Ginsburgâ€™s comments about Trump, which were somewhat vague if you read them closely, were less objectionable than many of the other things she said in the same interview. She also damned the Senate for declining to take up the high-court nomination of Judge Merrick Garland: â€œ â€˜Thatâ€™s their job,â€™ she said. â€˜Thereâ€™s nothing in the Constitution that says the president stops being president in his last year.â€™ â€
Thatâ€™s literally true, but thereâ€™s also nothing in the Constitution that says the Senate stops being the Senate under any circumstances. Ginsburg is making a one-sided political argument and framing it as a constitutional mandate. Which, come to think of it, isnâ€™t that different from her approach to jurisprudence. National Reviewâ€™s Ed Whelan offers a backhanded compliment: â€œLetâ€™s give her credit . . . for exposing, once again, how nakedly political she is.â€ …
It gets worse still. Liptak asked Ginsburg if there are â€œcases she would like to see the court overturn before she leaves it.â€ Her answer: â€œIâ€™d love to see Citizens United overturned.â€ In that 2010 First Amendment case, the Federal Election Commission unsuccessfully claimed it had the authority to criminalize the distribution of a film critical of Hillary Clinton, whom Ginsburg has now implicitly endorsed for the presidency.
She also told Liptak that District of Columbia v. Heller (2008), which established that the Second Amendmentâ€™s guarantee of the right to keep and bear arms guarantees the right to keep and bear arms, was â€œa very bad decision,â€ adding (in Liptakâ€™s words) â€œthat a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.â€ Lipsky reports that â€œthe Times . . . seemed to want to protect Ginsburg from the fallout from this error of judgment, deleting it from the article until sharp-eyed readers called out the paper and the lines were restored.â€
Thereâ€™s no indication that Liptak asked Ginsburg if she also has designs on the Third Amendment. But if you wake up one morning and find a strange soldier on your couch, donâ€™t say we didnâ€™t warn you.
And thatâ€™s not all, folks. Ginsburg went on to reveal confidential information about the courtâ€™s deliberations during the term just ended. She disclosed how the late Justice Antonin Scalia voted in two cases on which the court deadlocked, and she asserted that Justice Elena Kagan would have joined the 4-3 majority to uphold racial discrimination in Fisher v. University of Texas, from which Kagan recused herself. â€œIf Justice Kagan had been there, it would have been 5 to 3,â€ Ginsburg asserted.
So, to sum up: Ginsburg, in an on-the-record interview, took political positions on the presidential election and a Senate confirmation, indicated that she intends in future cases to vote to curtail constitutional rights, and violated the secrecy of the Supreme Court conference room.
Category Archive 'The Constitutiin'
13 Jul 2016