# 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:** 6
**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, 6:47pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/101 "2017-06-06T18:47:53Z")
Roberts says that SCOTUS justices should observe the ethical principles enshrined in the canons of judicial conduct. That does not mean SCOTUS justices are _subject_ to them. They are effectively aspirational for SCOTUS. > [@Okrahoma](#): > > “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. Okay, so which of the following does Ginsburg fall under? > [@](#): > > United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges… special masters and commissioners ---
**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, 6:51pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/102 "2017-06-06T18:51:10Z")
> [@Okrahoma](#): > > You omitted: > > “To the extent that any of the complaints are based on the belief that the Judge’s alleged bias renders him unable to sit as a judge in a case involving the President or any particular issue, they are (at least) premature as any such claim would await an actual instance.” > > Ok. We do have an actual instance in this case. The upcoming immigration executive order case. Let’s be clear about the context of that part of the memorandum: There were four (really five, but the last is irrelevant) complaints against the judge. The two that are really relevant are the charge that he violated the canon prohibiting political activity, and the one that he had a general bias against Bush. On the matter of his statement constituting political activity, the council found that he did violate the canon with his statement, but that his apology and the admonishment were sufficient to close the matter. Period. On the matter of general political bias, the council found that the judge did not violate the canon because the canon doesn’t address general political bias. The council basically found it crazy to insist that judges not hold any political views. And then they wrote that complaints along this line should be dealt with at the time a controversy comes up. So you need to be clearer on what wrongdoing you’re accusing Ginsburg of. Is it her remarks to the press that were critical of Trump? The council clearly and unequivocally found that an apology and admonishment were sufficient. Is it that Ginsburg just generally doesn’t like Trump? Then someone ought to show how this might impact a specific case before the court, and even then, it sounds like as far as the Judicial Council of the Second Circuit was concerned, there was no reasonable assurance that such a claim would be successful in making a judge stand aside. So again: what’s your complaint about Ginsburg? That she said things that constituted political activity, or that she doesn’t like Trump? Because you started the thread arguing the former, and now that your case on that has been destroyed, you’re veering towards the latter. ---
**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, 7:01pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/103 "2017-06-06T19:01:33Z")
FWIW, [here’s](http://boards.straightdope.com/sdmb/showpost.php?p=19472326&postcount=46) what I said about Ginsburg at the time (in a thread that also digs into recusal a bit): > [@](#): > > The legitimacy of the Supreme Court is both important and fragile. The way we’re going, you can start to imagine a world in which Presidents simply stop listening to it. That would be a disaster for our republic. Ginsburg’s comments usher us further down that road. > > I don’t know if they are really different in a meaningful way from the kinds of things Scalia used to say or the other justices have said. I don’t think anyone had any reasonable doubts about who Scalia supported in Bush v. Gore. Indeed, IIRC, some of the justices had told people outside the Court who they wanted to win prior to that case coming to them, just not in an interview with the press. But even if they aren’t different, that doesn’t excuse them. ---
**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, 7:02pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/104 "2017-06-06T19:02:16Z")
> [@ganthet](#): > > … reasonable to question their impartiality in a case where the opponent one… Or won, rather. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [June 6, 2017, 7:21pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/105 "2017-06-06T19:21:00Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. I think you could (and probably should) draw a distinction between cases involving the Executive (where Trump may or may not be a “named” party, but which deal with the routine exercise of executive power) and cases where Trump himself (or any other official) is directly relevant to the resolution of the case. Assuming that Ginsburg demonstrated an animus or prejudgment of Trump, there would seem to be a credible argument for recusal in the second category. (Imagine a trial judge wieghing witness credibility after announcing that he already thought that one of the witnesses was not credible. We’d generally want recusal, I think). Given the way that (some) courts have approached the immigration EO (i.e., focused heavily on the intent of Trump himself), I would put that particular case in the second category. Most of the cases brought against the administration (as with any administration) will probably not raise that issue. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 6, 2017, 8:57pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/106 "2017-06-06T20:57:13Z")
> [@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. Just to be clear, you’re not moving the goalposts here: you think that if Obama had spoken about wanting to ban Muslims from the country, and then issued this exact executive order, RBG would have supported it? ---
**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, 9:06pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/107 "2017-06-06T21:06:02Z")
> [@Falchion](#): > > (Imagine a trial judge wieghing witness credibility after announcing that he already thought that one of the witnesses was not credible. We’d generally want recusal, I think). Sure – but as a general rule, the Supreme Court isn’t a finder of fact. The factual record is already made when a case reaches their eyes. So it would seem much less of an issue to learn the RBG thinks Trump is a disaster as President when she’s not being asked to judge his fitness as president. ---
**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, 9:17pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/108 "2017-06-06T21:17:53Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Roberts says that SCOTUS justices should observe the ethical principles enshrined in the canons of judicial conduct. That does not mean SCOTUS justices are _subject_ to them. They are effectively aspirational for SCOTUS. Of course they are “effectively aspirational” - because they can ignore them at will. Doesn’t mean they don’t apply. > [@](#): > > Okay, so which of the following does Ginsburg fall under? She falls under (and I quote) “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, 9:20pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/109 "2017-06-06T21:20:37Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Just to be clear, you’re not moving the goalposts here: you think that if Obama had spoken about wanting to ban Muslims from the country, and then issued this exact executive order, RBG would have supported it? When RBG weighed that case, her visceral dislike of the President would not enter into her decision. ---
**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, 9:35pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/110 "2017-06-06T21:35:38Z")
> [@Okrahoma](#): > > When RBG weighed that case, her visceral dislike of the President would not enter into her decision. And why do you assume it will now? ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [June 6, 2017, 9:37pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/111 "2017-06-06T21:37:35Z")
> [@Okrahoma](#): > > When RBG weighed that case, her visceral dislike of the President would not enter into her decision. By which you mean that she _must_ let her “visceral dislike of Trump” (which I do not believe has been shown to exist; ‘visceral’ is a rather strong term) enter into and influence her decision about cases related to his actions and decisions? ---
**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, 9:39pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/112 "2017-06-06T21:39:38Z")
> [@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. > [@Left\_Hand\_of\_Dorkness](#): > > Just to be clear, you’re not moving the goalposts here: you think that if Obama had spoken about wanting to ban Muslims from the country, and then issued this exact executive > order, RBG would have supported it? > [@Okrahoma](#): > > When RBG weighed that case, her visceral dislike of the President would not enter into her decision. I think you’re muddling the conversation here. The legal expert opinions you refer to in the first quote were saying Trump’s prior statements on banning Muslims will detrimentally affect defence of his EO in court. That has absolutely nothing to do with Ginsburg’ s feelings about Trump. ---
**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, 9:40pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/113 "2017-06-06T21:40:18Z")
> [@simster](#): > > And why do you assume it will now? … because she’s human. That’s why judges recuse themselves. It’s not an announcement that they would deliberately rule against people they dislike. It’s an acknowledgement that they are human and, being human, having a visceral dislike against one of the parties in the case may color their judgement. ---
**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, 9:41pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/114 "2017-06-06T21:41:30Z")
> [@CarnalK](#): > > I think you’re muddling the conversation here. The legal expert opinions you refer to in the first quote were saying Trump’s prior statements on banning Muslims will detrimentally affect defence of his EO in court. That has absolutely nothing to do with Ginsburg’ s feelings about Trump. It does - because she’d be quite willing to believe the worst of Trump where someone neutral wouldn’t be. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [June 6, 2017, 9:43pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/115 "2017-06-06T21:43:11Z")
> [@Okrahoma](#): > > It does - because she’d be quite willing to believe the worst of Trump where someone neutral wouldn’t be. Hogwash. Are you now contending that Justice Ginsburg has never been neutral in how she views Mr. Trump? Not even before she ever heard of him? ---
**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, 9:43pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/116 "2017-06-06T21:43:47Z")
> [@Okrahoma](#): > > It does - because she’d be quite willing to believe the worst of Trump where someone neutral wouldn’t be. Incorrect. A neutral judge could not ignore the plain meaning of Trump’s public statements. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [June 6, 2017, 9:48pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/117 "2017-06-06T21:48:06Z")
> [@Okrahoma](#): > > … because she’s human. That’s why judges recuse themselves. It’s not an announcement that they would deliberately rule against people they dislike. It’s an acknowledgement that they are human and, being human, having a visceral dislike against one of the parties in the case may color their judgement. You seem to be hinging your argument rather heavily on that “visceral dislike” thing. Again, I think you have utterly and completely failed to suggest that she has such a strong dislike of him. She _did_ clearly hint that Trump being elected would likely have a deleterious (in her opinion) effect on the supreme court composition, but that would apply to ANY republican president. And she did say that early on in Trump’s run she though his election unlikely, which indicates precisely no deviation from the average person’s opinion, because by everyone’s estimate he was a dark horse candidate at that point. But you have utterly failed to present a case indicating that she has a personal “visceral dislike” of Trump as a person. Which, now that I think of it, destroys your entire thesis, doesn’t it? ---
**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, 9:48pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/118 "2017-06-06T21:48:36Z")
> [@CarnalK](#): > > Incorrect. A neutral judge could not ignore the plain meaning of Trump’s public statements. Neutral judges ignored the plain meaning of Obama’s and his administration’s statements that the health care mandate was not a tax, and ruled that it is a tax. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [June 6, 2017, 9:51pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/119 "2017-06-06T21:51:28Z")
> [@Okrahoma](#): > > … because she’s human. That’s why judges recuse themselves. It’s not an announcement that they would deliberately rule against people they dislike. It’s an acknowledgement that they are human and, being human, having a visceral dislike against one of the parties in the case may color their judgement. Judges are very rarely forced to recuse themselves. It may happen in exceptional circumstances, but virtually every time, the judge will decide to recuse themselves out of an abundance of caution, not because they will have some penalty to themselves because of a possible conflict, but that the case itself could be vulnerable on appeal due to a possibility of bias. The judge may feel perfectly capable of judging fairly, but will still recuse himself to ensure that there will not be appeals based on their refusal to recuse himself. They would not face sanction for not recusing himself, they would not judge the case any differently, they just feel that it would be best for them to step back so that no one can accuse them of bias and overturn the case on that. As it is very unlikely that any of SCOTUS’s decisions will be appealed to a higher court, this is not a consideration. I would agree that if she were sitting in a lower court, it would probably be best practices for her to recuse herself when it comes to the president, as he could try to show her bias affected the case when it went to a higher court. To be fair, if Obama had been spouting the same sort of islamophobic nonsense that Trump has been spouting, she would probably have a dim opinion of him as well. And it would be just as sensible to use his islamophobic statements to the press to show that there is a non-neutral intent to the “ban” ---
**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, 9:59pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/120 "2017-06-06T21:59:09Z")
> [@Okrahoma](#): > > Neutral judges ignored the plain meaning of Obama’s and his administration’s statements that the health care mandate was not a tax, and ruled that it is a tax. So what? Obama being wrong on what constitutes a “tax” is hardly the same thing as a public announced intent. [Previous page](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237.md?page=5) [Next page](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237.md?page=7)