The case made in the OP could be charitably called “weak sauce” and is not supported by either case law or facts.
Sarcastic comments (which is the worst thing one can say about what Ginsburg said) are not endorsements or opposition. They’re just sarcastic comments.
On the first page of this thread, didn’t you say:
Those were clear and unequivocal statements of opposition. If you can’t see that - I believe that’s just from your partisan blinders.
http://boards.straightdope.com/sdmb/showthread.php?t=827944 - you’re welcome to express that in the vote.
They weren’t clear or unequivocal statements about anything. Read those words again, and tell me what she was clearly or unequivocally saying about anything at all.
By the way, just as a matter of interpretation of the black-and-white text, I understand the “publicly support or oppose” to be in an electioneering context, not a blanket prohibition.
Do you know of any specific cases or interpretations that would demonstrate what the phrase is generally held to mean?
Here’s an opinion of a law professor who literally wrote a book on SC recusals:
He said that “public comments like the ones that Justice Ginsburg made could be seen as grounds for her to recuse herself from cases involving a future Trump administration. I don’t necessarily think she would be required to do that, and I certainly don’t believe that she would in every instance, but it could invite challenges to her impartiality based on her public comments.”
Hellman said Ginsburg’s comments could muddy the waters when it comes to decisions not just involving Trump but also his policies — something that could come up regularly should he win the presidency.
“It would cast doubt on her impartiality in those decisions,” Hellman said. “If she has expressed herself as opposing the election of Donald Trump, her vote to strike down a Trump policy would be under a cloud.”
…
and from another one:
“I think this exceeds the others in terms of her indiscretions,” Whelan said. “I am not aware of any justice ever expressing views on the merits or demerits of a presidential candidate in the midst of the campaign. I am not a fan of Donald Trump’s at all. But the soundness or unsoundness of her concerns about Donald Trump has no bearing on whether it was proper for her to say what she said.”
Here:
the judge that was forced to apologize “profusely” was not “electioneering”.
Very interesting. Was this judge compelled to recuse himself from matters relating to the Bush Administration?
I don’t know - that’s a lower court judge and most probably no cases were before him that related to the Bush administration. But if any such came before him, I believe he’d be required to recuse himself.
Well, good, then.
It appears that the Judicial Council of the Second Circuit found that his public apology, and an admonishment from the Chief Judge, constituted sufficient correction of his violation. In addition, a general claim of political bias against this judge was dismissed.
So I’m back to my first opinion in this thread: seems like Ginsburg should be admonished in some way, and she has already made a public apology for her comments. And back to you, Okrahoma, seems like Ginsburg should be treated just like Calabresi. Why should she be sanctioned more seriously than a judge who compared Bush to Hitler?
So now Okrahoma is making the case that Justice Ginsburg should not have to recuse herself from cases involving the Trump administration?
If so, I’m convinced. Well done, 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.
I’ll point out that I’m not the one that raised this issue. In all the years he was on the court, I never called for Scalia to recuse himself from cases despite my publicly expressed dislike for him. It was the OP who suggested that judges should recuse themselves from cases which involve subjects in which they have personal opinions. And it was Bricker who suggested a Justice which negative opinions about black people might recuse himself from cases involving black people.
I think we should stick with the long established standard that Justices should decide for themselves when they need to recuse themselves.
My posts were intended to demonstrate to the OP and the people like him that they should remember that if they establish a new standard for justices, it won’t just apply to the justices they disagree with.
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.
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.
- yes.
- yes.
Judges should recuse themselves from cases which involve people about whom they have previously and very publicly expressed very strong negative opinions. I should add that their expressed legal opinions in cases they had before them in the past obviously do not count.