The last thing we need – with only eight justices on the Supreme Court and the Senate refusing to even hold hearings to confirm a ninth justice -- is a justice making herself vulnerable to calls for her recusal from cases involving Mr. Trump. Regardless of what polls say, the election could be close, and we all know what could happen if it is. Bush v. Gore (2000).
Furthermore, if Trump were to be elected, we would have a president who has already promised extreme and unconstitutional measures. The Court – all nine justices or at least eight – must be above reproach and be ready to stand up to authoritarianism. Issuing orders is not enough; the Court must have the moral authority to persuade the public, and the other branches of government (including the military officers for whom the President is Commander in Chief) that in matters of constitutional interpretation the Court has the final word.
I don’t believe a recusal motion aimed at Justice Ginsburg would be justified and Justice Scalia was just as provocative with his words on many occasions before he passed. But Mr. Trump will call for the recusal of judges at the drop of a hat. We live in difficult – and potentially dangerous -- times and the Supreme Court justices need to stay focused on their role in defending our republic.
America is not interested in hearing Justice Ginsburg’s opinion about Trump unless and until she gets a sufficient number of her colleagues to agree with her in a case where their opinion matters. Hopefully there will never be such a case, but if there is she must be ready to deal with it.