“Outraged About Ginsburg’s Comments?”: Supreme Court Justices Have Always Voiced Political Opinions
Donald Trump is freaking out over statements made by Supreme Court Justice Ruth Bader Ginsburg.
Ginsburg didn’t hold back during a New York Times interview published Monday. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said.
Trump, naturally, hopped on Twitter to complain.
Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!
— Donald J. Trump (@realDonaldTrump) July 13, 2016
Speaker of the House Paul Ryan called Ginsburg’s comments “out of place” during a CNN Town Hall on Tuesday.
But even after a wave of criticism, including from “liberal” outlets, Ginsburg refused to walk back her comments. On Monday, she called Trump a “faker.”
“He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that,” she said in her chambers.
The backlash over Ginsburg’s comments is not surprising, given Trump’s history of trying to de-legitimize the judicial system (especially when it applies to him). But his argument that Ginsburg’s comments disqualifies her from being an unbiased judge is a weak one: The ideological leanings of the justices are well known by not only their decisions (its kind of their job to give opinions), but also their public statements.
Unlike Ginsburg’s comments about Trump, justices have made plenty of statements in the past that relate directly to cases before them in the court.
Antonin Scalia was the poster boy for this behavior – the conservative legal icon frequently toured between law schools, book stores, and other gatherings, debating all comers on a wide range of topics. We knew how he felt about the death penalty, abortion and homosexuality:
“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” he said in 2012.
“What minorities deserve protection? What? It’s up to me to identify deserving minorities? What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.” he said in 2015.
Scalia’s defense of his homophobic remarks could easily be used to defend Ginsburg’s Trump comments — not that Ginsburg would use his argument, despite her storied, decades-long friendship with Scalia.
“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Scalia said in 2012 after a gay Princeton student asked him why he equated laws banning sodomy with laws that ban man-on-animal sex and murder.
Ginsburg herself has long been known for her frankness. Joan Biskupic, the journalist who reported Ginsburg’s statements on Trump, writes that, having met with her “on a regular basis for more than a decade,” she “found her response classic.”
Biskupic elaborates:
I have witnessed her off-bench bluntness many times through the years. During 2009 oral arguments in a case involving a 13-year-old Arizona girl who had been strip-searched by school administrators looking for drugs, she was troubled that some male justices played down any harm to the student. “They have never been a 13-year-old girl,” Ginsburg told me. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”
Earlier in 2009, she was being treated for pancreatic cancer yet made sure to attend President Barack Obama’s televised speech to a joint session of Congress, explaining that she wanted people to know the Supreme Court was not all men. “I also wanted them to see I was alive and well, contrary to that senator who said I’d be dead within nine months.” She was referring to Sen. Jim Bunning, a Kentucky Republican, who had said she would likely die within nine months from the pancreatic cancer. Bunning later apologized.
As the first Latina to reach the court, Justice Sonya Sotomayor fiercely defends her use of personal political reflection, based in experiences that she believes differ from those of the other justices, in her arguments. The issue of affirmative action is especially important to Sotomayor. In her 2013 memoir, she wrote:
“Much has changed since those early days when it opened doors in my life. But one thing has not changed: to doubt the worth of minority students’ achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try.”
Sotomayor has taken this sentiment to the court. In her dissent on Schuette v. Coalition to Defend Affirmative Action, she wrote: “Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No where are you really from?’”
Sotomayor’s opinion in a fourth amendment case on the validity of police stops was an explicitly political appeal. “It is no secret that people of color are disproportionate victims of this type of scrutiny,” she wrote in her dissent, on a case where a Utah man claimed he was unlawfully stopped by police. “For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”
And besides: The Constitution does not prohibit Supreme Court Justices from expressing personal opinions.
Bloomberg‘s Noah Feldman offers Chief Justice John Marshall, who served as John Adams’s secretary of state while he was a chief justice, as proof that America’s founding generation was not “obsessed with the idea that justices have to be outside the reach of politics.”
Marshall, a loyalist of the Federalist Party, was understood to retain his beliefs while serving as chief justice subsequently.
Two of his most revered opinions, Marbury v. Madison and McCulloch v. Maryland, are historically incomprehensible except through the lens of partisan politics. In the first, he went to great lengths to embarrass the Jefferson administration by insisting that Marbury had a right to a justice-of-the-peace commission granted by Adams, before tacking back and holding that the law that would have allowed the court to force the delivery of the commission was unconstitutional.
In the second, he upheld the constitutionality of the Bank of the United States, originally such a fundamental partisan issue that it helped drive the creation of his Federalist and Jefferson’s Democratic-Republican parties.
Maybe conservatives shouldn’t argue about the integrity of the Court while in their fourth month of refusing to give it a ninth justice.
By: Germania Rodriguez, The National Memo, July 13, 2016
“Every Time He Opens His Mouth”: Trump Veep Contender General Michael Flynn Can’t Stop Pissing Off Conservatives
Before he disappears from sight as a national political figure when Donald Trump names someone else as his vice-presidential choice, let us pause for a moment of awe at the utterances of former general Michael Flynn, who somehow manages to dig himself into a deeper hole every time he opens his mouth.
First and most famously, Flynn eliminated himself from serious consideration for a spot on the national ticket by going on a Sunday show and, via an incoherent ramble, appearing to endorse a woman’s right to have an abortion.
The next day, Flynn tried to recover by labeling himself a “pro-life Democrat” whose mother was an anti-abortion activist, but then wandered back into a swamp by suggesting the Supreme Court had for the time being resolved the issue. Then he made matters infinitely worse by saying that people who viewed the abortion issue as the most important priority for America should just stay home and let others decide the election.
And then, for his encore, Flynn allowed as how he was fine with same-sex marriage, deploying his signature clean and concise talking style:
“On the gay issue, hey, you know what, if people love each other, Jesus, I mean, come on,” Flynn told San Diego KOGO radio’s Morning News. “I’m not afraid of it. That’s my point. And I’m not afraid to tell you what I believe in.”
This statement was made at roughly the same time the Republican convention Platform Committee was beginning to approve a notably homophobic expression of GOP principles.
Flynn also commented about his position on abortion, saying it doesn’t matter that he has previously said women have a right to choose whether to have an abortion.
“I mentioned it yesterday, I’m one of these people that I don’t like, on the abortion issue, it’s not something that—I’m very uncomfortable talking about it. I’m not gonna kid you. It’s a very uncomfortable thing. I think, that, it’s a legal issue. Definitely a legal issue. It’s been decided upon by our Supreme Court.”
In case anyone out there is in doubt about this, let me be plain: Anyone joining a Republican national ticket has to be solidly and unambiguously in favor of outlawing virtually all abortions. Yes, some wiggle room is allowed over the tiny number of abortions performed in cases where pregnancy is caused by rape or incest, but that’s absolutely it. And nothing offends social conservatives much more than suggestions that their issue should be subordinated to others. Indeed, their primary grievance with the GOP is that its leaders do exactly that far too often.
To be clear, these are people who believe, or at least claim to believe, that legalized abortion is an ongoing American Holocaust and that same-sex marriage is an attack on the fundamental wellsprings of Western civilization. So no, these are not “legal issues” to them, or “divisive” topics to be put on the back burner.
Now, it’s fashionable this year, as in most years, to contend that the Christian right is a spent force in American politics, and maybe this time, unlike all of the other times, the prophecy is correct. But, for the moment, the people who say abortion is genocide or that gay people defy all of the laws of God and nature absolutely have the power to blow up Donald Trump’s convention and wreck his slim chances of becoming president. I’m guessing Trump was never serious about Michael Flynn as a running mate or he would have dispatched someone to make sure the man knew what to say on very basic ideological litmus tests like abortion policy. Once the actual veep is announced, poor Flynn can stop digging and go back to being a national-security adviser to Trump, if he hasn’t made himself so toxic that even that kind of role becomes impossible.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, July 13, 2016
“Undermining Democratic Turnout”: The Totally Legal Campaign To Steal 2016
The most striking facet of the Supreme Court’s decision to strike down Texas’ abortion law was how directly it confronted the obvious lie at the heart of the case.
Conservative lawmakers have enacted a sweeping flurry of abortion restrictions at the state level, and justified their policies with a supposed concern for women’s health. It’s such an obvious cover that when the court asked Texas’ lawyers to justify their arguments with empirical data, they had precisely bupkis. The point of these laws is to prevent abortion, women’s health be hanged.
An analogous situation is developing with respect to voting rights, where conservative legislators have also enacted a sweeping set of state-level regulations making it harder to vote and justified them with obvious nonsense about voter fraud. And it’s ready to pay off this year, especially in local elections.
The problem with voter ID laws — the signature conservative vote suppression measure — is that it’s aimed at the most idiotic possible method of stealing an election. Even a small local election is usually decided by hundreds if not thousands of votes, so in order to steal one with fraudulent individual votes, you’d have to get hundreds or thousands of people to commit a very serious felony — with no guarantee that it will actually swing the election.
As any tinpot dictator could tell you, the way to steal an election is by manipulating the central election procedure. Instead of wrangling thousands of random schlubs, you fiddle with the registration lists or the assignation of ballots — or you prevent the enemy party from voting in the first place.
Given the GOP’s other vote suppression measures — like shortening early voting, eliminating night and weekend voting, making it harder to register to vote, and so on, all of which have nothing to do with fraud but disproportionately hit liberal constituencies — undermining Democratic turnout is the obvious motivation behind voter ID and similar policies.
It’s always been unclear whether conservatives were being consciously deceptive about their motives, or had merely convinced themselves of tactically convenient nonsense by constant repetition. But at least some of them were outright lying. Ari Berman at The Nation has the goods, in an extensive report about how GOP vote suppression is paying dividends in Wisconsin:
Schultz asked his colleagues to consider not whether the bill would help the GOP, but how it would impact the voting rights of Wisconsinites. Then-State Senator Glenn Grothman cut him off: “What I’m concerned about is winning. We better get this done while we have the opportunity.” (When asked during the state’s April 5 primary why Republicans would carry Wisconsin in 2016, Grothman, who had since been elected to the U.S. Congress, replied: “Now we have photo ID.”) In a federal voting-rights case, Allbaugh named two other GOP senators who were “giddy” and “politically frothing at the mouth” over the bill. [The Nation]
Make no mistake, this is tantamount to election theft. But since the Supreme Court gutted the Voting Rights Act in 2013, it is all probably legal, and even fairly above board given the number of Republicans who have been caught letting slip the bleeding obvious.
But legal or illegal, there is little difference between falsifying the results of an election and preventing the enemy party’s supporters from voting. Either way American citizens are deprived of their due right to the franchise. And while there is no general constitutional right to vote, given that African-Americans are the most reliable Democratic Party supporters, many of the vote suppression measures are racist in effect and probably in intention, and therefore arguably violations of the 15th Amendment.
None of this is particularly original. Republicans are the direct heirs to the Dixiecrat political tradition, and this batch of vote suppression is a weak echo of the methods by which African-Americans were prevented from voting in the Jim Crow South.
But until Congress can re-protect the franchise, the key question for the future will be whether the Supreme Court will revisit its previous view that the Voting Rights Act is largely outdated and unnecessary. Chief Justice John Roberts came to that view through a tremendous effort of willful ignorance — but subsequent events could not possibly have proved him wrong more decisively. The next time voting rights comes before the court, the need to defend the franchise will be difficult to ignore.
By: Ryan Cooper, The Week, July 5, 2016
“Will Trump Go Away If He Loses?”: You Cannot Keep The Baby Without The Bathwater
A very interesting argument has broken out over an unusual political question: If Donald Trump loses in November, can he be pushed aside while Republicans find ways to appeal to his core supporters?
Party gadfly David Frum seems to assume Trump will go away quietly:
[O]nce safely excluded from the presidency, Donald Trump will no longer matter. His voters, however, will. There is no conservative future without them.
Frum, to his credit, was warning Republicans for years that the GOP’s indifference to the actual views of its actual voters on the economy and immigration would eventually become a critical problem. He was right. So he has some credibility in seeking to craft a policy agenda and message that scratches the itch Trump scratched with so much excessive force.
But that doesn’t mean Trump won’t have anything to say about it.
Jeet Heer isn’t a Republican but makes a good point in responding to Frum that you cannot keep the baby without the bathwater when it comes to Trump’s fans:
[W]ill Trump really cease to matter in November? After all, no human being loves the spotlight more, and he’s chased after media attention since he was a young man. Being the nominee of a major party is a dream job for him, because it means people will hang on his every word. Even if he loses badly in November, Trump will likely cling to his status as the strangest “party elder” ever—and convert it into new, attention-grabbing and lucrative projects.
Fortunately for Republicans, the old tradition of referring to the immediate past presidential nominee as the “titular head” of the party has fallen into disuse. But presidential nominees rarely just go away. Perhaps the most self-atomizing recent major-party nominee was Democrat Michael Dukakis. But his demise after 1988 was not strictly attributable to his loss of what most Democrats considered a winnable general-election race against George H.W. Bush; his last two years as governor of Massachusetts also made a terrible mockery of his claims of an economic and fiscal “miracle.” And, besides, nobody thought of Dukakis as ideologically distinctive or as leading any sort of political “movement.”
The bottom line is that the same media tactics that improbably made Trump a viable presidential candidate in the first place will help him stay relevant even after a general-election loss, unless (a) it is of catastrophic dimensions and (b) cannot be blamed on tepid party Establishment support for the nominee.
If Trump loses so badly that he does indeed become irrelevant, then people like Frum will have another problem: competing with those who want to dismiss the whole Trump phenomenon as a freak event with no real implications for the Republican future. And yes, such people will be thick on the ground, attributing the loss to Trump’s abandonment of strict conservative orthodoxy on the very issues Frum thinks were responsible for the GOP alienation of its white working-class base from the get-go. There will be show trials and witch hunts aimed not just at Donald Trump and his most conspicuous supporters and enablers, but also at people like Frum — and more broadly, the Reformicon tribe of which he is often regarded as a key member — who think Trump was revealing important shortcomings of the orthodoxy many others will be trying to restore.
So, ironically, and even tragically, #NeverTrumper David Frum may discover that Trump will not only still be around, but could wind up on his side of the intra-party barricades.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, July 6, 2016
“Abstract And Brief”: Conservatives Argue For A GOP Platform Vague And Minimalist Enough To Accommodate Trump
For a political party known until quite recently for its virtually unanimous support for the dictates of conservative ideology, the GOP has got some shockingly large divisions on issues today, thanks to Donald Trump. His speech earlier this week on trade is an example: There is no way to identify a single inch of common ground between Trump’s attacks on globalization as the source of all evil and the views of the Republican-leaning U.S. business community (see this angry op-ed by U.S. Chamber of Commerce president Thomas Donahue). Slightly less heated but still important are Trump-GOP differences over social security and Medicare, treated by Trump as part of an inviolable social contract and by most Republicans as sacred cows that need to be slaughtered to bring federal spending under control. Immigration, of course, has created its own well-known intra-party fault lines. And there’s trouble all over the national-security landscape, beginning with Trump’s skepticism about NATO and his non-interventionist instincts, in a party where there’s a lot of lusty desire for Middle Eastern wars or maybe a nostalgic dustup with Russia.
All these divisions make the drafting and adoption of a party platform — normally a chore so routine and boring you don’t even hear about it beyond marginal arguments over the precise language of planks on abortion or guns — perilous. It would be natural for Team Trump to want to place the mogul’s personal stamp on the party’s statement of principles and proposals. And it would be tempting for those resisting Trump’s takeover of the GOP to start a platform fight at the convention.
How to avoid trouble? Well, two distinguished conservatives (one the president of Hillsdale College, the other a member of the actual platform committee) writing at the Washington Examiner have an idea: Make the platform so abstract and brief that none of the divisions even appear.
That’s not exactly how they put it, of course. Check out this lofty appeal:
On the eve of a convention that threatens disorder, Republicans should learn from the greatness of their party’s past.
The platform upon which Abraham Lincoln ran for president in 1860 was one and a half pages and 1200 words — quite a contrast to the 65 page, 33,000 word GOP platform of 2012. Written in the succinct and beautiful language of principle, it was meant to be read by all Americans, not just policy elites, and to guide great political action rather than make promises to special interests.
Might such a document today help to heal the divisions in the party as a preparation to healing those in the nation?
You betcha. The platform these gentlemen have in mind would focus strictly on the Constitution and the Declaration of Independence and the need for limited instead of expanded government. It would view America and its problems from such a great distance that you can’t see those messy differences over the actual issues that will confront the next president and Congress. Hell, it would be broad enough and vague enough to accommodate Trumpism!
The Trump candidacy, although unwelcome to many in the party, has the virtue of simplicity. He says that government belongs to, must respond to, and must in all cases seek to benefit the American people.
Every politician in either party would affirm the same principle, of course, but the whole idea here is not to get bogged down in details.
The devil, of course, is in the details. But platforms should not be about details. They should be about principles and broad lines of policy. The details will be worked out in due course between the President and Congress, as is right and good. The platform supplies a direction, not a specific route.
Or perhaps the platform is just a collection of platitudes supplying the directive that the future lies ahead.
Maybe that’s all a party can do when it is nominating a presidential candidate that so many of its leading members regard with ill-disguised fear and loathing. It’s so much easier to talk about the platform from a rarefied perspective so distant from the actual country with its actual challenges and choices.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, July 1, 2016
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