'Ridiculous and Unhelpful': Commentary on Trump's Bashing of SCOTUS
"The presidential tweet to recuse a Supreme Court justice for an opinion she wrote is absurd and demonstrates a disturbing lack of understanding of the role of the judiciary," one legal scholar said.
February 25, 2020 at 03:25 PM
10 minute read
President Donald Trump on Monday night renewed his criticism of federal judges and justices, sending dispatches on Twitter from India that said Justices Sonia Sotomayor and Ruth Bader Ginsburg should recuse in cases involving the White House.
Many legal scholars quickly rose to defend the justices, and lambaste or question Trump, who has regularly derided the independence of the federal judiciary as an unfair check on the ability of his administration to set policy.
Trump's remarks about recusals of liberal justices came amid new reporting showing the wife of Justice Clarence Thomas playing a role in weeding out "Never Trump" officials from the administration. The revelations about Ginni Thomas, a conservative activist, spurred new calls for Thomas to recuse in Trump-related matters. Thomas for years has faced calls for his recusal based on his wife's work as an advocate.
Sotomayor drew ire from conservatives for a dissent Friday night that said rulings in the Trump era have contributed to a "breakdown in the appellate process," where appeals courts are not given a chance to fully examine an issue before the justices issue an order allowing a new policy or rule to take effect. "Perhaps most troublingly, the court's recent behavior on stay applications has benefited one litigant over all others," Sotomayor wrote, referring to, but not naming, the Trump administration.
Trump's tweets about Sotomayor and Ginsburg name-dropped Laura Ingraham's program on Fox News. Ingraham, a former Thomas clerk, on Twitter had called Sotomayor's dissent "a travesty—and unheard of in the modern era for a sitting justice to impugn the motivation of colleagues as political."
In 2018, Chief Justice John Roberts Jr. rebuked Trump after he bashed an Obama-appointed judge for a ruling that went against the Trump administration. "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in a statement. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."
Here's a look at what some legal ethics scholars and court observers are saying about demands for recusals—at least involving Thomas, Ginsburg and Sotomayor—at the high court:
>> Ellen Yaroshefsky, Hofstra University Law School: "The presidential tweet to recuse a Supreme Court justice for an opinion she wrote is absurd and demonstrates a disturbing lack of understanding of the role of the judiciary. It's pure political pandering. Sotomayor is being a judge and her comments were not directed at Trump but at the other justices. As far as Justice Ginsburg is concerned, her earlier comment was unwise and she has apologized. She can decide individual cases based on law just as others do even if they have unexpressed or expressed opinions about individuals or entities."
Yaroshefsky said about Thomas and his wife: "Ginni Thomas is an ongoing issue. If she played a significant role in some underlying events that lead to the Supreme Court, one could say Justice Thomas should think about recusing himself—but generally speaking, this is not a basis for widespread recusals. Theoretically, Justice Thomas is deciding the cases independent of his wife's views."
>> Stephen Gillers, New York University Law School: "Ginni Thomas has the right to engage in political activities no matter how partisan. Judicial conduct rules do not attribute her conduct to her husband. It is possible that a case could reach the court in which her conduct is an issue, requiring Thomas's recusal. That is not likely however. The fact that she worked hard for a political position that later becomes enmeshed in a legal question before the court does not require his recusal. [Sotomayor's] criticism of the court's use of emergency appeals does not support a claim that she must recuse from Trump related matters. Nor does the majority's perceived favoritism toward the administration require the majority justices to recuse from Trump cases. In each instance each of the justices is just doing the job of deciding cases as they see it."
>> Carrie Menkel-Meadow, University of California Irvine Law School: "These calls for recusals for Supreme Court justices on the basis of their presumed political views or affiliations are an inappropriate assault on our justice system and the rule of law in the Supreme Court. Recusals are appropriate when judges or justices have inappropriate connections to particular cases (through monetary, personal or other ties that would challenge their ability to decide cases without bias). These demands for generic and politically based recusals are totally inappropriate."
>> Richard Painter, University of Minnesota Law School: "There's absolutely no reason for those two justices to recuse. They haven't made any public statements about the merits of the [pending Trump] cases. They were not involved in the cases and have no personal interest in the cases. It's a question of presidential power to withhold his personal financial records. Thomas is a lot harder case. The question is what does a justice of the Supreme Court do about a spouse who is not using good judgment? She is using very poor judgment, leveraging his role on the court, and makes him look very bad. If she is talking with him ex parte about the cases, he should recuse. I would hope he would at least reassure his colleagues that he is not talking with her at all about the cases."
>> Renee Knake, University of Houston Law Center: "It appears that President Trump is basing his calls for recusal on remarks Justice Ginsburg made about him during his presidential election in 2016, for which she later expressed regret, and a recent dissent authored by Justice Sotomayor in which she critiqued the government's repeated requests for emergency stays. Neither of these instances are situations rising to the level of requiring recusal for future cases involving the President or his administration. In the case of Justice Ginsburg, she has presided over cases involving the administration for the past few years without any need for recusal. As for Justice Sotomayor, her dissent may have been critical of the government but she certainly is not the first justice to issue a dissent that is critical of positions taken by parties who may appear again before the Supreme Court."
>> William Bradley Wendel, Cornell University Law School: "Questions have been raised for a long time about Ginni Thomas's associations with some pretty hard-right organizations, and the conclusion has generally been that it's impermissible to impute the political views of a spouse to a sitting judge. As for Justices Sotomayor and Ginsburg, I think what Trump is trying to do here is reinforce the narrative that there are Republican and Democratic judges. That's a constant theme of his tweets. It's a long-term strategy to delegitimize decisions he disagrees with. We would expect to see decisions coming out with Sotomayor and Ginsburg on one side, and Kavanaugh and Gorsuch on the other. The explanation is not some kind of pernicious bias, but simply the expected variation among thoughtful people about complex issues within jurisprudence. But Trump has figured out—as he so often does—how to weaponize a sense of grievance at having been on the losing side of a legal or political decision. So the short answer is no, there's no basis for recusal here, any more than there was when Justice Scalia made public comments in favor of the death penalty, or wrote scathing dissents against the right of same-sex marriage."
>> Arthur Hellman, University of Pittsburgh Law School: "There's no reason for Justice Sotomayor to disqualify herself based on her comments in the public charge case. She was commenting on the government's strategy and the court's response to that strategy. You would have to have something much, much stronger to justify recusal. As for Justice Thomas, I would think in this era where two professional career marriages are commonplace, it would be very troubling to say a judge would have to recuse himself or herself based on activities by the spouse. Justice Ginsburg is a harder one. Her comments in 2016—'How's he gotten away with not turning over his tax returns'—that comes awfully close. That's different from her generalized comments [about Trump] which I don't think require recusal. Judges and justices are supposed to separate their personal views from the way they decide cases."
>> Charles Geyh, Indiana University Maurer School of Law: "The president's call for Justice Sotomayor to recuse is frivolous. The Supreme Court has ruled that statements that a judge makes in the course of a judicial proceeding give rise to the need for disqualification only 'if they reveal such a high degree of favoritism or antagonism to make fair judgment impossible.' Blistering dissents that question the motives of the majority are business as usual on the Court—Justice Scalia made a career of it. The case for Justice Ginsburg to recuse is somewhat stronger, but ultimately limited in scope. Because Ginsburg's comments were focused on then-Candidate Trump personally, I think a case could be made that Justice Ginsburg ought to disqualify herself from cases in which President Trump sues or is sued in his personal capacity. Because Ginsburg's comments were not directed at the prospective policies of his administration, however, I do not think that her impartiality might reasonably be questioned in every case in which an administration policy is under review."
Geyh said about the calls for Thomas to recuse: "Calls for Justice Thomas to step aside because of his wife's political activities have been made before (in the months leading up to the Obamacare case, interest groups clamored for his recusal in light of Ms. Thomas's work on behalf of the Heritage Foundation, which opposed the Affordable Care Act). Although I understand why some may be troubled by Ms. Thomas's White House ties, in this day and age when professional couples are increasingly the norm, disqualifying a judge because of the political activities of the judge's spouse is not going to fly."
>> Jonathan Turley, George Washington University Law School: "While I have been highly critical of public statements by Ginsburg and other justices, including the late Justice Antonin Scalia, the demand by Trump for a blanket disqualification is ridiculous and unhelpful. There is a real issue to be discussed but it is not such stray lines in dissent. It is the increasing practice of justices to speak publicly and thrill what seems like a type of ideological constituency of what I have called 'celebrity justices.'"
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