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Title : Should Justice Ginsburg at least explain why she does not recuse herself in the travel ban case?
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Should Justice Ginsburg at least explain why she does not recuse herself in the travel ban case?

Lawprof Ronald Rotunda — in a WaPo op-ed — says that she should.

We already know what Ginsburg thinks of the president. She told us more than a year ago that she “can’t imagine what the country would be . . . with Donald Trump as our president.” Facing criticism for her apparent endorsement of Hillary Clinton and her attacks on Trump, Ginsburg doubled down, emphasizing in a CNN interview: “He is a faker.” She then went on “point by point, as if presenting a legal brief,” the CNN analyst said.

Her statements are particularly troubling in the context of the travel ban case, in which the crucial issue — at least, according to the lower courts and the plaintiffs — is the personal credibility of Trump and whether he delivered his executive order in good faith — in other words, whether he is faking it....

This reminds me most of Justice Sandra Day O'Connor, watching the election results at a party on November 7, 2000, as described (on Christmas Eve, 2000) by Michael Isikoff in Newsweek, :

[S]urrounded for the most part by friends and familiar acquaintances, she let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess's den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. "This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years.

Not long after that outburst, O'Connor participated in the Bush v. Gore litigation. Should she have recused herself?

Ah, here's a Washington Post piece by Aaron Blake from the summer before the 2016 election, talking about whether Ginsburg should have to recuse herself:

It's not clear that there is any real precedent for what Ginsburg just did.

Then-Justice Sandra Day O'Connor was criticized by some in 2000 after Newsweek reported her saying, "This is terrible," at an election-night watch party after Florida was prematurely called for Al Gore. Some argued that she should have recused herself from Bush v. Gore.

In some ways, what O'Connor did seems worse, since she revealed a personal interest in seeing Bush elected (though she did not retire until after he was re-elected). But Rotunda identifies a special problem with Ginsburg's indiscretion: The case may turn on whether to trust Trump about whether the purported reason for the ban is the real reason. She's asked to decide if it's real or fake, and she called Trump a faker.

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