The Ginsburg Proviso [Updated]

RBG copyJustice Ruth Bader Ginsburg is living up to her hip-hop nickname as the “Notorious RGB” with her completely intemperate remarks about Donald Trump and also the potential cases and controversies she has obviously prejudged. A lower federal court judge might well face sanctions for such behavior. Check out Canon 5 of the Code of Conduct for United States Judges:

Canon 5: A Judge Should Refrain from Political Activity

(A) General Prohibitions. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office. . .

Even liberals like Dan Drezner are saying that Ginsburg has crossed a very clear line:

This was a remarkably stupid and egregious comment for a sitting Supreme Court justice to make on the record. Say what you will about Justices Antonin Scalia, who died in February, or Clarence Thomas, but they never weighed in on presidential politics quite like this. . .

I cannot see any possible defense of what Ginsburg did, given that she violated Canon 5 of the Code of Conduct for United States Judges. Supreme Court Justices are not strictly bound by that code, but they nonetheless act as exemplars for the rest of the judiciary, and this canon seems pretty important. She should repair the damage and apologize for her remarks as soon as possible. Otherwise, she bears almost as much responsibility as Trump for the slow-motion crisis in American democracy.

But beyond Ginsburg’s comments on Trump were here views on which precedents she wants to see overturned, including Citizens United and the Heller decision that clarified the individual right to own firearms. Ginsburg thinks the Second Amendment is “obsolete,” and that the Supreme Court can simply ignore it.

So let me take a contrarian point of view and suggest that Ginsburg has done us a great favor with her reckless partisan and ideological clarity. I believe all future Supreme Court nominees should be held to the new “Ginsburg Proviso” and be required to tell us which precedents they favor overturning in their confirmation hearings. The old dodge that “It would be improper for me to comment on potential cases” is no longer acceptable. Any nominee who refuses his or her candid opinion on the cases Ginsburg names should be blocked from confirmation.

Either that or impeachment proceedings against Ginsburg should be started today.

P.S. An additional thought: If Trump wins, he should request that Ginsburg administer the Oath of Office to him on January 20. Heh.

UPDATE: A headline I never thought I’d ever see at the New York Times editorial page:

Donald Trump Is Right About Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling.

Three times in the past week, Justice Ginsburg has publicly discussed her view of the presidential race, in the sharpest terms. In an interview with The Times published Sunday, Justice Ginsburg said, “I can’t imagine what the country would be — with Donald Trump as our president,” joking that if her husband were alive, he might have said, “It’s time for us to move to New Zealand.” . . .

Savor the moment. “Donald Trump is right” are words that will likely never appear again the Times. In other news, wing-bearing pigs have been observed aloft over Times Square, and the weather forecast for Hell is decidedly cooler.

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