U.S. Supreme Court

Republicans call on Ginsburg to recuse herself in travel ban case

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Justice Ruth Bader Ginsburg. Linda A. Cicero / Stanford News Service

Corrected: Fifty-eight Republican lawmakers are calling on Justice Ruth Bader Ginsburg to recuse herself in the travel ban case that will be argued before the U.S. Supreme Court.

The lawmakers sent a letter to Ginsburg saying she should recuse herself because of critical comments she made about Donald Trump during the presidential campaign. Ginsburg said Trump is “a faker” who “has no consistency about him.”

The National Law Journal (sub. req.) and the Washington Times have coverage.

“I can’t imagine what the country would be with Donald Trump as our president,” Ginsburg had said.

The letter (PDF) asserted that Ginsburg is “bound by law” to recuse herself. “There is no doubt that your impartiality can be reasonably questioned; indeed, it would be unreasonable not to question your impartiality,” the letter said. “Failure to recuse yourself from any such case would violate the law and undermine the credibility of the Supreme Court of the United States.”

Experts interviewed by the National Law Journal expressed doubt that Ginsburg is obligated to recuse herself, and said she is unlikely to do so. The article points out that no parties to the case have sought Ginsburg’s recusal.

Hofstra University law professor James Sample noted in an interview with the NLJ that Ginsburg’s comments did not specifically address the travel ban. “Were a case to come before the court that more directly involved President Trump as an individual party, the arguments for Justice Ginsburg’s recusal would be stronger than they are here,” he said.

But Chapman University law professor Ronald Rotunda told the Washington Times that Ginsburg’s comments could be interpreted as an endorsement of Hillary Clinton, and ethics rules require federal judges to refrain from opposing or endorsing a candidate. The rules don’t specifically apply to the U.S. Supreme Court, but Chief Justice John G. Roberts Jr. has said the court follows them.

Second to the last paragraph corrected at 10:10 p.m. to attribute the quote to Sample.

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