With President Trump’s travel ban headed to the Supreme Court, the burning question on the minds of many is: “Will Supreme Court Justice Ruth Bader Ginsburg recuse herself from the case?” Based on the fourth circuit court of appeals’ legal acrobatics in imposing a stay on the executive order and the statutes regarding these types of matters, one might argue for Justice Ginsburg’s recusal.
Thursday, June 1, the president asked the Supreme Court to uphold his executive order, which bars the entry of immigrants from six predominantly Islamic nations. The first and second iterations of the Trump administration’s travel ban stalled in the courts. However, many believe the reasons for stopping the executive order to be questionable. Judge Paul V. Niemeyer, one of the dissenting members of the fourth circuit court of appeals, stated:
The majority’s new rule, which considers statements made by candidate Trump during the presidential campaign to conclude that the Executive Order does not mean what it says, is fraught with danger and impracticability. Apart from violating all established rules for construing unambiguous texts — whether statutes, regulations, executive orders, or, indeed, contracts — reliance on campaign statements to impose a new meaning on an unambiguous Executive Order is completely strange to judicial analysis.
The court based its decision on comments the president made during the campaign. According to Judge Niemeyer, it is improper for courts to base judgments such as these on comments previously made by the officials involved in the case. He goes on to state:
Moreover, opening the door to the use of campaign statements to inform the text of later executive orders has no rational limit. If a court, dredging through the myriad remarks of a campaign, fails to find material to produce the desired outcome, what stops it from probing deeper to find statements from a previous campaign, or from a previous business conference, or from college?
If the same logic applies to Supreme Court Justice Ruth Bader Ginsburg, then her previous comments about President Trump should prompt her recusal. During the campaign, the Justice called the president a faker. She also stated that if he won the election, it would be “time for us to move to New Zealand.” Her publicly stated opinions of President Trump indicate a bias against the president, which could affect her ruling on the case. The statute regarding recusal seems to demand it. LawNewz states:
The general statute for recusal derives from section 455 of Title 28. There is an occasional misunderstanding that the statute does not apply to Supreme Court justices, but that is incorrect, as it was often rewritten to make it stricter and stronger in its recusal standards after prior Justices failed to recuse. A justice “shall disqualify himself” whenever “his impartiality might reasonably be questioned” and whenever the justice has a “personal bias or prejudice concerning a party.” What matters is not the reality of bias, but the appearance of bias.
Time will tell whether or not Supreme Court Justice Ruth Bader Ginsburg will recuse herself from the travel ban case. It is believed that the Trump administration’s executive order has the best chance of being upheld by the Supreme Court. No doubt the appointment of Neil Gorsuch makes a Trump victory more likely – however, if Ginsburg decides to recuse herself, the likelihood of the travel ban becoming a reality increases even further. If Ginsburg rejects the idea of recusal and the travel ban fails, the Trump administration could cry foul over the appearance of bias on her part. Either way, the American public will find out soon enough.