“[A] spouse’s views and actions, however passionately held and discharged, are not imputed to her spouse, and Judge Reinhardt is not presumed to be the reservoir and carrier of his wife’s beliefs.” So declared leading liberal ethicists in an amicus brief to the Supreme Court a decade ago in Hollingsworth v. Perry, the case challenging California’s Proposition 8 on marriage.
In an essay on NRO’s home page and in various posts on the Corner, Dan McLaughlin has done his usual outstanding job dismantling the manic attacks on Justice Alito over his wife’s flag-flying. Here I’d like to respond to this amazing passage in a Politico column by Ankush Khardori:
Many conservatives have rushed to Alito’s defense. After the first Times story, one Republican lawyer quickly derided the reporting and mounted a classic “they did it too” defense, pointing to liberal judges whose spouses engaged in activism related to cases before them. But [1] none of them did anything remotely like what Alito’s wife did. [2] Alito’s defenders have pointed to remarks that former Justice Ruth Bader Ginsburg made about Trump — that he was a “faker” and would be bad for the country. They may be right that those comments were unwise and perhaps even improper, but she has long since passed away, so it is a debater’s point at best. [Bracketed numbers added.]
On Khardori’s two claims:
1. The actions taken by Judge Stephen Reinhardt’s wife, Ramona Ripston, with respect to the Proposition 8 case far exceed Mrs. Alito’s actions. Here is how I summarized Ripston’s actions in the amicus brief that I submitted:
Ms. Ripston was the longtime Executive Director of the ACLU of Southern California. In that capacity, she was “responsible for all phases of the organization’s programs, including litigation.” Under her leadership, ACLU/SC took “a lead role” in what it called “the fight to end marriage discrimination” in California. ACLU/SC, 2007-2008 Annual Report, 24.
Before filing the lawsuit in this very case, plaintiffs’ lawyers engaged in “confidential discussions” with Ms. Ripston in an apparent effort to win her support for their strategy. See Chuleenan Svetvilas, Challenging Prop 8: The Hidden Story, California Lawyer (Jan. 2010). Under Ms. Ripston’s direction, ACLU/SC was actively involved in this very case. It represented, as counsel in the district court, amici urging the court to decide the case in favor of plaintiffs and to rule that Proposition 8 is unconstitutional.
When the district court issued its ruling against Proposition 8, the ACLU/SC issued a public statement praising the decision and emphasizing that it had “filed two friend-of-the-court briefs in the case supporting the argument that Proposition 8 is unconstitutional.” ACLU/SC, ACLU Hails Historic Decision and Urges Efforts in Other States to Ensure Success on Appeal (August 4, 2010). The press release quoted Ms. Ripston as “rejoic[ing]” in the decision striking down Proposition 8 and as asserting that it “affirms that in America we don’t treat people differently based on their sexual orientation.” At the same time, Ms. Ripston stated that the district court’s ruling was not the end of the matter, emphasizing that “it’s a long road ahead until final victory.” [Citations cleaned up.]
Much as opposing amici found it convenient to imply otherwise, my brief did not contend that Ripston’s support for same-sex marriage should be imputed to Reinhardt. On the contrary, I focused on her actions in the very case. As I summed things up:
[Reinhardt] should have disqualified himself from taking part in the appellate proceedings because his wife consulted in advance with plaintiffs’ counsel about the very decision to file the lawsuit, because she authorized the ACLU affiliate that she led to file amicus briefs supporting plaintiffs in the trial proceedings, and because she publicly celebrated the very ruling that the Ninth Circuit was to review. [Emphasis added.]
So Khardori is right that Reinhardt’s wife did not do “anything remotely like what Alito’s wife did,” but only in the opposite sense of what he intends: Ripston’s actions presented a much more compelling case for Reinhardt’s recusal, and anyone who thinks that Reinhardt was justified in not recusing has no basis for calling for Alito’s recusal.
2. Contra Khardori, Justice Ginsburg’s death doesn’t render moot her intense public criticisms of Donald Trump in the midst of the 2016 presidential campaign and her failure to recuse herself from cases related to her criticisms. One highly relevant question is whether Alito’s critics are applying a very different standard to him than they applied to Ginsburg. The answer to that question appears plain.
Let’s review the facts. In a CNN interview on July 11, 2016, Ginsburg slammed Trump as a “faker” and wondered “How has he gotten away with not turning over his tax returns?” Reporter Joan Biskupic gently observed that Ginsburg’s “well-known candor was on display.”
A New York Times article published the previous day observed that Ginsburg “is making no secret of what she thinks of Trump:
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.
“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.
As I wrote at the time:
For what it’s worth, I also have deep concerns about what a Trump presidency would mean. (Unlike Ginsburg, I also have similar concerns about a Hillary Clinton presidency.) But how does Ginsburg imagine that it’s appropriate for her to set forth publicly her strongly negative views about a presidential candidate? Has any justice ever made comparable remarks praising or condemning a presidential candidate in the midst of the campaign season? How are such remarks compatible with the general judicial duty to promote public confidence in the impartiality of the judiciary?
Ginsburg’s remarks also ought to require her recusal from any dispute over the presidential election that reaches the Court.
Ginsburg did not recuse herself from 2016 election disputes. Nor did she later recuse herself from cases that presented the question whether Trump could be compelled to disclose his tax returns. No, you haven’t forgotten the massive brouhaha over her non-recusals. There was barely a peep in the mainstream media or from legal ethicists.
It’s not a mere “debater’s point” to observe that Justice Ginsburg’s own very public and unambiguous criticisms of Donald Trump created a much more compelling case for her recusal than Mrs. Alito’s flying of flags of ambiguous meaning did for her husband’s recusal.