July 12, 2016

MAKING A CONSTITUTIONAL CRISIS MORE LIKELY: Slate: RBG Just Risked Her Legacy to Insult Trump. “To be clear, what Ginsburg is doing right now—pushing her case against Trump through on-the-record interviews—is not just unethical; it’s dangerous. As a general rule, justices should refrain from commenting on politics, period. That dictate applies to 83-year-old internet folk heroes as strictly as it applies to anybody else who dons judicial robes. The independence of our judiciary—and just as critically, its appearance of impartiality—hinges on a consistent separation between itself and the other branches of government. That means no proclamations of loyalty to any candidate, or admissions of distaste of any other.”

Related: James Taranto: Travesty of a Justice: Ginsburg traduces judicial norms.

Ginsburg’s comments about Trump, which were somewhat vague if you read them closely, were less objectionable than many of the other things she said in the same interview. She also damned the Senate for declining to take up the high-court nomination of Judge Merrick Garland: “ ‘That’s their job,’ she said. ‘There’s nothing in the Constitution that says the president stops being president in his last year.’ ”

That’s literally true, but there’s also nothing in the Constitution that says the Senate stops being the Senate under any circumstances. Ginsburg is making a one-sided political argument and framing it as a constitutional mandate. Which, come to think of it, isn’t that different from her approach to jurisprudence. National Review’s Ed Whelan offers a backhanded compliment: “Let’s give her credit . . . for exposing, once again, how nakedly political she is.” We should note that by contrast, we were totally sincere in crediting her for going with New Zealand rather than Canada.

It gets worse still. Liptak asked Ginsburg if there are “cases she would like to see the court overturn before she leaves it.” Her answer: “I’d love to see Citizens United overturned.” In that 2010 First Amendment case, the Federal Election Commission unsuccessfully claimed it had the authority to criminalize the distribution of a film critical of Hillary Clinton, whom Ginsburg has now implicitly endorsed for the presidency.

She also told Liptak that District of Columbia v. Heller (2008), which established that the Second Amendment’s guarantee of the right to keep and bear arms guarantees the right to keep and bear arms, was “a very bad decision,” adding (in Liptak’s words) “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” Lipsky reports that “the Times . . . seemed to want to protect Ginsburg from the fallout from this error of judgment, deleting it from the article until sharp-eyed readers called out the paper and the lines were restored.”

There’s no indication that Liptak asked Ginsburg if she also has designs on the Third Amendment. But if you wake up one morning and find a strange soldier on your couch, don’t say we didn’t warn you.

And that’s not all, folks. Ginsburg went on to reveal confidential information about the court’s deliberations during the term just ended. She disclosed how the late Justice Antonin Scalia voted in two cases on which the court deadlocked, and she asserted that Justice Elena Kagan would have joined the 4-3 majority to uphold racial discrimination in Fisher v. University of Texas , from which Kagan recused herself. “If Justice Kagan had been there, it would have been 5 to 3,” Ginsburg asserted.

So, to sum up: Ginsburg, in an on-the-record interview, took political positions on the presidential election and a Senate confirmation, indicated that she intends in future cases to vote to curtail constitutional rights, and violated the secrecy of the Supreme Court conference room.

Trump is terrible because he shoots his mouth off and has no respect for the sanctity of our institutions, so watch me as I shoot my mouth off and demonstrate no respect for the sanctity of our institutions.

Trump critics call him a dishonest clown. One reason Trump has done as well as he has is because a lot of people think our institutions are already run by dishonest clowns.

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