A Precedent for Ginsburg

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

It’s going to be illuminating to see whether the Supreme Court accepts at face value Justice Ruth Bader Ginsburg’s regrets for entering the fray against Donald Trump. She issued her statement, acknowledging that her remarks in three interviews were “ill-advised,” within hours of the Wall Street Journal issuing an extraordinary editorial calling on her colleagues on the high bench to stage an intervention to deal with her open politicking.

We’re not so sure Justice Ginsberg’s regrets are the logical end of this story. Regrets were just the beginning of the matter in the case of the politicking by Judge Guido Calabresi. A former dean of Yale Law School, Judge Calabresi rides the Second United States Circuit. At a parley of the American Constitution Society in 2004, when President George W. Bush was up for reelection, Judge Calabresi likened the election of the 43rd president to the rise of Il Duce.

Unfortunately for the judge, a reporter of The New York Sun — Josh Gerstein, now of Politico — was in the audience. The resulting story rocked the appeals bench and led to a formal admonishment. This was done by the circuit’s chief judge and then by its Judicial Council. The Council’s ruling makes illuminating reading at a time when even the New York Times is issuing editorials suggesting that Donald Trump is right about Justice Ginsburg.

One of the odd features of the Judicial Council’s decision is that it fails to mention, anywhere in its 16 pages, the name of the judge on whom it is ruling. But there is no doubt that it is Judge Calabresi, whose remarks at the 2004 American Constitution Society parley it quotes extensively. Judge Calabresi began by saying: “I’m a judge and so I’m not allowed to talk politics.” Then he started talking politics.

“I’m going to talk about a deeper structural issue that is at stake in this election,” he said, “and that has to do with the fact that in a way that occurred before but is rare in the United States, that somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power. That is what the Supreme Court did in Bush versus Gore.”

The Supreme Court, Judge Calabresi suggested, “put somebody in power. Now, he might have won anyway, he might not have, but what happened was that an illegitimate act by an institution that had the legitimate right to put somebody in power. The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the King of Italy, that is, the King of Italy had the right to put Mussolini in though he had not won an election and make him prime minister.”

“That,” Judge Calabresi continued, “is what happened when Hindenburg put Hitler in. I’m not suggesting for a moment that Bush is Hitler,” he claimed. “I want to be clear on that, but it is a situation which is extremely unusual. When somebody has come in that way they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power.”

The judge rattled on for a bit more, and, then said: “It seems to me that one of the things that is at stake is the assertion by the democracy that when that has happened it is important to put that person out, regardless of the policies.” Though it was a reference to Mr. Bush’s pending reelection, Judge Calabresi averred that what he’d just said has “got nothing to do with the politics of it. It’s got to do with the structural reassertion of democracy.”

That, of course, was nonsense, and the judge promptly wrote an apology to the Chief Judge of the Second Circuit, a distinguished jurist who had been named to the circuit by his cousin, President George H.W. Bush, father of the president Judge Calabresi was likening to Il Duce. Judge Calabresi claimed to believe that judges “should not publicly support candidates or take political stands.” He said he was “deeply sorry.”

In a letter, Judge Walker formally admonished Judge Calabresi. He also circulated Judge Calabresi’s apology to his colleagues on the circuit. The Judicial Council of the circuit acted the following April. It took a broadminded view of what judges are allowed to think — they can hold political views — and do. But it found that Judge Calabresi had violated the canon that a judge must refrain from political activity or endorse or oppose a candidate for public office.

Will the Supreme Court of the United States take such a formal action in respect of the out-of-control Justice Ginsburg? Will it even acknowledge her regrets? We’ve often said that when the Supreme Court refuses to act — or errs — the only court above is that composed of the editorial pages of America’s press. If that is how this ends, the Supreme Court itself will be the institution that is damaged by Justice Ginsburg’s loss of her restraint.

The New York Sun

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