Of the many liberal fulminations spouted during the confirmation hearings on John Roberts's nomination for chief justice, there are few worth remembering. One was Jumpin' Joe Biden's claim that the hearings were Judge Roberts's "job interview" with the American people, and after his confirmation, there would be no way to hold him accountable in his lifetime on the high court. As ignorant of the law as he is of the facts, Sen. Biden obviously didn't know about Title 28, United States Code, Section 455. Which brings us to Justice Ruth Bader Ginsburg and the aforementioned law that bars her from voting in the cases nearest and dearest to her ideology.
Speaking to the New York Bar Association last Wednesday, Ginsburg delivered herself of comments that were entirely political and -- more importantly -- prove beyond a doubt that she has no intention of approaching certain cases impartially.
Ginsburg began by saying she didn't like the idea that she might be the only woman on the Court. She said that the president should nominate a "fine jurist" to replace Sandra Day O'Connor, and that she -- Ginsburg -- had "a list of highly qualified women," but, she continued, "the president has not consulted me." I wonder under which penumbra she fits this idea. There is no provision of the Constitution from which we can draw any inkling that the president is supposed to consult with the court on nominees. And never mind the quaint idea, which virtually every state includes in its code of judicial conduct, that judges mustn't be involved in politics. Politics is all Ginsburg is about.
Ginsburg has her list of prospective women nominees, because, as she said, the president must be particular to choose which woman, and just "any woman will not do." She said there are "some women who might be appointed who would not advance human rights or women's rights." Advance. Not interpret. Not apply the Constitution according to its principles to protect. Advance. Ginsburg's heartfelt belief is, by her own words, that a Supreme Court justice's job is to decide cases in a manner calculated to advance the ideologies of "human rights" and "women's rights." Little Miss Gun Control, Chuckie Schumer, said to Judge Roberts that he wouldn't vote for Roberts if he believed Roberts were an ideologue. Too bad the Senate didn't rule out ideologues before Ginsburg was confirmed.
Because "ideologue" is precisely what Ginsburg is. Her faith is her political ideology, not the Constitution and the other law of our land. At this same New York speech, Ginsburg defended the appalling practice -- most notably by Justices O'Connor and Kennedy -- to refer to foreign law in deciding cases. She said, "I will take enlightenment wherever I can find it...I don't want to stop at a national boundary." Which is a violation of the oaths of office she took on joining the high court. Among the promises she made, and is apparently eager to break, was, "to defend the U.S. Constitution against all enemies both foreign and domestic, and to bear true faith and allegiance to the same." Applying foreign law to U.S. Constitutional cases is anti-democratic. Our system requires Americans to obey laws enacted by our Congress and state legislatures. We aren't expected to obey the laws enacted by the EUnuch parliament or any other foreign legislature, because we have no electoral control over their members. To apply those laws -- or foreign courts' rulings on them -- to U.S. decisions violates the principal freedom we enjoy of self-determination. That should be enough to impeach Ginsburg (and O'Connor and Kennedy), but the thought of doing that will never appear outside the four corners of Loose Canons.
Failing impeachment, the law -- American law, not the law of France or China or the U.N. Security Council -- requires that Ginsburg be excluded from voting on the cases which her remarks encompass. Under Title 28, US Code, Section 455, "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Note the law's mandate is stated as "shall," and not "may."
Because Ginsburg believes her job is to "advance human rights [and] women's rights," she is, by law, disqualified from ruling on those cases. Which means that she may not legally vote on any case that may affect Roe v. Wade or -- for example, in the "human rights" arena -- any case that might affect the manner in which America treats terrorist prisoners in places such as Guantanamo Bay, Cuba.
This is not a trivial problem. When Justice Scalia commented, in a 2003 speech, that he believed the issue of the inclusion of the "under God" phrase in the Pledge of Allegiance should be decided democratically, and not by the courts, he was attacked. As a result of a petition by Michael Newdow, the atheist attacking the Pledge who had won in the Ninth Circuit, Scalia decided to formally recuse himself from the case. What Scalia actually said, "But the new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat," fell far short of what Ginsburg said about her ideological prejudice on women's rights and human rights cases. Scalia, by recusing himself, went farther than the law required him to, avoiding the appearance of impropriety. What will happen when the next Roe v. Wade case comes up and some state attorney general defending a law prohibiting partial-birth abortion petitions to have Ginsburg recuse herself? Don't hold your breath.
The matter will, inevitably, come before the new Chief Justice and Ginsburg's colleagues. Ginsburg is sufficiently dedicated to her ideology to not recuse herself voluntarily. And she will, if necessary to preserve her vote on the cases her ideology drives her to control, destroy the collegiality of the Court that our soon-to-be confirmed new Chief Justice is so dedicated to preserving.
It is an enormous risk for lawyers, and especially those who practice before the Supreme Court, to petition to force the recusal of a sitting judge. If you fail, lawyers believe, you lose your case. Even if you win, you may have angered the other judges sufficiently to tilt their sympathy to the other side. The Supreme Court is certain to be faced with more than one abortion rights case in the next few years. If any party seeking to limit the broad scope of Roe v. Wade fails to petition for Ginsburg's recusal, that failure -- regardless of the risk it entails -- could literally amount to the malpractice of law. After Ginsburg's remarks they really have no choice but to take the risk or suffer the unmistakable practice of ideology by a sitting justice.
TAS contributing editor Jed Babbin, a lawyer, is the author of Inside the Asylum: Why the UN and Old Europe Are Worse Than You Think (Regnery, 2004).