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Recusing The Notorious R.B.G.

Ruth Bader Ginsburg did not think highly of Donald Trump as a candidate, and it’s probably a safe guess that she doesn’t think highly of him as a president. But does that mean the Supreme Court’s longest-serving liberal justice ought to recuse herself from cases involving his policies?

To ask the question is tantamount to answering it: Of course not. And the dozens of Republican lawmakers who argue otherwise are either being foolish or demagogic to contend otherwise.

Fifty-eight congressional Republicans, led by Rep. Ron DeSantis of Florida, wrote a letter to Ginsburg requesting that the justice recuse herself from Trump v. International Refugee Assistance Project, the case centering on the president’s executive order establishing what is popularly known as the “travel ban.” The Supreme Court this week said it would review a pair of lower court rulings blocking the order’s implementation and would allow its provisions to take partial effect in the meantime.

DeSantis shared the letter on his website and his Facebook page, where it triggered a debate about the argument’s merits. The letter claims that Ginsburg’s public remarks about her opposition to Trump mean that her recusal in the case is “required by law” and that her refusal to do so would “undermine the credibility of the Supreme Court of the United States.”

Ginsburg’s remarks on Trump the candidate were certainly, as she later said, “ill-advised.” In a series of interviews last summer, she moved from preferring not to contemplate the possibility of a Trump victory to outright calling him a “faker” and criticizing his inconsistency. Ginsburg’s comments made her look like what she has become on the high court: an ideological crusader who is governed less by legal or constitutional principles than by the policy outcomes she deems to be correct. Or that’s my opinion, anyway.

There are many others on the other side of the political spectrum who would say the same about Justice Clarence Thomas or the late Justice Antonin Scalia. I might be inclined to argue otherwise, but the conservatives’ approach to Bush v. Gore pretty much took that option off the table. So let’s agree that all Supreme Court justices are human, that we expect them to at least try to rise above their personal preferences and prejudices when they do their job, and that some succeed more reliably than others.

The expression of a personal prejudice is not any sort of rational basis for recusal. Why attack the “Notorious R.B.G.” (a term embraced at least as much, if not more, by her admirers as by her critics) for merely saying out loud what we all presume her fellow Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor were thinking? Impolitic honesty is not a basis for recusal.

Ginsburg is an American citizen who has served on the Supreme Court since 1993. She has no known personal stake in the litigation over Trump’s executive order on immigration, nor could she have played any role in developing or pursuing that litigation. Those would be the proper and necessary grounds for recusal. Even then, in the case of a Supreme Court justice, recusal is a decision for that justice alone. The one attempt by Congress to legislate on that issue would, if challenged, almost certainly be struck down for violating the Constitution’s separation of powers.

Personalizing a policy dispute and then attacking the person rather than the policy choice is, of late, primarily a tactic of Democrats and others on the political left. Republicans, at least those in high public office, have largely left it behind since the ugly days of the Bill Clinton administration. I would argue that even last year’s campaign focused primarily on what Hillary Clinton had done in office and what she proposed to do in the White House.

The congressional demands for Ginsburg’s recusal are an unworthy backslide into that nasty past. Let Ginsburg be Ginsburg; that’s who she is going to be anyway. Supreme Court appointments are for life, or at least until the confirmed appointee steps down. This is how our system works. Deal with it by winning elections, as the GOP did last year, rather than by pointless personal attacks. Let’s at least have one party that behaves the way adults should.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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