Justice Ginsburg has to choose her historic legacy now

How is Justice Ruth Bader Ginsburg, a spirited fighter all her life, going to react to the letter from 58 House Republicans who called for her recusal on the forthcoming travel ban case because of her public disparagement of President Trump during the campaign?  Normally, all three branches of the federal government jealously protect their powers from encroachments by the other two.  And Supreme Court justices are exempt from the rules of judicial conduct that would force a lesser judge in Ginsburg's position to recuse herself.

So it is quite possible for Justice Ginsburg to ignore the letter or dismiss it if she wishes.  Tell the Republicans of The People's House to go pound sand.

But what then?

Though I have never met her and don't consider myself a student of her work, I have to believe that she cares about her place in history.  Her career as an ACLU lawyer demonstrates that from early on she was interested in making an impact on the law and society – and going down in history as a heroine.  That was more important than the financial rewards of other legal careers.

Justice Ginsburg should prepare herself for deep controversy and acrimony for the rest of her judicial career if she does not recuse herself from cases involving President Trump.  She knows she made a big mistake:

Justice Ruth Bader Ginsburg said Thursday that she should not have publicly criticized presumptive Republican presidential nominee Donald Trump and that she would be more "circumspect" in the future to avoid commenting on partisan politics.

The senior member of the Supreme Court's liberal wing had criticized Trump in three separate media interviews since last week, calling him a "faker" and saying she feared for the country and the Supreme Court if he were elected.

Those comments – unprecedented in modern Supreme Court custom – brought criticism and questions over ethics even from usual allies, who said Supreme Court justices should not insert themselves into the elections. The judicial ethics code that binds lower-court judges – but not Supreme Court justices – forbids judges from endorsing or speaking about candidates.

In a statement issued Thursday by the court's public information office, Ginsburg seemed to agree with the criticism, although she did not offer an apology to Trump, who had demanded one.

Ginsburg is in violation of the federal judiciary ethics code if she sits on cases involving President Trump.  Because she is exempt, she can flout the ethics standards of her own branch of government, but she will go down in history for doing so.

Any decision on a case involving President Trump in which she provides the decisive vote will be widely castigated as illegitimate because of her bias.  It will still hold as valid, but the prestige and power of the Court itself starts diminish in some eyes.

And that becomes the responsibility of the chief justice of the United States, John Roberts.

Sooner or later, the chief justice will have to talk to the associate justice about this.  His ultimate leverage would be to go public with an admonition for her to recuse herself to uphold the integrity of the Court itself.

And Justice Ginsburg would find herself working in a very different atmosphere among her colleagues, who would have to be worried about the torrent of criticism on Court decisions as illegitimate.  

It is a problem that won't go away as long as Ginsburg is on the bench.

But she could make it go away by retiring.

That could ensure her place in history as a justice who rose above ideological concerns and did the ethical thing to preserve the dignity of the Supreme Court of the United States, and by extension the legal system.

One label or the other – ethics-challenged partisan or exemplar of judicial ethics – will be what she is best known for unto the ages.  She can ponder that while working in her marble temple.

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