-06T18:17:26Z")
> [@Buck\_Godot](#): > > Should justices be allowed to vote? The act of going into the voting booth indicates that they have an opinion one way or another regarding whomever wins the election. > > Also should a justice who ruled on a president in one case be allowed to hear a second case against him? Their opinion of his argument in the first case might influence how they think of his argument in the second case. Both of these are terrible analogies. But for what it’s worth, I’d say I’m skeptical of the cases that might cone before the court that test the justices’ like or dislike for a President, as opposed to testing the effect of a set of facts with the relevant law applied. Put another way, **Okrahoma** : what case do you imagine that RBG might hear in which you honestly feel her opinion about bad Trump is as a political choice might sway her ruling? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 6, 2017, 6:17pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/83 "2017-06-06T18:17:49Z")
Some of you guys are being a little silly downplaying what Ginsberg did. Making such negative public remarks was pretty outrageous and is sure as shit different than casting a ballot at election time. Recusal is just as much about public perception as an actual concern of prejudice and Ginsberg made this public. I still think recusing herself from any Admin involved case is a vast overreaction. I’m basically on the same page as **ganthet** on this. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 6, 2017, 6:20pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/84 "2017-06-06T18:20:46Z")
> [@Bricker](#): > > Both of these are terrible analogies. > > But for what it’s worth, I’d say I’m skeptical of the cases that might cone before the court that test the justices’ like or dislike for a President, as opposed to testing the effect of a set of facts with the relevant law applied. > > Put another way, **Okrahoma** : what case do you imagine that RBG might hear in which you honestly feel her opinion about bad Trump is as a political choice might sway her ruling? The upcoming immigration executive order case. AFAIR, an opinion was expressed by several lawyers/judges reviewing the case in the press that the EO would be fine if Clinton or Obama issued it, but not when Trump did. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [June 6, 2017, 6:22pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/85 "2017-06-06T18:22:37Z")
> [@CarnalK](#): > > Some of you guys are being a little silly downplaying what Ginsberg did. Making such negative public remarks was pretty outrageous and is sure as shit different than casting a ballot at election time. Recusal is just as much about public perception as an actual concern of prejudice and Ginsberg made this public. > > I still think recusing herself from any Admin involved case is a vast overreaction. I’m basically on the same page as **ganthet** on this. I won’t downplay what she said – it was a big mistake, and worthy of a good apology, which she gave. ---
**Author:** ![ganthet](https://avatars.discourse-cdn.com/v4/letter/g/9de0a6/32.png) [@ganthet](https://boards.straightdope.com/u/ganthet)\ **Post date:** [June 6, 2017, 6:25pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/86 "2017-06-06T18:25:01Z")
> [@Buck\_Godot](#): > > Should justices be allowed to vote? The act of going into the voting booth indicates that they have an opinion one way or another regarding whomever wins the election. We have a secret vote for a reason. Even in the unlikely event that a justice had a candidate’s bumper sticker or a yard sign does not mean that it would be reasonable to question their impartiality in a case where the opponent one, since there is no outward sign of a bias against that particular opposing candidate directly. There are probably too many cases to count before a given judge or justice involving the actions of a political figure that they did not vote for. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 6, 2017, 6:27pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/87 "2017-06-06T18:27:21Z")
> [@iiandyiiii](#): > > I won’t downplay what she said – it was a big mistake, and worthy of a good apology, which she gave. You most definitely downplayed it. “Vague sarcasm”? Give me a break. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 6, 2017, 6:28pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/88 "2017-06-06T18:28:01Z")
> [@iiandyiiii](#): > > I won’t downplay what she said – it was a big mistake, and worthy of a good apology, which she gave. You claimed her statement was merely “vague sarcasm”. And in the poll I put up you asking “Were the statements a clear indication that Ginsburg was opposed to Trump’s candidacy?” you’re the lone “No, obviously” vote. If that’s not downplaying it, I don’t know what is. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [June 6, 2017, 6:31pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/89 "2017-06-06T18:31:12Z")
> [@Okrahoma](#): > > The upcoming immigration executive order case. AFAIR, an opinion was expressed by several lawyers/judges reviewing the case in the press that the EO would be fine if Clinton or Obama issued it, but not when Trump did. oh - so we have an opinion of some folks of a ‘what if’ - yeah - that makes all the difference in the world. I submit that had Obama or Clinton issued the same order(s) with the same backgruond on it as Trump (with declarations prior to election of what he intended to do) - that they would also shoot ths EO down. -just like they shot several other EOs by Obama down. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 6, 2017, 6:32pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/90 "2017-06-06T18:32:36Z")
> [@Okrahoma](#): > > The upcoming immigration executive order case. AFAIR, an opinion was expressed by several lawyers/judges reviewing the case in the press that the EO would be fine if Clinton or Obama issued it, but not when Trump did. That’s because Clinton and Obama have not publicly expressed bigotry toward Muslims. Ginsburg took no view on whether that happened or whether it’s legally relevant. So you’re essentially arguing that having a general negative disposition toward Trump is enough. I don’t think so. Justices having a general negative (or positive) disposition toward certain issues or litigants has not generally been seen as a sufficient reason to recuse, categorically. It’s worth correcting the misapprehension elsewhere in this thread that the Supreme Court are subject to the Code of Judicial Conduct. They are not. That’s why, for example, Scalia was not compelled to recuse from cases in which Dick Cheney was a party despite their personal friendship and substantial gifts from the Cheneys to Scalia. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 6, 2017, 6:34pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/91 "2017-06-06T18:34:36Z")
> [@Richard\_Parker](#): > > It’s worth correcting the misapprehension elsewhere in this thread that the Supreme Court are subject to the Code of Judicial Conduct. They are not. They are, by the clear reading of the Code of Judicial Conduct, since it spells out to whom it applies. There are no exclusions in it for the Supreme Court justices. They definitely can safely ignore it. But that doesn’t mean it doesn’t apply to them. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [June 6, 2017, 6:34pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/92 "2017-06-06T18:34:52Z")
nm ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 6, 2017, 6:37pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/93 "2017-06-06T18:37:11Z")
Two things: first, the canons of judicial ethics override the First Amendment as far as questions of recusal go. Second, any bias implicit in Ginsburg’s words is about Trump, not about the Trump Administration. If Trump appears before her as a _party_, then she should recuse herself. However, given that the Trump University case settled and there is no other litigation personally involving Trump which seems likely to come before SCOTUS (not that the Trump University case was likely to), that’s irrelevant. In the cases that _will_ come before the Court - including the “Muslim ban” - Trump is not a party. It’s simply not practicable to require Ginsburg to recuse herself from every case in which the federal government is a party because of any perceived or actual animus toward Trump personally. Okay, it’s really three things, because I didn’t see the following post until after I started writing this one: > [@Okrahoma](#): > > It doesn’t bother you that she violated the Code of Conduct for federal judges? She didn’t, because she’s not bound by it. The Code of Conduct for United States Judges only applies to lower federal judges (as explained by Chief Justice Roberts [here](https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf)). Supreme Court justices are only bound by the Constitution and their personal ethical obligations. So Ginsburg only has to recuse herself if she feels like it. ETA: I see this has already been addressed. But to rebut your claim about exceptions, the relevant language is: > [@](#): > > This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code. Note who’s missing. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 6, 2017, 6:38pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/94 "2017-06-06T18:38:02Z")
> [@Ravenman](#): > > I omitted it because I can’t find it in the document. What page are you looking at? Page 14. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 6, 2017, 6:40pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/95 "2017-06-06T18:40:11Z")
> [@Okrahoma](#): > > They are, by the clear reading of the Code of Judicial Conduct, since it spells out to whom it applies. There are no exclusions in it for the Supreme Court justices. They definitely can safely ignore it. But that doesn’t mean it doesn’t apply to them. No, that’s factually incorrect. The code expressly applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” As Chief Justice Roberts wrote, “That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.” ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 6, 2017, 6:42pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/96 "2017-06-06T18:42:03Z")
> [@Really\_Not\_All\_That\_Bright](#): > > ETA: I see this has already been addressed. But to rebut your claim about exceptions, the relevant language is: > > Note who’s missing. “Anyone who is an officer of the federal judicial system authorized to perform judicial functions is a judge for the purpose of this Code. All judges should comply with this Code except as provided below.” what’s provided below does not exclude Supreme Court Justices. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 6, 2017, 6:43pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/97 "2017-06-06T18:43:06Z")
> [@Richard\_Parker](#): > > No, that’s factually incorrect. > > The code expressly applies to “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” > > As Chief Justice Roberts wrote, “That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.” He also wrote: "Some observers have suggested that, because the Judicial Conference’s Code of Conduct applies only to the lower federal courts, the Supreme Court is exempt from the ethical principles that lower courts observe. That observation rests on misconceptions about both the Supreme Court and the Code. " ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 6, 2017, 6:43pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/98 "2017-06-06T18:43:24Z")
I guess you won’t acknowledge your error. But perhaps you’ll at least acknowledge that no one on the Supreme Court agrees with your idiosyncratic reading of the Code? ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 6, 2017, 6:45pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/99 "2017-06-06T18:45:06Z")
> [@Richard\_Parker](#): > > I guess you won’t acknowledge your error. But perhaps you’ll at least acknowledge that no one on the Supreme Court agrees with your idiosyncratic reading of the Code? Justice Roberts says that the Supreme Court is not exempt from the ethical principles that the lower courts have to observe. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 6, 2017, 6:46pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/100 "2017-06-06T18:46:05Z")
> [@Okrahoma](#): > > Justice Roberts says that the Supreme Court is not exempt from the ethical principles that the lower courts have to observe. Yes. Perhaps you want to continue reading Roberts, as he patiently explains why you’re wrong to think the Code applies? Here’s what he says: > [@](#): > > Although a Justice’s process for considering recusal is similar to that > of the lower court judges, the Justice must consider an important factor that > is not present in the lower courts. Lower court judges can freely substitute > for one another. If an appeals court or district court judge withdraws from a > case, there is another federal judge who can serve in that recused judge’s > place. But the Supreme Court consists of nine Members who always sit > together, and if a Justice withdraws from a case, the Court must sit without > its full membership. \*\*A Justice accordingly cannot withdraw from a case as a > matter of convenience or simply to avoid controversy. \*\*Rather, each Justice > has an obligation to the Court to be sure of the need to recuse before > deciding to withdraw from a case. In lower courts, it is appropriate to withdraw because of an appearance of impropriety. On the Supreme Court, the reasons for recusal are narrower. [Previous page](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237.md?page=4) [Next page](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237.md?page=6)