December 11, 2017

RON ROTUNDA ON RECUSAL: Justice Ginsburg has some explaining to do.

The Supreme Court allowed President Trump’s travel ban to go into effect this week, overturning a lower court ruling as a federal appeals court considers the issue. Justice Ruth Bader Ginsburg dissented and did not disqualify herself from that preliminary decision. Two questions emerge: First, why not? And second, will she disqualify herself if the court takes the case?

We already know what Ginsburg thinks of the president. She told us more than a year ago that she “can’t imagine what the country would be . . . with Donald Trump as our president.” Facing criticism for her apparent endorsement of Hillary Clinton and her attacks on Trump, Ginsburg doubled down, emphasizing in a CNN interview: “He is a faker.” She then went on “point by point, as if presenting a legal brief,” the CNN analyst said.

Her statements are particularly troubling in the context of the travel ban case, in which the crucial issue — at least, according to the lower courts and the plaintiffs — is the personal credibility of Trump and whether he delivered his executive order in good faith — in other words, whether he is faking it. It’s no wonder 58 House Republicans sent Ginsburg a letter calling for her recusal because of her comments before the election.

She doesn’t care, because #Resistance. But, once again, efforts to “denormalize” Trump will instead weaken institutions people want to constrain him with.

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