Repub­li­cans de­mand Ginsburg’s re­cusal from travel ban case

50 House Repub­li­cans say her ‘im­par­tial­ity might rea­son­ably be ques­tioned.’

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

Dozens of con­gres­sional Repub­li­cans are de­mand­ing that Jus­tice Ruth Bader Ginsburg re­cuse her­self from rul­ing on Pres­i­dent Trump’s travel ban case be­fore the Supreme Court hears ar­gu­ments in Oc­to­ber, say­ing she’s al­ready shown she can’t be an im­par­tial ju­rist when it comes to Mr. Trump.

Jus­tice Ginsburg had to apol­o­gize dur­ing last year’s cam­paign for say­ing she wor­ried for the coun­try should Mr. Trump be elected, and ac­cus­ing him of be­ing “a faker.”

More than 50 House Repub­li­cans this week fired off a let­ter say­ing that cre­ates a sit­u­a­tion where her “im­par­tial­ity might rea­son­ably be ques­tioned” — the stan­dard laid out in law for a jus­tice to drop out of a case.

“You are bound by law to re­cuse your­self from par­tic­i­pa­tion in this case,” said the Repub­li­cans, led by

Rep. Ron DeSan­tis, Florida Repub­li­can.

None of the par­ties in the cases have of­fi­cially asked her to step aside, and she took part in the de­ci­sion is­sued this week, in which the court said it will take up broader ar­gu­ments in Oc­to­ber, but al­lowed a lim­ited ver­sion of the travel ban to take ef­fect in the mean­time.

The court is­sued an un­signed per cu­riam opin­ion, so Jus­tice Ginsburg didn’t re­veal her per­sonal lean­ings, but her par­tic­i­pa­tion sig­nals she’s not likely to step aside.

“I would take that as a sig­nal that she is not go­ing to re­cuse,” said Michael More­land, law pro­fes­sor at Vil­lanova Univer­sity.

The law says a jus­tice “shall” re­cuse him­self or her­self if their im­par­tial­ity might be ques­tioned, but le­gal schol­ars said the fi­nal de­ci­sion rests with the judges them­selves — and they of­ten err on the side of sit­ting.

Lu­men Mul­li­gan, as­so­ciate dean at the Univer­sity of Kansas School of Law, told The Wash­ing­ton Times that Supreme Court Jus­tices of­ten feel they have an obli­ga­tion to hear a case be­cause there’s only nine jus­tices and a re­cusal would leave the court un­der­staffed.

“This would be dif­fer­ent if Jus­tice Ginsburg was a trial court judge — eas­ily re­placed,” said Mr. Mul­li­gan.

Ron­ald Ro­tunda, a law pro­fes­sor at Chap­man Univer­sity, said one of the rules for fed­eral judges re­quires them to re­frain from po­lit­i­cal ac­tiv­ity and not pub­licly op­pose or en­dorse a can­di­date, and he said Jus­tice Ginsburg’s com­ments could be in­ter­preted as an en­dorse­ment of one pres­i­den­tial can­di­date, Hil­lary Clin­ton, over the other, Mr. Trump.

“She means he’s nuts and so I’m for the other per­son,” said Mr. Ro­tunda. “The most nat­u­ral in­ter­pre­ta­tion would be that she should dis­qual­ify her­self to avoid the ap­pear­ance of im­pro­pri­ety.”

The Code of Con­duct for Fed­eral Judges doesn’t specif­i­cally bind the Supreme Court, but Chief Jus­tice John G. Roberts, Jr., has said the court fol­lows it.

Robert Tuttle, law pro­fes­sor at Ge­orge Wash­ing­ton Univer­sity, said Jus­tice Ginsburg will con­sider whether she feels she can give the pres­i­dent’s pol­icy a fair hear­ing.

“The real ques­tion is whether it ef­fec­tively makes them in­ca­pable of judg­ing the case in­de­pen­dently and that’s some­thing that re­ally only they can say,” he said. Re­cusal de­ci­sions can be con­tro­ver­sial. Le­gal ex­perts pointed to the calls for the late Jus­tice An­tonin Scalia to re­cuse him­self from a 2004 case in­volv­ing then Vice Pres­i­dent Dick Cheney be­cause the two of them were hunt­ing bud­dies. Scalia didn’t heed those calls.

“If that is a prece­dent, Jus­tice Ginsburg’s com­ments, which don’t go nearly as far as go­ing hunt­ing with the per­son who is the named party, would seem to be less,” said Mr. Mul­li­gan.

But Mr. Ro­tunda said Scalia did re­cuse him­self from a case in­volv­ing whether the words “un­der God” should be re­moved from the Pledge of Al­le­giance af­ter he had made public com­ments on how he thought the lower court had wrongly de­cided that case.


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