The Notorious RBG’s Unnecessary Apology

Creative Commons photo by Pete Souza

Creative Commons photo by Pete Souza

Last week, Ruth Bader Ginsburg said in an interview that Donald Trump “lacks consistency” and is “a faker.”

I believe the uproar that ensued was to be expected.

Senate Majority Leader Mitch McConnell stated that Justice Ginsburg’s comments were “totally inappropriate” and House Speaker Paul Ryan said that Ginsburg’s comments “shows bias to me.”

Donald Trump tweeted out a response, “Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me.  Her mind is shot — resign!”

And so, on July 13th, Justice Ginsburg expressed regret, saying in a statement, “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them, judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

But even her statement doesn’t seem to be enough.  The New York Times ran an op-ed, “Why Donald Trump is Right about Justice Ruth Bader Ginsburg.”  CNN ran a piece in response, “Why Ruth Bader Ginsburg is Right about Donald Trump.”  The controversy swirls on.

When I first heard Justice Ginsburg’s comments that Mr. Trump is a faker, I winced.  When she continued and said that there was no consistency to him, I found myself nodding as I thought to myself, “I can’t believe a Justice is saying this!”  I expected Mr. Trump to tweet about it (although in one tweet he stated that she was incompetent and my teeth were set on edge – but that is a whole other topic).  I expected senior Republicans to weigh in.

If I’m honest with myself though, I never really expected the “Notorious RBG” (as her supporters call her) to express regret.

Why not?  Several reasons:

  1. The political leanings of the Supreme Court Justices are not secrets. While I wouldn’t want Chief Justice Roberts speaking at the RNC, or Justice Kagan doing stump speeches for Secretary Clinton, the justices are people with their own political thoughts.
  2. In fact, I would go so far to argue that I want hear the Justices’ thoughts. The Justices have been called the greatest legal minds of their generation.  They are – as one of my students said – “wicked smart.”  They have been trained to look at an issue from all sides and make a reasonable and intelligent argument.  Therefore, the thoughts that they have on our current candidates are going to be reasonable and well thought out rather than a quick spin or the droning of a 24-hour news network.  However, I understand the tradition that encourages them to not speak out about political questions – in order to maintain the decorum and sanctity of the court (But if I could have an off-the-record meeting with them, you bet I would ask).
  3. A person can feel one way but still act in another. You can have a differing thought and still remain impartial.  For example, there are times I think my boss is dead wrong.  And I tell her that.  And then I complete the task that she asked of me.  Why?  It’s my job.  I made my opinion clear but I knew I was going to be completing the task anyway.
  4. The Constitution that Justice Ginsburg interprets and upholds gives her the right to free speech. Why should she be unable to exercise her rights simply because of her job?
  5. Justice Ginsburg is right. Donald Trump is inconsistent.  He often says inflammatory things.  He has threatened to commit war crimes if he becomes President.  He has told supporters that he will pay their legal fees if they hurt protesters at his events.  He has praised Saddam Hussein.  He has mocked people with disabilities.  He has flip flopped on the topic of abortion.  He has threatened to sue newspapers for criticizing him.  The list goes on.

Should Justice Ginsberg have made the comments she made?  She wasn’t going to change anyone’s mind.  A Donald Trump supporter wasn’t going to wake up and say, “Well, I was going to support Donald Trump but then the Notorious RBG said he was inconsistent, so I am going to support Clinton now.”  The people who listen to her are probably not the same people who support Donald Trump.

She shouldn’t have said what she did.  The court should, at least, maintain the perception of being above partisan politics.

But I really wish she didn’t express regret for saying what she did.


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