RBG on the BBC

Justice Ruth Bader Ginsburg recently gave an extensive interview to the BBC’s Razia Iqbal, of which a two-minute clip has already been posted. Predictably, the excerpt highlights Ginsburg’s controversial observations on the impending Trump impeachment. There was a time when SCOTUS justices took pains to avoid commenting on public issues, but those days are long past. Justices across the spectrum have been interviewed on shows such as 60 Minutes. Even so, one might have expected RBG to avoid discussing President Trump, given her inappropriate remarks about him during the 2016 election, for which she later apologized. I criticized her for that here and here.

Writing at the Volokh Conspiracy, Josh Blackman says that the current interview is deeply problematic, but I think there is a more benign interpretation. Ginsburg, for the most part, actually tried to avoid saying anything substantive. Josh’s post included his rough transcript of the interview (which I confirmed and slightly refined), followed by his comments. I will add my own thoughts below.

[Responding to a question was asked about whether a member of the Senate, sitting in an impeachment trial, should be impartial.]

Ginsburg: The House indicts, and the Senate tries. Should a trier be impartial? Of course, that's the job of an impartial judge.

[Applause]

Iqbal: You will be very aware that there are Senators who are already saying before the impeachment gets to the Senate or the trial in the Senate. They've already made their minds up. That's problematic.

Ginsburg: Well if a judge said that, a judge would be disqualified from sitting on the case.

[Laughter and applause]

Iqbal: But it's about the level of accountability. So if a Senator says I've already made my mind up and the trial doesn't even exist at the moment, there is no accountability is there?

Ginsburg: My old Chief, Chief Justice Rehnquist put it very well. He said, "The day a judge stops being impartial, and starts to do things to please the home crowd, whatever your home crowd is, that's the day that judge should step down from office."

***

Iqbal: What's your reading of the Constitution in the context of the President of the United States saying that the Supreme Court of the United States should stop this impeachment. Is there a reading that you can present–

Ginsburg: Well the President is not a lawyer, he's not law trained.

[Ginsburg pauses while there is laughter and applause]

***

The video cuts off. WWD offered this fuller account of of Ginsburg's remarks:

"The president is not a lawyer," Ginsburg replied. "He's not law-trained. But the truth is, the judiciary is a reactive institution. We don't have a program, we don't have an agenda. We react to what's out there."

Josh thinks Justice Ginsburg “exercised terrible judgment in this interview [because] there is no reason for Ginsburg to inject herself into debates about whether Senators should be disqualified.”

I read it differently. Ginsburg was careful to speak only of judges, not senators, and it is axiomatic that judges must withdraw from a case if they cannot be impartial.  Josh is also concerned that Ginsburg has “weighed in on a divisive constitutional question,” but that seems wrong, too. Recusal in the senate is virtually certainly a non-justiciable political question, and therefore it will not come before SCOTUS. Whatever the Walter Nixon v. United States case said about the possibility of judicial review of impeachment trials – which was less, in my opinion, than Josh claims – the opinion definitely did not say suggest authority over the potential disqualification of senators.

Josh finds the second quoted remark “even more troubling” because “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.”

Seriously? Wasn’t it really more of a deflection than an insult?

Josh then asserts that Ginsburg was wrong to question Trump on the merits, because Walter Nixon v. U.S. “left open at least three circumstances in which courts could review an impeachment” (and Alan Dershowitz has suggested others.) I think that Josh has over-read the Walter Nixon case, but let’s assume he is right. Trump, however, called for SCOTUS to “stop the impeachment.” There is certainly no hint in Walter Nixon that the Court can enjoin an impeachment trial before it has even started.

So Ginsburg was actually right when she explained that “the judiciary is a reactive institution” with no ability to step into a pending impeachment trial. An explanation of the Court’s role was not improper in the circumstances.

Three final points:

First, I agree that the senators are not a jury and should not be held to a juror’s standard of naïve objectivity, as I wrote here.

Second, I also agree that Ginsburg had no business denouncing Trump during the 2016 election.

Finally, some readers may be interested to know that I testified before the House Judiciary Committee in the Walter Nixon impeachment, though not on any issue relevant to the Trump impeachment.

Comments

[anon]

As usual, people who fawn over this justice read her every utterance as an awe-inspiring bit of divine wisdom.

Her remarks, quoted above, border on being daft.

For once, I agree with Lubet. She didn't answer the questions, except, with that snarky way of hers, by implication.

Before someone gets hysterical and accuses me of being out of line calling her revered self "snarky" notice the editorial comment in the "transcript": "Ginsburg pauses, and smirks ..."

THis is what the hateful leftists love about her. She's often quite nasty.

[MM]

As the post noted, the transcript’s imdication that she smirked was an interpolation by Josh Blackmon. Not sure on what basis he claimed it.

As for “leftiists” loving RBG i wonder how wide your circle is. Anyone who cares about criminal justice isn’t a fan and most people on the left i know think she should have stepped down in 2013.

[anon]

Well, come to a law school where she is speaking and watch the reaction. Rock star. Most in legal academia are leftists; it is fair to say radical leftists, as their views are often extreme and as far out of the mainstream as one could imagine. They love her.

Further, who do you think calls her the "notorious RBG"? Trump supporters? MM, how wide is your circle?

Further, IMHO, with some notable exceptions, her opinions are mediocre, at best. But, that doesn't deter the adulation.

Finally, as to whether she should have stepped down: this is just a symptom of leftists in the bubble. These folks, as radical as they are, would sacrifice any principle, any person, anything, to get what they want: Power.

They might throw her under the bus without hesitation, but, in her presence, they act like excited teenagers, worshipping an idol.

[MM]

Oh please. The whole idea that leftists are without principles and only interested in power in an age of the federalist society is a joke. Most law professors are basically liberal and not particularly extreme. As for notorious RBG it started as a joke and is a silly term. Nor was wanting her to step down a matter of the desire for power but the protection of principles.

[anon]

Of late, leftists seem unable to understand that it can be "both and" and not always "either or" ... e.g. "if you say Ukraine interfered you are saying Russia didn't." Just faulty reasoning, based on zealotry and anger. Pointing to "federalist" proves just what about leftists adherence to principles and their hunger for power and control? The joke is the belief that throwing out the term "federalist" could win an argument on the merits about the lust of leftists for power and control.

Which leads directly to the reason that leftists wanted RBG to resign. "Nor was wanting her to step down a matter of the desire for power but the protection of principles."

Which principles, exactly?

As for the legal academia, again, in the bubble you think it is "liberalism" that prevails. That says it all, really.

[Hanuman]

Judicial temperament:
Pre confirmation : of course.
Post confirmation : Bah, humbug. Are you kidding. Did you like my acting?

[anymouse]

Trump will nominate her replacement on the Court.

[anon]

Anymouse

And for that, he will be again impeached.

Of course, the present zealots and fanatics who lead the House believe they can stack up impeachments like tinder, and never send these matters to the Senate for trial.

Accordingly, we will have a government that is fully anti Constitutional, just like Wilson and his progressive legatees have always wanted.

And, btw, for those who think holding a nomination to the SCOTUS until the next election was similar, I would say it was equally anti Constitutional, but, not in keeping with the overall ideology of nullifications for which the progressives regularly advocate.

[anymouse]

anon - Has Trump even been impeached? The esteemed Professor Feldman of Harvard claims that Trump is not impeached until the articles are sent to the Senate. It does seem to me that we have to address the following conundrum: either Trump is impeached, in which case the Senate has full authoritiy over the trial or the Senate does not have authority to start the trial in which case Trump is not impeached.

The House can't even impeach properly. If this is supposed to convince more Americans that this whole process was necessary and urgent, it sure is a strange tactic.

[anon]

anymouse

Good question. I read the text briefly the other day. The House has sole power of impeachment and has impeached.

The Senate has the sole Power to try ALL Impeachments, not just those "transmitted to it" by the House.

Where is the provision that requires that the House transmit the articles of impeachment to the Senate? Not there?

L. Tribe states:

"The House, whose sole power is to prosecute articles of impeachment after exercising its "sole" power of impeachment, is under no affirmative constitutional obligation to do so instantly."

The "so" in that sentence is "prosecute" ...?

Upon what possible basis is Tribe's argument about "prosecution" post impeachment based?

[OCInsider]

“Ginsburg was careful to speak only of judges, not senators.”

No. She was not drawing a “careful” distinction but making an obvious analogy. Otherwise her comments are a non sequitur. The audience got it. They laughed at the implications of her analogy rather than sat stone faced and perplexed at her failures to address the questions.

Your benign interpretation manifestly fails. The Notorious RBG is living proof that CJ Roberts beclowned himself when he said there are no Clinton or Trump judges.

[r]

My take is that the Constitutional requirements for impeachment have been met and the Senate could hold the trial whenever they decide with or without transmission of the Articles. However, Senate rules (not the Constitution) require the transmission of the Articles, and the Senate is less willing to break its own rules than the House (e.g., rule requiring a minority day of hearings, which was skipped over the minorities' objection because speed was so important - at that time).

With respect to Ginsburg's statements, I couldn't tell if she was trying to deflect or making a rather daft political statement. I respect here greatly and so presume that she was just awkwardly deflecting the question. She is much too smart to expect that Republicans and Democrats in the Senate could ever sit with the impartiality of Judges. Even if they wanted to, each and everyone has conflicts of interest that would obviously disqualify any Judge or Juror, including the fact that many Senators are currently running for President and would very much personally benefit from Trump's removal (and have vocally supported impeachment). How anyone could expect even token impartiality in this environment is beyond me. And any Senator who says they are being impartial is a liar.

[anon]

r
I agree with you that "Senate could hold the trial whenever they decide with or without transmission of the Articles." There is no requirement in the Constitution to "transmit" or "present" the articles the Senate.

IMHO, this is the reason that some ultra left scholars are arguing to hold the articles, suggesting that an impeachment is not "complete" until transmitted.

This is to avoid, again IMHO, the obvious conclusion: upon impeachment, the House lost jurisdiction and the sole power now resides in the Senate.

The Senate rules can be amended, of course, just as the House was constantly revising its rules during the "impeachment" proceedings to strip away any pretense of fairness.

The hypocrisy award yesterdays goes to the Dem. Senator who said, in so many words, "How can a proceeding be fair if one of the parties can't call witnesses?"

LMAO.

[romanette]

Re effect of not transmitting articles of impeachment: Just like legislation does not go from one house to the other automatically on approval, the same is true of articles of impeachment -- the clerk and/or speaker have to sign it. In addition, according to the Rules, the House managers present the articles, the Senate sets a date and summons the impeached officer and the House managers to appear for the trial. The House managers present the case. This is not so different from the way the President is invited to address a joint session of Congress.

Re the notorious RBG: She is quite amused by this and uses it for deflection a lot. She does not seek notoriety, she is quite above it all.

Re Senators who have already stated that they cannot/are not going to behave in accordance with their oath: Under the Senate Rules, it is possible to challenge the credentials of a Senator; one asks the presiding officer to refrain from administering the oath and then the Senate decides "the qualifications" of the presumptive Senator-elect. There is no reason why a similar challenge could not be pursued in relation to impeachment.

Re Josh: Remember we are talking about Volokh Conspiracy, any relationship to reality is purely coincidental.

[anon]

"Just like legislation does not go from one house to the other automatically on approval, the same is true of articles of impeachment

Ahh, but, this is not legislation. THe Constitution is very clear that the Senate has the sole power to try impeachments. Either the House impeached, or it didn't. If it did, then the sole power to act on the impeachment belongs to the Senate and there is no requirement in the Constitution to "present" the articles, appoint managers or anything else. House rules are irrelevant. As stated above, the Senate can, just as the House did, amend its rules as it sees fit. Given the truly crude and blatantly partisan way the House conducted its impeachment, by, among other things, repeatedly changing its rules to cram thru the impeachment, Democrats are in no position now to complain about ANY process the Senate adopts.

"she is quite above it all"

Wow. One of her acolytes might so say, but the rest of us are not that oblivious: have you ever seen RBG beaming with pride whenever the term "notorious RBG" is used in her presence? Moreover, is it being seriously stated that she does not seek notoriety?

Re: Re Senators who have already stated that they cannot/are not going to behave in accordance with their oath"

You must be referring to all the Democratic Senators who have declared the guilt of the accused. See, NYT, a few days ago, listing the positions of the Democratic Senators who have declared the "guilt" of the "Defendant." (They, of course, are neither judges nor jurors, and specious facile attempts to say they are as risible as the attacks on the Republicans who say they have seen no proof of an impeachable offense.)Does the commentator seriously contend that Democratic Senators running for President against the impeached are "impartial" or that Sanders, Harris, Booker, Hirono, Merkeley, etc. are "impartial" given their statements that suggest prejudgment of the case?

"Re Josh: Remember we are talking about Volokh Conspiracy, any relationship to reality is purely coincidental."

Pure projection, as demonstrated by the wildly inaccurate characterization of RBG above.