Originally published December 18, 2019 when the impeachment witch hunt was underway.
Justice Ginsburg sat for an interview with BBC host, Razia Iqbal, in which she made disparaging remarks about President Trump, and regarding impeachment said that Republican senators who are not ‘impartial’ should be disqualified from voting. She was playing to an audience that laughed and applauded after each zinger.
Ginsburg has a record of making such inappropriate comments about President Trump. In 2016, she told the New York Times:
“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.”
And she told CNN:
“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.”
Justice Ginsburg exercised terrible judgment in this interview. First, there is no reason for Ginsburg to inject herself into debates about whether Senators should be disqualified. Indeed, her analogy between Senators-as-jurors and judges is a strained one. I agree with co-blogger Keith Whittington: disqualification is not required, even for Senators who have made up their mind. But here, Ginsburg, with the gravitas of a Supreme Court justice, weighed in on a divisive constitutional question. I would not be surprised if some members of the Senate quoted RBG’s remarks to criticize their colleagues neutrality.
The second quoted remark is even more troubling. The interviewer asked about Trump’s tweets that the Supreme Court could get involved in impeachment. How should Ginsburg have responded? “I cannot comment on a matter that could come before the Court.” Instead, she criticized the President’s knowledge about the Constitution. To say “the President is not a lawyer, he’s not law trained” is a gentle way of calling him an idiot–he has no idea what he’s talking about. I would never criticize something a non-lawyer says, because they are not trained in law. Lawyers, and especially judges, could learn a lot from what other people think about the Constitution.
Putting aside the propriety of her remarks, Ginsburg’s snide remark is wrong. Walter Nixon v. U.S. left open at least three circumstances in which courts could review an impeachment. Moreover, Alan Dershowitz wrote in his book that there are additional circumstances in which an impeachment could be reviewed in Court. Agree or disagree with these positions, Ginsburg was rude and arrogant to suggest that Trump’s views should be dismissed due to his lack of legal training.
It gets worse. The Supreme Court will likely have to consider cases that turn on President’s knowledge of the Constitution, and whether he is in fact faithfully executing the laws, or acting for “corrupt” purposes. Now, the Notorious RBG has told us what she really thinks about the President.