My favorite conservative commentator on legal and judicial ethics has been filling my (and not I assume just my) inbox with emails arguing that Justice Ginsburg must recuse herself from the same sex marriage case. The latest cites a NYT column by Gail Collins, now online, scheduled for Sunday.
"There She Goes Again
By Ed Whelan — February 20, 2015
"Ginsburg is planning to be on the bench when the Supreme Court decides mammoth issues like the future of the Affordable Care Act and a national right for gay couples to marry. She says she doesn’t know how the health care case will turn out. But like practically every court observer in the country, she has a strong hunch about which way gay marriage will go: “I would be very surprised if the Supreme Court retreats from what it has said about same-sex unions.”
"As I pointed out in my NRO essay yesterday, Justice Ginsburg used to understand that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might vote” and that violating that obligation “would display disdain for the entire judicial process.” But she is now publicly advertising both how she will vote (“every court observer in the country” sees her as part of any majority striking down state marriage laws) and how she expects the Court as a whole will decide the pending marriage cases.
"It’s scandalous that (to borrow from the end of my essay) she, unlike Justice Scalia in the Pledge of Allegiance case a dozen years ago, evidently isn’t “intellectually honest enough” to recognize that she is obligated to recuse herself."
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Ed's reference to the Pledge case:
In 1993, Scalia recused himself from the then impending case -- which asked if the reference to God in the Pledge was a violation of the First Amendment -- after he (i.e., Scalia) made a spontaneous comment during a speech:
"The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done."
So, is RGB talking too much? Is what she said to Collins over the recusal line?