Diane talks with Mary McCord, Legal Director at the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center.
Supreme Court Justice Ruth Bader Ginsburg made headlines this week by publicly criticizing Donald Trump. She called him “a faker” who “has no consistency.” And she joked that if Trump were to become president, she might move to New Zealand. Trump fired back with a tweet labeling her comments “very dumb” and calling for her to resign. Today Ginsburg apologized, saying her comments were “ill-advised.” Still, critics of the justice’s behavior—and there are many—say she’s setting a dangerous precedent by taking sides in an election year. But Ginsburg also has many supporters: liberals and conservatives who worry about what a Trump presidency could do to the nation. We discuss the controversy.
- Paul Butler Professor, Georgetown University Law Center; author of the forthcoming book "Chokehold: Policing Black Men"
- Ruth Marcus Deputy editorial page editor, The Washington Post
- Mark Joseph Stern Reporter, Slate.com, covering legal issues
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Ruth Bader Ginsberg ignited a firestorm this week after publically criticizing presumptive GOP presidential nominee Donald Trump. Opinion writers, TV pundits and legal commentators rebuked the Supreme Court justice for what many consider a breach of legal ethics, but others have rallied to support her, calling her courageous for saying aloud what many Americans are thinking.
MS. DIANE REHMJoining me in the studio to weigh in on the controversy, Paul Butler of Georgetown University School of Law, Ruth Marcus of The Washington Post and Mark Joseph Stern of Slate.com. I'm sure many of you have opinions on the issue. You can share them with us at 800-433-8850. Send an email to drshow.wamu.org. Follow us on Facebook or Twitter.
MS. DIANE REHMIt's good to see you all. Thanks for being with us.
MR. PAUL BUTLERHey, Diane.
MS. RUTH MARCUSThanks for having me, Diane.
MR. MARK JOSEPH STERNThanks for having me.
REHMAnd Mark Joseph Stern, why don't you start by reminding us what Justice Ginsberg had to say and in what context?
STERNWell, so after the term ended, Justice Ginsberg agreed to do a series of interviews and she said she was going to recap the term, but it seems that she had more on her mind because in one interview on Thursday of last week, she said that she couldn't imagine a Trump presidency. It was just something she didn't want to put in her mind. The next day, on Friday, in an interview with Adam Liptak of the New York Times, she went further.
STERNShe said, I can't imagine what this place would be. I can't imagine what the country would be with Donald Trump as our president. And then, joked that if he won, she might move to New Zealand. And then, a few days later, talking with CNN's Joan Biskupic, Ginsberg descended even further into punditry, in my opinion, and said that Donald Trump was "a faker" with no consistency about him and then criticized him for refusing to release his tax returns.
REHMSo how did you personally react?
STERNWell, you know, the very first comment she made, I thought, was a little off color, but basically okay. You know, a little jab at Trump and nothing more. But with her second and third interviews, I thought she really went way too far. I think, like I said, this was punditry. This made her look like a talking head in judicial robes and it seemed to be so openly partisan that it would call into question her ability to rule impartially on any case that came before the court involving Donald Trump.
REHMDid she cross an ethical and perhaps an even legal line? What do you think, Paul Butler?
BUTLERNot at all. Let's be clear. Justice Ginsberg violated no law. The judicial cannon of ethics don't apply to the justices. They're called the supremes for a reason. But look, Donald Trump represents a fundamental crisis to our rule of law and to American democracy. It's not politics. Justice Ginsberg didn't criticize George W. Bush, Mitt Romney, John McCain when they ran, but the Donald is different, as many even Republicans have acknowledged.
BUTLERHe's a sexist, racist, demagogue who doesn’t have any kind of ideology other than this anger, this appeal to ethnocentricity or radical ethnocentricity among white people. So those are the marks of a fascist. So the question is, in other regimes when despots have risen to power, what should judges have done? Should judges in Germany in the 1930s been silent while their country descended into hell? So, Diane, this may be the last election during Justice Ginsberg time on the court.
BUTLERI don't think she wants her legacy to be that she was silent in the face of evil.
REHMAnd to you, Ruth Marcus, your views of what she said.
MARCUSWell, I totally agree with the substance of what she said. I am both a Justice Ginsberg fan and a Donald Trump critic. But I think it was a big mistake for her to say it. Paul correctly says that Donald Trump is different, but so, too, are Supreme Court justices different. And I think, as egregious and extreme and as problematic as Donald Trump is for the Republican party and for American democracy, I still do not believe that it is appropriate for a Supreme Court justice to speak out in the way that she did.
MARCUSAnd I think that the analogy to Nazi Germany is not convincing to me. It's certainly true that after the war, lawyers and judges in Germany were tried and convicted for kind of willingly going along with the Nazi regime, but it is a -- there are very many voices, powerful voices, editorial page voices, my own editorial page and others, Republicans, former Republican officials speaking out against Donald Trump. I think it is, A, not necessary for a Supreme Court justice to speak out that way, B, not effective.
MARCUSShe's not actually changing any minds. And, C, causes long term harm both to her and the court because it makes it look like a political institution.
BUTLERThe court is a political institution and everybody knows it. You heard of Bush versus Gore, you heard of Justice Scalia going duck hunting with Vice President Chaney during the same time that there was a case before the court. Look, I don't think people give the American people enough credit when they think that Supreme Court justices don't have political opinions. One of the perks of being a law professor in D.C. is you get to break bread, from time to time, with the justices.
BUTLERAnd guess what, they're all normal people with political opinions just like all of us. I think everybody gets that.
REHMOne of the major questions in my own mind is, and you just mentioned it, Bush v. Gore. Should this year's election come to such a close race, should Justice Ginsberg, if it were to go to the Supreme Court, have to recuse herself because of the comments she's made, Mark?
STERNWell, like Paul said, the justices decide for themselves whether to recuse. They craft their own rules. But I think there would be an immense amount of pressure for Justice Ginsberg to recuse if Trump v. Clinton came to the court this December. And I couldn’t blame the people who were pressing her to recuse. It would be very suspect whether Ginsberg could rule impartially. And just as importantly, it would be questionable whether the people would view her decision as impartial, you know.
STERNOur judiciary derives so much of its power from the idea that it's independent, that it's above and different from the other political branches. I think now that Ginsberg has pushed herself into the political fray, it would be an open question whether she could rule impartially and she might feel compelled to recuse.
REHMAnd what about if Donald Trump were to become president? Would every case that the Trump administration brought before the Supreme Court raise questions about Ruth Bader Ginsberg's impartiality?
MARCUSPeople would use her comments to raise questions about her impartiality. And Diane is just noting that CNN is saying that Justice Ginsberg apologizes for criticizing Trump, which I guess we'll have to hear her own words in order to understand the nature of her apology. But I think that, as I've said previously, from my point of view, that would be appropriate because I don't think that she should recuse herself and I don't think that certainly would not be compelled to recuse herself, but having spoken out publically is a very different thing from what a justice observes or says privately.
MARCUSSure, justices, many of them come from political backgrounds. They've been associated with political parties. They've been nominated by particular presidents. Nonetheless, we like to believe that they are capable, perhaps not every time, but at times, of rising above partisan considerations and applying the law as they see it and understand it. And so to have a court -- if you're talking about Trump v. Clinton, to have a court that now would be seven people ruling on a presidential election, that would be very disabling.
MARCUSAnd I can't imagine that Justice Ginsberg, if there were a Trump presidency, would recuse her, that that would be a good idea. But it just underscores the folly, if I may use that word, of her having done so.
REHMPaul Butler, now that apparently the justice is apologizing for her comments, what does that do to your own thinking and arguments?
BUTLERYou know, the justice is, obviously, concerned about her legacy. She's 83 years old. This is the most extensive criticism she's received and it's...
BUTLEREver. And it's been from her friends on the left, you know. She's a civil rights icon, a feminist icon and, you know, I think that she wants to be well regarded. But here's the thing. She will be. I mean, the ironic thing is that this apology certainly doesn't take back what she said. So we all know how she feels about the Donald now and there'll still be those concerns about whether she can be fair. I just don't think those concerns are legitimate.
MARCUSOne of the fascinating things about this episode has been normally, a public figure produces a Michael Kinsley gaffe and says what the -- he or she believes to be the truth and that's a gaffe. And then, the public figure, having uttered the truth, then proceeds to walk it back. As Mark was pointing out, she -- Justice Ginsberg kept doubling down on what she said until she how has pulled back.
REHMRuth Marcus of The Washington Post and Justice Ginsberg has now said that her criticism of Donald Trump was ill advised on her part. Stay with us.
REHMAnd welcome back. We have just learned that in a statement Ruth Bader Ginsburg, Supreme Court justice, has said of her comments criticizing presidential assumed nominee Donald Trump, quote, "On reflection, my recent remarks in response to press inquiries were ill advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future, I will be more circumspect." Really quite something, Ruth.
MARCUSIt's extraordinary and I'd like to give Justice Ginsburg credit for doing so. There's a tradition at the Supreme Court for the Solicitor General of the United States, when there turns out to be a mistake in a case, to come forward and confess error. And I've never heard, really -- I could actually maybe think of some times when justices have expressed regret about past decisions, either in public or in their writings and in future opinions. But for a justice to come out and confess error in this way is absolutely extraordinary. And I think that's -- some of us understand that apologizing is a very difficult thing to do. And good for her.
MARCUSIt doesn't un-ring the bell. It doesn't un-create the damage and distrust that this causes. But I think it was appropriate and fair. I respect her more for having done it.
STERNRight. But, of course, you know, she can't put the cat back in the bag. And we all know now, on the record, what she thinks about Trump quite extensively. And so my fear is that despite this apology, which is really just a coda after a long campaign against Trump, that people will now look back on her previous opinions, which seemed to be these, you know, great independent, constitutional, jurisprudential, liberal opinions, and say were these really just policy preferences dressed up in judicial garb? Were these amazing decisions, interpreting the equal protection clause and the due process clause to protect minorities and women and gays, you know, were these really just her liberal views cloaked in a few constitutional references?
STERNAnd I think, you know, that's a question people may have had before. But now I think even many people on the left may be disappointed and future law students may read Justice Ginsburg's opinions with a bit of a shadow cast over them.
REHMBut hold on, here. Here's an email from Jeffrey in Bowie, Md., who says, please explain the difference between Justice Scalia meeting socially with Vice President Cheney, even as the court was considering a case involving Cheney and Justice Ginsburg opining on a Trump presidency? I don't recall Representative Ryan or any Republican calling Scalia's impartiality or fitness into question, Paul.
BUTLEROr Justice Alito just not being to refrain himself during a State of the Union address from President Obama, shaking his head and making funny faces at him, Justice O'Connor writing a letter to Senator Barry Goldwater saying how much he hopes George W. Bush wins the election and beats Al Gore. I mean, we can go on -- there are so many examples of Supreme Court justices taking political positions. So when my buddy from Slate says that, oh, now the people are going to think that the justices know about politics and they're ideological. I'm shocked. Really? People will think that? Dude, people have been thinking that all along. It doesn't undermine the legitimacy of the court to know that justices are real people with real opinions.
STERNI fully see your point. But I have to say that what Ginsburg is doing is I think different in kind from what the previous justices have done. Although, I will say there is immense hypocrisy here on the right. People who are now shouting about Justice Ginsburg, who did not complain about Justice Scalia or Justice O'Connor, should have spoken up then. And it's telling that they did not. And yet, I have to say, the campaign that Justice Ginsburg has launched, which was I think a campaign, three consecutive interviews of increasing anger toward Trump, is just substantively distinct from what the previous justices did.
STERNA stray comment at a party on election night, that was O'Connor's greatest foul. Justice Scalia hung out with his friend Dick Cheney while a case was pending. Well, guess what? The court and the federal government, they're very insular worlds. You know, many people who are appearing before the court have clerked for the justices before and no one questions the justices' ability to be impartial there. So I think what Justice Ginsburg is doing here is really being more of an advocate against Trump than revealing her partisan leanings against him.
REHMTo what end?
STERNTo what end? Well, I think that Justice Ginsburg probably agrees with Paul, that Trump presents a new kind of threat to the republic. You know, there's a reason she didn't speak out against Mitt Romney or John McCain. She thinks Trump presents a new kind of unique menace. And that for her to remain silent in the face of his evil would be akin to legitimizing his candidacy, which she refuses to do.
REHMInteresting. Ruth Marcus.
MARCUSWell, I totally agree with Paul, justices are people too. So that means they have friendships, including with administration officials and, as Mark said, lawyers who appear before them. And they also, obviously, have political views that -- and political preferences for who becomes president that don't disappear once they put robes on. At the -- and it's also true that previous justices have made errors. The Washington Post editorial page has criticized Justice Scalia, as have others, the late Justice Scalia for some of the extrajudicial comments that he made.
MARCUSAnd I think it's important for their not to be hypocrisy and for people on -- across the political spectrum, when justices go too far, to be willing to criticize them, whether they're on the right side or the wrong side. And same thing with the hunting trip with Vice President Cheney. I think that was ill-advised. He used Justice Ginsburg's words...
REHMAll right. But, Ruth, go back to my question. Should there be too close an election to call and it goes to the Supreme Court, how is Justice Ruth Bader Ginsburg going to be not only perceived, but how is she going to react, considering what's happened?
MARCUSI think she will be perceived by the right as not appropriate to be sitting on the case. I would strongly predict that she would remain on the case nonetheless. The Supreme Court is the Supreme Court. And for it to be disabled, it would be down to seven justices in this situation deciding a presidential election, that would be actually particularly bad for the country. And so there's nothing, just to be clear, there's -- the Supreme Court justices are bosses of themselves. They are not technically subject to the Judicial Canons of Ethics. They decide for themselves when it is or is not appropriate to recuse. They take a lot of different things into account, including the fact that they are the final authority.
MARCUSI would -- if I were advising Justice Ginsburg in a, god forbid, Clinton v. Trump case, I would say, nonetheless, stay on the case.
BUTLERSo I went to a law school with Justice Elena Kagan, but I've never spoken to her about any of this stuff. But I'm pretty sure that she isn't going to vote for Donald Trump. Based on my favorite justice, Justice Sotomayor's opinions, I'm pretty sure she's not going to vote for Donald Trump either. So I think she pretty much thinks the same thing about Trump that Justice Ginsburg said. So it sounds like Justice Ginsburg sin is being open and honest and transparent. She doesn't have different views. She's just more forthcoming about what she actually thinks.
MARCUSSo, Paul, let me give you an analogy and it might not be one that's compelling for you. For years I was a newspaper reporter and it was my -- I covered the Supreme Court. And it was my -- I had views about the cases that were before the Supreme Court. I had views about the presidents that I covered. It was my job and I took it really seriously to do my absolute best to keep those views out of my -- from be -- from affecting what I wrote and from being discernible in what I wrote. And people could disagree about the degree to which I was successful in achieving that or whether it's achievable in general. And I -- and in private parties, it was perfectly clear what I thought as I spoke among my friends.
MARCUSIt's really different when you express your views publicly. Now, it's my job to express those views publicly. It was Justice Ginsburg's, not job, but part of her job requirement to keep those views inside the private circle. There's a really big difference between what we understand and correctly presume about justices' views and when they feel the need to -- because, you say, you know, it's justified because it's such an extreme situation. I think that argues about the difference between public and private.
REHMAll right. I want to open the phones, take a call here from Linda in Annapolis, Md. You're on the air.
LINDAOh, hi, Diane. Thank you for taking my call.
LINDAI just -- I was going to comment about Alito's behavior at the State of the Union and also Scalia's behavior with Cheney. But I know that you've mentioned that now. My issue is the double standard. And it just isn't this case, it's everything. A Democrat can do the same thing that a conservative Republican can do, but we'll never hear the end of it. It goes on and on. They make a big deal out of it. I think this has really become a mountain out of a molehill. And that's my comment.
REHMAll right. Thanks for calling. Mark.
STERNYou know, I do agree, as I said before, that there's a double standard. But I think, at the same time, liberals tend to be more circumspect about the precedent that their guys are setting. And I think that goes a long way to explain why liberals can be so hard on their own people, because they're afraid of what this suggest would be acceptable in the future. And I have to ask my friend Paul, I mean, would you be defending Justice Alito going to bat, the same way for him, if he called Hillary Clinton a faker who should have turned over her emails?
BUTLERI wouldn't be surprised. Again, Justice Ginsburg and Justice Alito's jobs are to decide cases and to write opinions, where they use legal analysis. So Justice Alito, in an opinion, isn't going to say, my opinion is based on my extreme distaste for President Obama. He's got to cite law and precedent. Justice Ginsburg will do the same thing. The fact, again, that they have outside opinions, you know, there's a whole big legal debate about whether that actually enters into their judgment. But they don't cite politics when they write decisions, they cite legal rules.
REHMAll right. And to Atlantic Beach, N.C. Angela, thanks for joining us.
ANGELAThank you for taking my call, Diane.
ANGELAMy comment is, I'm surprised that nobody has responded to Trump's ageism comment. The comment that he made about Ginsburg's age is very offensive to me. And it's almost like we're so accustomed to him speaking about against immigrants, against women, against minorities, that when he makes an ageist comment and definitely an ageism comment, commenting on her age and her mental capabilities based on her age, I'm just surprised that we haven't heard anybody bring that up.
REHMWell, let's talk about that right now. Ruth.
MARCUSWell, it was interesting. As much as I think that Justice Ginsburg was ill-advised in what she said. Guess what? No surprise here. Donald Trump was ill-advised in what he said. He said, I think that Justice Ginsburg was losing it. And I would invite him to do something I suspect he's never done before, which is go to a Supreme Court oral argument and listen to Justice Ginsburg from the bench. That will give you all the evidence you need about whether she's losing it or not. She's not.
BUTLERAnd to the caller's point, can I just play the woman card with Ruth? So Ginsburg is the second woman on the court. She created opportunities for many women. She's an iconic feminist. And when you look at what Trump has said -- Calling Rosie O'Donnell fat and ugly. Saying about Carly Fiona, look at that face, why would you expect anyone to vote for her? Saying Megyn Kelly had blood coming out of what -- her whatever. Again, how do you expect Justice Ginsburg to respond? What's wrong with her criticizing a man with that kind of misogyny?
REHMAnd you're listening to "The Diane Rehm Show." Go ahead, Ruth.
MARCUSWhat -- there is nothing wrong with a woman criticizing a man for that kind of misogyny. Many women have done it, including myself. And I expect to continue to do it, if and when we hear more from him. The problem that I have is that Justice Ginsburg's responsibility is not to womanhood, but it's to her job, which she does exceedingly well, and to the court. And I think she did both a disservice by speaking out. There's a lot of women who can pile on Donald Trump -- and go for it, ladies.
STERNI won't blame the victim here. And I completely agree that what Trump said about Ginsburg was out of line and atrocious and ageist. But I do have to note that this was inevitable, or at least something like this was inevitable. When Justice Ginsburg decided to speak out against Trump -- not once, not twice, but three times -- of course he was going to respond. And of course he was going to respond in a Trumpian way. And I think that is really the true danger and the true toxic results of this entire affair, is that it creates a debate, a feud between a Supreme Court justice and a presidential candidate, something that I think hurts both the image of the executive branch and of the judiciary.
REHMWhere do you see that feud going?
STERNWell, I think that Justice Ginsburg has decided to unilaterally deescalate here. I think that she is done making comments about Trump or about the entire election.
STERNI suspect that Trump may bring this up from time to time to rally his base and to show, oh, I'm going to appoint the right Supreme Court justices. He seems to think he can just knock Ginsburg off the bench, so he'll probably say that mistakenly a few times. But I think, for the most part, this will fade, with periodic revivals until November.
MARCUSIf anything, the result will be Justice Ginsburg would stay on the bench longer than she would have otherwise, certainly through -- she would try to stay through a Donald Trump presidency I would think. And I think another impact, interestingly, we haven't really talked about the pending Supreme Court vacancy and the languishing nomination of Merrick Garland. It's not that there was a lot of momentum to the administration's continuing effort to get him confirmed, but certainly this is not helpful to the Garland confirmation.
REHMAll right to Gaithersburg, Md. Charles, you're on the air.
CHARLESOh, thank you for taking my call, Diane. And the whole world loves you very much.
CHARLESI'd like to say, number one, in the past, a few Supreme Court justices have actually ran for the presidency and a number of them also ran for governors of different states. And number two, Trump seems to rally against political correctness unless it doesn't suit him. And that's my comment.
REHMAll right. Paul Butler.
BUTLERSo my favorite is probably the most well-regarded chief justices of all time, John Marshall, was actually the secretary of state at the same time that he was the Supreme Court chief justice. So there's a long tradition of understanding that Supreme Court justices can also, at the same time, be political actors. Now, again, it's not something that I think we should encourage. But it doesn't undermine the legitimacy of the court in the way that my co-panelists fear.
REHMPaul Butler, he's professor of law at Georgetown University and author of a forthcoming book titled, "Choke Hold: Policing Black Men." And we're going to take a short break. When we come back, more of your calls, your comments. Stay with us.
REHMAnd welcome back. Here's an email from Susan, in Alexandria. As we talk about Justice Ruth Bader Ginsburg, her comments about Donald Trump, for which she has now publicly apologized. And one caller, Michelle, says, "It's sad to hear Ruth Bader Ginsburg apologizing. She spoke the truth and certainly what many people think. Of course she has her opinions, as do all the justices. For us to believe they are non-partisan is ridiculous. Witness the Bush election and many decisions since then."
REHMHere's another email from Susan, in Alexandria. "Both Clarence Thomas and his wife have been active for years, appearing at and making speeches to right-wing political gatherings. For all of you who claim to be so aggrieved to discover that justices have opinions, where have you been all these years?" Mark?
STERNLook, I completely agree that what Clarence and Ginni Thomas have been doing for the past several decades, advocating for far-right causes, speaking to far-right groups -- I believe just yesterday Ginni Thomas came out in support of Donald Trump for presidency. All of that is very unnerving. I don't think it's behavior, however, that the left should emulate in any way or that we should hope or appreciate our Supreme Court justices on the left emulating.
STERNYou know, I will say that if there was ever a time for a justice to take a stand, obviously this was it, you know. I'm not saying that I don't understand why Justice Ginsburg did speak out now. Like Paul said, Donald Trump is pretty much a fascist. And so I appreciate that she took a stand here. I think it's much more reasonable than say Clarence Thomas and Ginni Thomas going on a countrywide campaign against Obamacare together, as they did when that case was pending. But I still think, just because it's the most justified time for her to speak out, doesn't make it justified.
MARCUSHere I would like to play my own woman card, since Paul got to do it earlier, and say that I think that the issue of what a Supreme Court justice's spouse is able to do I think is a really complicated one. And I am very reluctant to say that a Supreme Court justice's spouse should be disabled from doing certain things because the husband or wife is on the Court.
REHMBut hasn't she appeared with him and he with her?
MARCUSI think that he should be, I mean, I think there's a difference between doing ideological things and doing partisan things. Justices of various stripes speak to groups of various stripes. And I think that's important. I think liberal justices should speak to the federalist society and conservative justices should speak to liberal legal organizations. I think justices should be very careful of the appearance that they're creating, but I also think that I don't want to live in a world where your spouse is not allowed to do things.
MARCUSMy spouse does political things and that's his business. It doesn't -- his views are not imputed to me, nor mine to him. And I think the same should be true of Supreme Court justices.
REHMIt's interesting because while he was alive, I forbade my husband from making a single political donation.
MARCUSYou had more control over your husband than I have over mine.
REHMIt was very important to me that he not do that.
MARCUSSo I totally respect that. And this more information than viewers might want to hear. I actually met my husband at the Clarence Thomas hearings. He was working as an aide to a Democratic senator on the Senate Judiciary Committee. And he has had a career in government, both in Congress and at an agency. He's now in private practice and he does make political contributions. And I feel for my own -- in my own situation that he's got his career and I've got mine.
BUTLERSo, you know, knowing you Diane, I'd be surprised if your husband's views actually had influenced what you said, but I understand that you were concerned about appearances.
BUTLERAnd I think that that's what Justice Ginsburg is concerned about as well, appearances. But we shouldn't let the appearance of justice interfere with justice itself. And so when we think about, again, this existentialist threat that Donald Trump represents, he's a man who has found nice things to say about Saddam Hussein, Vladimir Putin, Kim Jong-un. He had a hard time disavowing the endorsement of David Duke, a white supremacist. So this isn't normal politics. And I think that's what Justice Ginsburg was recognizing.
REHMThat's interesting point. All right. To Judy, in Houston, Texas. You're on the air.
JUDYI applaud her for making her statement. I will always back her, as well as people that are honest. And if we had more honest politicians that would speak up and speak as she did, most of us would know how to vote and who to vote for.
REHMIs that what she was doing? Deliberately to try to influence voters, Ruth?
MARCUSI don't think so. And I think the caller said we need more honest politicians. Paul is gonna want to tangle with me again. And I'm happy to do it. I understand that justices come from political backgrounds. There's been an argument that they don't come -- that there's not enough justices with political backgrounds. I understand that they have political views. To view them and to describe them as the caller did, as politicians is bad for the country and bad for the Court.
REHMOkay. Let me jump in here. Suppose you were a judge back in the Nazi era. And suppose your feelings were so strong against a Hitler. And yet you chose not to speak out, as many did. How would history look?
MARCUSHistory would not look kindly, nor did actually contemporaneous…
MARCUS…history look kindly on those judges. I think that my answer would be, first of all, what people -- what judges and lawyers were prosecuted for was being part of the machinery of the state. And so certainly you could not be a judge in a situation where we don't have an independent judiciary sort of executing the commands of a fascist regime. I think that I personally am not comfortable, as a general matter and not in the Trumpian matter, with Nazi Germany analogies.
MARCUSI don't think that is where we are. So I don't think that we have to answer that question. I personally believe that the democratic system is going to work its will here. We are going to have a free and fair election. And I don't -- I think that crossing the bridge of a fascistic Trump regime is not where we are now.
REHMDo you believe, Paul Butler, that Ruth Bader Ginsburg was trying to put her views out there as a way to influence the public?
BUTLERI think she was concerned about her legacy. And again, not wanting to be one of those judges, who in the face of tremendous injustice, remained silent. So we're thinking about a candidate who wants to bar people from entering the United States based on their religion, who has threatened the rule of law, including by saying he doesn't think that Muslim American or a Mexican American judge can be fair to him.
BUTLERYou know, there's always been this threat with the way that we practice democracy, that there might be some populace candidate who appeal to our most vile instincts, who won, who rolls to power. And then used that very mechanism to erode the framework of our democracy. I think we face that threat now with Donald Trump.
STERNBut, you know, Justice Ginsburg already has a way to fight and push back against injustice. And that is to cast her votes in cases that come before the Courts in ways that she believes will promote justice. You know, what Paul is advocating for is essentially extra-judicial campaigning for or against a candidate. And if that's the case, you know, we can discuss this in broad philosophical terms, what should you do in the face of evil.
STERNBut the fact is we have a Constitution, and we have an Article III judiciary that supposed to be independent. What's the point of any of that if, in the face of a really nasty candidate, all of it crumbles and we say you go, Ginsburg, go be the politician that we want you to be right now?
REHMAll right. To Steven, in Laurinburg, N.C. You're on the air.
STEVENGood morning, Diane and your panelists. I just wanted to comment that I feel that Justice Ginsburg's comments were not only inappropriate advice, they're counterproductive, that they do Hillary Clinton's campaign more harm than…
REHMHow so? Tell me how so, Steven.
STEVENBecause he is able to say and all of his supporters say -- talk about the established politicians, the system, of things being rigged. And just in her position, I just feel it's -- I respect her views. I agree with her views. But to make a public statement like that is actually counterproductive. As we can see now, your show and other media, the focus will be on Ginsburg, rather than all the faults, the dangers, etcetera in the Trump candidacy.
BUTLERYou know, I agree with that. Which is why I think it really wasn't about politics. Strategically it would not be a smart thing to do if you want Hillary to win. So again, I think that Ginsburg was concerned about something more important than politics. She's concerned about justice. She's concerned about the future of our country.
MARCUSSo I'm a little confused by Paul's argument. Because he's arguing that it actually won't have a political impact, but she felt the need to speak out because of the political threat posed by Donald Trump. I have actually a different theory of what happened here. Which is that Justice Ginsburg has been having a -- I don't mean this in a critical way at all. She has having a great time being the notorious RBG. And she has been increasingly vocal over the last several years in giving these end of term interviews and kind of having a good time doing it.
MARCUSAnd I think that she said what she thought. And I think, though, she's a very, very smart person, that she failed to adequately think through the consequences of what she said. And she was just saying what she thought without actually necessarily and eye to the long-term or short-term political impact.
REHMDo you know my colleague at NPR, Nina Totenberg, is speaking personally with Ruth Bader Ginsburg today? So I'm going to be very, very interested in Nina's report. So an email from Larissa, my earlier question, "What happens in a repeat of the 2000 election? But the Court is deadlocked 4-4. Then what happens? Who decides the election?"
MARCUSWell, it's -- A, it's extremely unlikely. And B, that just reinforces my chagrin about this whole thing, which is that we absolutely assume that what would come to the Court as a technical legal question would be explicitly and automatically decided by everyone lining up with their preferred candidate. That's, to me, very disturbing.
BUTLERWell, it's disturbing, but it's -- if you look at how the Court actually decides cases, it's kind of what they do. So if there's a 5-4 vote, it's very predictable who's gonna be, you know, on that five and who's gonna be on that four. Again, it's not inevitable, it doesn't happen in all of the cases, but it happens in most of the cases. And again, the point is the American people understand that and they're okay about that. They don't need us to pretend like justices don't have opinions, when we all know that they do.
REHMBut what if it is a 4-4 tie?
BUTLERSo Justice Ginsburg -- that would be an issue. But I don't think it's gonna happen, because I think Justice Ginsburg will correctly understand she doesn't need to recuse herself. Again, all she's done is say something that most of the other justices think. They all have opinion about Donald Trump. Trust me.
MARCUSAnd that creates the theoretical possibility of a 4-4 tie, though. I guess in that very unlikely circumstance, as a technical matter, the decision of a lower court would hold.
REHMAnd you're listening to "The Diane Rehm Show." And a caller in Alton, Ill. Hi, Lee, you're on the air.
LEEHi, Diane. It doesn't happen very often when I'm listening to a show that actually my view is changed. I'm an attorney. I just left the courthouse where I saw judge with a sign, an anti-Hillary sign in his chambers. But as I was listening to you talk -- and the question you raised about Nazi Germany. I generally don't like -- and I disagree with Trump analogies to Nazi Germany. But I think the point's taken.
LEEI think maybe we've got one guy who's running, who's set aside all the rules. And I think Ruth Bader Ginsburg as the right, as I listen to your question and listen you all discuss, the rules are set aside and we're in a different territory, as we all know. And I think she was right to speak out. And as I listen to you all discuss it, you convinced me that I think she did exactly the right thing. And it makes all of us wonder, do we have to speak out more.
STERNI would actually draw the opposite lesson from your unfortunate experience just now. I would think that it's very unpleasant and bad to see a judge with a political sign in his or her chambers.
STERNAnd that I think if we accept what Paul is arguing and what Justice Ginsburg's defenders are arguing, that's something we have to accept. We simply have to accept that justices are political, judges are political, they have political views. They're allowed to express them, so long as it's off the bench and not in their opinions.
REHMYeah, but look -- but wait a minute. I thought those rules did apply to lower court judges. So what is this judge doing with an anti-Hillary sign?
MARCUSWell, he -- our caller didn't say if this was a federal court judge or a state court judge.
REHMOkay. Let me ask Lee. Was it a federal court judge or a state…
LEEIt was state court judge. And, you know, I think it's a fiction to pretend that they don't have views. And they -- so let's be honest. They have their views. This was in his chambers. It wasn't in his courtroom. Those are his views. Let's be honest and let's say what they think.
MARCUSElected or appointed judge?
MARCUSAh, so this just underscores the point that, as far as I'm concerned, judicial elections, partisan or non-partisan, are very, very bad idea.
STERNI couldn't agree more.
LEEI agree with that.
BUTLERAlthough, again, since most states do elect judges, it also underscores the point that people understand that judges have points of view and that's an appropriate way to consider who ought to be a judge.
REHMLee, I really appreciate your call. It takes the discussion even farther. And I'm afraid we're gonna have to leave it right there, except one quick final question. Any repercussion from this, Ruth?
MARCUSThe Supreme Court, which has in public opinion polls tended to score higher than other government institutions, but is on a downhill slope, is going -- that is gonna further the downhill slope.
REHMAll right. Mark?
STERNEverything bad Republicans have ever wanted to say about Ruth Bader Ginsburg, they'll say it now and with more ammunition.
BUTLERJustice Ginsburg is one of the greatest Supreme Court justices of our time. Her reputation is untarnished.
REHMPaul Butler, his forthcoming book is titled, "Chokehold: Policing Black Men." Ruth Marcus is deputy editorial editor of The Washington Post. And Mark Joseph Stern is reporter for Slate.com covering legal issues. Thanks for listening. I'm Diane Rehm.
Most Recent Shows
Diane talks with Yoni Appelbaum, senior editor at The Atlantic, about why he thinks impeachment is needed for the country to move forward.
Diane talks with Norman Ornstein,resident scholar at the American Enterprise Institute
Diane talks with Elisabeth Rosenthal, editor-in-chief of Kaiser Health News, a contributing opinion writer for the New York Times and author of “An American Sickness: How Healthcare Became Big Business and How You Can Take It Back."