Supreme Court Justice Ruth Bader Ginsberg sat for an interview with BBC’s Razia Iqbal at an event where she received the “Berggruen Prize for philosophy and culture, which is awarded annually to someone whose ideas “have profoundly shaped human understanding and advancement.” The audience absolutely adored Ginsberg. Each of her responses was followed by laughter and applause. (A brief clip of this portion of the interview can be viewed on the BBC’s website here.)
Iqbal’s questions had been prompted by comments made recently by Senate Majority Leader Mitch McConnell. A reporter had asked him what his message would be to Americans who might have concerns about his ability to be impartial during the anticipated Trump trial. McConnell said, “I’m not an impartial juror. This is a political process. There is not anything judicial about it…Impeachment is a political decision. The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.”
Iqbal asks Ginsberg if a member of the Senate, sitting in an impeachment trial, should be impartial.
Ginsburg: The House indicts, and the Senate tries. Should a trier be impartial? Of course, that’s the job of an impartial judge.
Iqbal: You will be very aware that there are Senators who are already saying before the impeachment gets to the Senate or the trial in the Senate, they’ve already made their minds up. That’s problematic.
Ginsburg: Well if a judge said that, a judge would be disqualified from sitting on the case.
Iqbal: But it’s about the level of accountability. So if a Senator says I’ve already made my mind up and the trial doesn’t even exist at the moment, there is no accountability is there?
Ginsburg: My old Chief, Chief Justice Rehnquist put it very well. He said, “The day a judge stops being impartial, and starts to do things to please the home crowd, whatever your home crowd is, that’s the day that judge should step down from office.”
There are so many things wrong with this exchange.
First, the senators act as jurors in an impeachment trial, not judges. Supreme Court Chief Justice John Roberts will preside over the Senate trial.
Second, if as Ginsberg suggests, impartial senators should recuse themselves, where exactly would she draw the line? Does she believe that Minority Leader Chuck Schumer is impartial? Or Dick Durban? She is well aware that the House and the Senate are partisan bodies. If McConnell and Lindsey Graham were forced to recuse themselves over their impartiality, every senator would have to recuse themself. They are all highly partisan. And, just as Sen. Harris appears to have already made up her mind on how she will vote, it’s likely they all have.
Third, there is a chance certain aspects of this case could wind up before the Supreme Court. Last week, for example the Court agreed to review three cases related to subpoenas issued by the House Oversight and Financial committees and New York State prosecutors for the President’s financial records. I posted about this story here.
Hot Air’s Allahpundit weighed in on this question too:
If Schumer or Pelosi (or whoever might have standing) sues McConnell and Graham, arguing that they’ve disqualified themselves from the trial, presumably SCOTUS could choose to hear that appeal. Could Ginsburg take part in that case now, having already stated her opinion that senators have a duty to be impartial as the triers of fact in impeachment? Ginsburg is now a player in this dispute, inadvertently or not, not just a potential adjudicator. Way to go.
A Supreme Court Justice shouldn’t need to be told not to talk about the impeachment publicly.
Look who’s impartial now.