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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Saturday, July 30, 2016

Notorious RBG and an Independent Judiciary

United States Supreme Court Justice Ruth Bader Ginsburg, sometimes known by her tag Notorious RBG, has been mixing it up of late, openly trashing Republican presidential nominee Donald Trump in a series of interviews. She asserts Trump is uniquely disqualified to be President and that the exercise of his powers of appointment under Article II of the U.S. Constitution would be catastrophic for the federal judiciary and the SCOTUS.

Now, full disclosure: if you were to stroll down the halls of our law firm, you'd bump into a few card-carrying Republicans, but you would not likely find a Trump supporter among them. Nevertheless, we here at the Law Blogger do find it disturbingly distasteful whenever a SCOTUS justice speaks their mind about a sitting President or, more generally, partisan politics.

There are good reasons for that. The federal judiciary is designed to remain independent of the other two branches of government. Recognizing that partisan politics are alive and well at the High Court and throughout the federal courts across the nation, legal professionals still count on the judges assigned to their cases to bring an unbiased and neutral mindset to the decisions they make based on the evidence presented in the cases.

When justices speak out publicly, it shatters this illusion. Who could forget election night 2000 when Justice Sandra Day O'Connor, the first woman appointed to the SCOTUS, infamously quipped that it was "terrible" that Al Gore was apparently heading for victory and then, months later, participated in one of the more historically partisan decisions ever to be issued by the High Court.

The code of judicial ethics only binds lower federal court judges; one tenet proscribes a federal judge from commenting on a presidential election. While this ethical code does not bind justices of the Supreme Court, there is nevertheless a powerful custom, usually observed by the justices, requiring them to maintain a safe distance from the partisan politics in which the other  two branches marinate.

Predictably, Trump immediately called upon RBG to resign following her public commentary on his candidacy. Democrats have been calling for the 83 year old justice to resign since 2010, long before President Obama became a lame duck, now powerless to appoint a successor to the Notorious One.

Post #552

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