photo courtesy the European University Institute
If Napoleon ever expressed regret for his invasion of Russia, it would have been for reasons similar to those of Supreme Court Justice Ruth Bader Ginsburg when she regretted her “ill-advised” criticism of Donald Trump.
It is regret not for an attack on a perceived enemy; it is merely regret because the attack was a tactical error that did more harm to the attacker.
Ginsburg created a stir when she spoke critically of Trump in a series of media appearances, first with the Associated Press, and subsequently with The New York Times and CNN. In the first two, she simply said she preferred not to consider the possibility of Trump winning the White House. When speaking to CNN, Ginsburg went further, calling the candidate a “faker” and criticizing his ego and inconsistency.
Trump, in his usual style, took to Twitter to respond acerbically, calling on Ginsburg to resign. But it was not only the presumptive Republican nominee and his supporters who felt Ginsburg overstepped. The editorial boards of both The Washington Post and The New York Times criticized the justice’s remarks – this from one publication that Trump himself “fired” and another with a long track record of reporting and editorializing with a pronounced slant leftward.
There is no law that prevents a Supreme Court justice from commenting on a presidential campaign, and Ginsburg is hardly the first to violate the traditional barrier between the high court’s bench and the executive branch. But the reactions to her remarks among those who share her politics, as well as those who do not, demonstrate one reason that it is generally understood justices will keep their distance from the presidential selection process.
Yet for all this, Ginsburg’s apology was really for having been honest and open about what she thinks and feels. “On reflection,” she said in a written statement, “my recent remarks in response to press inquiries were ill-advised, and I regret making them.” In other words, she did not apologize because she did not wish to stand by what she said. Rather, she apologized because she belatedly recognized it is unseemly for judges to speak their minds regarding candidates for office.
That’s the small deal. The big deal is that Ginsburg is pursuing an ideological and political agenda in which she believes the ends justify the means.
Her remarks about Trump are certainly not the first indication of this stance. It is also why she called on the state of Montana to disregard Citizens United, an existing precedent established by her own court – something she would never have tolerated if a state chose to disregard, for example, Roe v. Wade. While the Montana incident occurred in 2012, Ginsburg’s feelings have not changed; when the Times asked her if there were a case she wished she could see overturned before she retired, she named Citizens United without hesitation.
Those who oppose Citizens United do so largely based on two faulty pieces of logic. First, the unproven premise that money automatically buys success in politics – a proposition to which both the success of Trump and the longevity of Bernie Sanders’ campaign against Clinton stand in stark opposition this year. Second, the unconstitutional proposition that it is OK for the government to tell individuals or groups, even when they organize into corporations or labor unions, what they may say about a politician and when they may say it.
On that latter point, at least, we can give Ginsburg some credit for consistency, because she seems to have belatedly acknowledged that it is at least as bad for a sitting justice to attack a political candidate as for a corporate group like Citizens United to do the same. But her apology misses the mark. It is not the fact of the attack itself that creates the problem. It is the appearance, by means of the attack, that the justice is pursuing personal political goals rather than the goals expressed in the words of the Constitution and of the statutes and regulations created under color of its authority.
The problem is not what Ginsburg said about Trump as such. It is that by saying it, she again demonstrates that she is willing to use her position to advance her personal political preferences. It is not just that Ginsburg opposes Trump; it is that she opposes everything he stands for and that she believes her position on the Supreme Court is her personal property to be used to further that opposition.
As a citizen and a voter, Ginsburg has as much right to her opinions as any of us. But the AP, the Times and CNN were not asking for her opinion as a citizen. They were asking for it as a justice. What Ginsburg now regrets is that she was honest about how she views her role on the bench: a starkly partisan one.