Other lawyers and academics are apparently encouraging Justice Ginsburg’s comments, all to the amusement of Mr. Trump who has already called for her to “get off the court as soon as possible.”
The issue isn’t whether Justice Ginsburg has “free speech rights” allowing her to say what she wants about Mr. Trump. Of course she does. The issue is whether she could do great damage to the Court, and potentially to the Country, by saying it.
Trump has publicly called for judges to recuse on the flimsiest of arguments and his lawyers in earlier cases have filed recusal motions against judges that border on frivolous. He clearly has a problem with the idea of judges he disagrees with telling him what to do. And he has already said that because of what Justice Ginsburg has said, she should be off the Court (he is wrong on that).
As voters, we should do what we can to make wise choices and inform our fellow citizens about these choices. But judges have a duty to protect themselves, and the judicial branch, against attempts to undermine the rule of law. Reckless talk about presidential candidates does not further this purpose.
Justice Ginsburg should not be giving Mr. Trump ammunition to demand her recusal from any case, whether it be a contested presidential election or a contested attempt in Cleveland to deny him the Republican nomination or a contested effort to put other candidates on the ballot. If Mr. Trump becomes President, the justices will need to decide cases involving presidential powers. These rulings of the Supreme Court must be beyond reproach. If Mr. Trump is president, we will depend upon other government officials, military and civilian, to uphold the Constitution and respect the Court’s rulings.
Removal and disqualification of judges who don’t support a party line is a first step toward authoritarian government. United States v. Josef Altstoetter et al. Military Tribunal III Council Law No. 10, 1946-1949, Vol. III (1951). Judges and justices should not give such efforts an excuse or a helping hand, particularly when they loom so near.