# 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:** 8
**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 7, 2017, 3:36am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/141 "2017-06-07T03:36:59Z")
> [@Okrahoma](#): > > If we know about that oath, then it’s **public** , isn’t it? Then the oath would definitely be grounds for recusal. > > If it is not public, then how do you know about that oath? not surprisingly - went rigth over your head. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 7, 2017, 4:01am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/142 "2017-06-07T04:01:55Z")
I’d feel better about pushing for Ginsburg to recuse herself if folks like **Okrahoma** felt justice Thomas should likewise recuse himself. Travel Ban: [https://www.usnews.com/news/politics/articles/2017-02-16/will-clarence-thomas-have-to-recuse-himself-from-supreme-court-cases-involving-trump](https://www.usnews.com/news/politics/articles/2017-02-16/will-clarence-thomas-have-to-recuse-himself-from-supreme-court-cases-involving-trump) Healthcare: [http://theweek.com/articles/487366/should-justice-thomas-recuse-himself-from-health-care-reform-ruling](http://theweek.com/articles/487366/should-justice-thomas-recuse-himself-from-health-care-reform-ruling) Monsanto case: [Justice Clarence Thomas and Monsanto | The Progressive Cynic](https://theprogressivecynic.com/2013/07/15/justice-clarence-thomas-and-monsanto/) This is not to say two wrongs make a right. It is to say I would like to see **Okrahoma** tell us if Thomas should also recuse himself or why it is that Ginsburg should do so but not Thomas. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 7, 2017, 4:03am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/143 "2017-06-07T04:03:38Z")
> [@Whack-a-Mole](#): > > It is to say I would like to see **Okrahoma** tell us if Thomas should also recuse himself or why it is that Ginsburg should do so but not Thomas. If it was Ginsburg’s husband ranting against Trump, I would not call for her recusal. My wife also holds some political views I don’t necessarily agree with. I wouldn’t want to be judged (heh) based on that. And in the third case, that was almost 50 years ago, FCOL. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 7, 2017, 4:15am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/144 "2017-06-07T04:15:55Z")
> [@Okrahoma](#): > > If it was Ginsburg’s husband ranting against Trump, I would not call for her recusal. My wife also holds some political views I don’t necessarily agree with. I wouldn’t want to be judged (heh) based on that. It is not merely that his wife has a different opinion. They have a financial stake in these things and as a couple their finances are intertwined. ---
**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 7, 2017, 4:21am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/145 "2017-06-07T04:21:31Z")
> [@Okrahoma](#): > > And in the third case, that was almost 50 years ago, FCOL. It was? 1976 was 50 years ago? :dubious: Or is it 2010 that was 50 years ago? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 7, 2017, 4:33am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/146 "2017-06-07T04:33:11Z")
> [@Okrahoma](#): > > And in the third case, that was almost 50 years ago, FCOL. You are not good at math not to mention the cases were actually fairly recent (within the last seven years). That aside please tell me how many years must pass before the line is drawn? ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 7, 2017, 4:44am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/147 "2017-06-07T04:44:30Z")
> [@Whack-a-Mole](#): > > That aside please tell me how many years must pass before the line is drawn? I would say right around 20 years. I don’t even remember who I worked for 20 years ago. They blur together. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [June 7, 2017, 4:53am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/148 "2017-06-07T04:53:32Z")
> [@Whack-a-Mole](#): > > It is not merely that his wife has a different opinion. > > They have a financial stake in these things and as a couple their finances are intertwined. Let’s see: > **[House Democrats Call On Justice Thomas To Recuse Himself From Heathcare...](https://www.outsidethebeltway.com/house-democrats-call-on-justice-thomas-to-recuse-himself-from-heathcare-litigation/)** > > House Democrats are calling on Justice Clarence Thomas to recuse himself from any litigation regarding the Affordable Care Act. It's a phony argument, but that's because it has everything to do with politics and nothing to do with legal ethics. “The only way that Justice Thomas would be required to recuse himself under this canon would be if his wife has a fiduciary interest of some kind in the outcome of the litigation or if she falls under one of the provisions of subsection (d). The fact that she may be affiliated with a Tea Party group that has taken a position on the Affordable Care Act is not, in and of itself, sufficient to meet the requirements of Canon 3(C)(1), and anyone with a modicum of training in legal ethics would know that.” The EO case - can you show me any “financial stake” that Ginny Thomas has in the outcome? ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [June 7, 2017, 8:26am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/149 "2017-06-07T08:26:09Z")
Still waiting for a response on Scalia not recusing himself from the Cheney case despite being close friends with - and receiving gifts from - Cheney and his family. ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [June 7, 2017, 9:02am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/150 "2017-06-07T09:02:19Z")
> [@Ravenman](#): > > Ginsburg did indeed vocalize that Trump is a clown, though in slightly nicer terms. That a substantial majority of the American people also believe this may or may not be relevant. I think there’s a substantial chance that Roberts also thinks Trump is a clown, though he has not said so. But again, I’m left wondering - let’s say Clarence Thomas said, “The KKK are a bunch of murderous, hateful thugs, deserving of our contempt and hatred,” or something to that effect. Then, for some bizarre reason, a case involving the KKK, or a KKK member, came to the supreme court. Should he recuse himself? Or is it not to be taken as a given that people think the KKK is fucking awful? In my eyes, this: > [@](#): > > “He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “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.” …is just as blatantly obvious. And indeed, if anything, her statements have been entirely vindicated post-election. Trump was a fucking abysmal candidate and is a fucking abysmal president. Her statements about Trump belong in the same category as a judge pointing out how intellectually dishonest creationists are or how shitty the KKK is - things that are blatantly obvious and not cause for recusal in cases. And now consider the additional context of the 2016 election… > [@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. It’s perhaps worth noting that at the time, Trump’s party had run out the clock on Obama’s nominee, abdicating their duties with regards to the court and politicizing the process to an entirely unprecedented degree (Say ‘Bork’ again, I dare you, I double dare you motherfucker, say Bork one more Goddamn time!). This was also not long after [Trump asked a judge to recuse himself for being of mexican descent](http://www.politico.com/magazine/story/2016/06/donald-trump-2016-judge-gonzalo-curiel-attack-213946), which is [reasonably interpreted as an attack on the judiciary](https://www.theatlantic.com/politics/archive/2016/06/the-gop-front-runner-takes-aim-at-the-independent-judiciary/485087/). I’d say these are relevant to keep in mind. Trump the candidate was attacking the judiciary on personal grounds, while Trump’s party was attacking the legitimacy of the judiciary by politicizing it in disgusting ways. For a member of the supreme court to speak up about it, to voice her opinions on the candidate (opinions easily supported by looking at the actual facts), should not be seen as unreasonable. ---
**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 7, 2017, 10:10am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/151 "2017-06-07T10:10:11Z")
> [@Okrahoma](#): > > What “punishment” do you think I am advocating for Ginsburg? Take three guesses. I bet you can figure it out. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2017, 11:16am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/152 "2017-06-07T11:16:04Z")
> [@Falchion](#): > > Sure, but an appellate judge attempting to determine the “intent” behind a statute (or executive order) and asking whether it “drips” with any particular motive is, fundamentally, engaging in fact finding (whether we want to call it that or not). I cannot imagine an opinion striking down the immigration order that does not delve into what Trump said (before and after he was President); what he meant; what he really meant by the order; and generally do the type of factual/credibility determination that is more typical for trial judges. That’s not often going to be the case in appeals, but it is here. I don’t think there’s much argument that she should recuse for all cases involving the government, but I think the immigration order case is a much closer call. Well, yes, in cases of temporary orders, the appellate judges must engage in threshold factual determinations. Those are limited in effect; the trial will ultimately transform the stay into a permanent ban or dissolve it, and then appellate review will be deferential to the trial court’s findings. Here, though, the biggest question is one of law: can Trump’s candidacy statements even be considered? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2017, 11:39am UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/153 "2017-06-07T11:39:04Z")
> [@Whack-a-Mole](#): > > I’d feel better about pushing for Ginsburg to recuse herself if folks like **Okrahoma** felt justice Thomas should likewise recuse himself. > > Travel Ban: [https://www.usnews.com/news/politics/articles/2017-02-16/will-clarence-thomas-have-to-recuse-himself-from-supreme-court-cases-involving-trump](https://www.usnews.com/news/politics/articles/2017-02-16/will-clarence-thomas-have-to-recuse-himself-from-supreme-court-cases-involving-trump) > > Healthcare: [Should Justice Thomas recuse himself from a health care reform ruling? | The Week](http://theweek.com/articles/487366/should-justice-thomas-recuse-himself-from-health-care-reform-ruling) > > Monsanto case: [Justice Clarence Thomas and Monsanto | The Progressive Cynic](https://theprogressivecynic.com/2013/07/15/justice-clarence-thomas-and-monsanto/) > > This is not to say two wrongs make a right. > > It is to say I would like to see **Okrahoma** tell us if Thomas should also recuse himself or why it is that Ginsburg should do so but not Thomas. As a reminder, I do NOT believe RBG should recuse herself. However, the first two cases you mention here relate to Thomas’ wife. A similar argument was used in pushing Judge Reinhardt into recusing himself when the Ninth Circuit considered “Prop 8,” related to same-sex marriage while married to the Executive Director of the ACLU. The ACLU was not a party to the case but had taken many strong positions on the issue of same-sex marriage. Reinhardt wrote: > [@](#): > > Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them. It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads. I agree with Reinhardt, not **Whack-a-Mole** , on this issue. No matter what position we might take on a judge’s direct interests, in other words, I content that in 2017 (as in 2011) the views of a wife regarding issues of public significance are her own, and cannot be imputed to the husband, no matter how prominently she expresses them. And of course in 2017, this is just as true about the views of the non-judge husband being imputed to his judge wife. And though we’re not there yet, it will be true when the judge and his husband are both considered, or the judge and her wife. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2017, 1:00pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/154 "2017-06-07T13:00:50Z")
> [@Bricker](#): > > …in other words, I content that in 2017 … Also, I contend it. ---
**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 7, 2017, 1:06pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/155 "2017-06-07T13:06:26Z")
> [@Bricker](#): > > Here, though, the biggest question is one of law: can Trump’s candidacy statements even be considered? Why should they not be? I can’t think of a single reason why. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 7, 2017, 1:27pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/156 "2017-06-07T13:27:48Z")
> [@Ravenman](#): > > Why should they not be? I can’t think of a single reason why. Because a candidate tells lies to get elected. Those lies are sound-bite campaign slogans, not serious deliberations of policy. That’s true for any candidate, and triply so for Trump. “It’s not a tax,” is a good non-Trump example. Obama’s claim was a political necessity, not a sober analytic of the necessary power Congress would need to impose the ACA mandate. ---
**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 7, 2017, 1:43pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/157 "2017-06-07T13:43:25Z")
> [@Bricker](#): > > Because a candidate tells lies to get elected. Those lies are sound-bite campaign slogans, not serious deliberations of policy. > > That’s true for any candidate, and triply so for Trump. > > “It’s not a tax,” is a good non-Trump example. Obama’s claim was a political necessity, not a sober analytic of the necessary power Congress would need to impose the ACA mandate. Seems to me like Trump’s or Obama’s lawyers then simply need to argue that this particular campaign promise was not made in sincerity, as opposed to establishing a general rule that what politicians say during a campaign is presumed to be so prejudicial that it cannot even be considered by a court. ---
**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 7, 2017, 1:45pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/158 "2017-06-07T13:45:17Z")
> [@Ravenman](#): > > Why should they not be? I can’t think of a single reason why. I - and others of perhaps higher academic standing - have suggested in the past that floor comments and other public statements from individual legislators should not be considered when courts attempt to divine what the legislature intended when passing a law. That’s because the views of individual legislators do not necessarily bear any resemblance to those of other legislators who voted to pass a bill, and may even be in direct conflict with the majority. What’s in the bill is what is in the bill, and if the legislature didn’t make its intent clear that’s their tough luck. After all, if a court of law can’t determine the intent then it’s hardly fair to expect the rest of us to do so.\* By the same token, you could argue that Trump’s public statements about the shutdown of Muslim entry should not be considered. However, the rationale I propose doesn’t hold here because Trump didn’t have to get a bunch of co-presidents to sign off on his executive order; he promulgated it himself. So… I agree with you. \*I have moderated in this view over time, mostly because my job requires me to perform the sort of legislative intent analysis I have derided in the past. ---
**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 7, 2017, 1:53pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/159 "2017-06-07T13:53:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I - and others of perhaps higher academic standing - have suggested in the past that floor comments and other public statements from individual legislators should not be considered when courts attempt to divine what the legislature intended when passing a law. For what it is worth, I sort of agree with this, with the caveat that when the author of a bill speaks to its intent, I would say that’s a reasonable guide to the bill’s intent; as opposed to the author writing the bill and some random congressman not involved with that committee making a statement about his own opinions on the matter. > [@Bricker](#): > > Those lies are sound-bite campaign slogans, not serious deliberations of policy. One question just occurred to me. Is there some kind of policy about claims made in advertisements? To my recollection, if there’s some bold claim in an advertisement about TGI Fridays having the best margaritas anywhere, TGIF can claim that it is puffery, but that advertisements aren’t presumed to be inadmissible as evidence. And as we all know, advertisements aren’t exactly clinical-level evidence. Do I have that right? Seems to me like campaign statements should be treated like advertisements. ---
**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 7, 2017, 2:17pm UTC](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237/160 "2017-06-07T14:17:15Z")
> [@CarnalK](#): > > Right. So if someone publicly announced “I’m going to kill that guy” and the next day he runs the guy over, a neutral judge would ignore that statement. Because we expect our judges to be utter simpletons. > [@Okrahoma](#): > > Bad analogy. Again, a “muslim ban” would ban muslims from immigrating. The EO was not a “muslim ban” no matter what Trump said, since it didn’t do that. > > And claiming that Trump is “islamophobic” is a bit ridiculous, considering the foreign trip he just concluded where he got on pretty well with rulers of countries that are self-proclaimed Islamic. Do you think the judges should take that into account as well (I don’t)? If you note, in CarnalK’s analogy, he did not say that the person run over was killed. So, using your logic, you could not use the words that the person was going to kill the guy when he ran them over, because he didn’t manage to kill the guy. Intent matters, even if you are too incompetent to achieve your desired results. > [@Okrahoma](#): > > If we know about that oath, then it’s **public** , isn’t it? Then the oath would definitely be grounds for recusal. > > If it is not public, then how do you know about that oath? Say the privately made video of them taking the oath were leaked. It wasn’t a public oath, but the oath is known by the public. So, are you saying that such a judge should not recuse themselves, even after the oath has been made public? If they should, didn’t they have the obligation to recuse themselves even before the public learned of their conflict, as they obviously knew about it? [Previous page](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237.md?page=7) [Next page](https://boards.straightdope.com/t/should-ginsburg-recuse-herself-from-cases-involving-trump-administration/788237.md?page=9)