Ginsburg hints: Senators who can't be impartial in Trump's trial should be disqualified

The clip below is short so it may be that her remarks are incomplete, but the point seems clear enough from the excerpt. “The House indicts, and the Senate tries. Should a trier be impartial? Of course, that’s the job of an impartial judge,” she says, adding that a judge who can’t be impartial in a matter should be disqualified.

Does that mean she thinks Mitch McConnell and Lindsey Graham should be disqualified from Trump’s impeachment trial?

“I’m not an impartial juror,” the Senate majority leader said Tuesday after a reporter asked him what his message is to Americans who might have concerns about his ability to be impartial during the anticipated Trump trial.

“This is a political process. This is not anything judicial about it,” the Kentucky Republican continued.

“Impeachment is a political decision. The House made a partisan political decision to impeach,” he said. “I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.”

Why the hell is Ginsburg commenting on a pending legal proceeding, particularly one as momentous as impeachment? There were two different politic answers she could have given instead. One: “Impeachment is between the legislature and the executive. I don’t feel it’s appropriate for a member of the judiciary to opine, even informally.” Two: “I can’t comment because there’s a possibility that some matter related to impeachment will come before the Court.”

But she can’t resist taking the bait on Trump questions, even though she’s learned the hard way how ethically perilous that can be for her.

“Justice Ginsburg exercised terrible judgment in this interview,” says law prof Josh Blackman today at the Volokh Conspiracy of the BBC interview below, and not just because of the part where she hints at senators being disqualified. She also goes on to say in response to a comment by Trump that SCOTUS might review impeachment, “The President is not a lawyer, he’s not law trained,” her way of politely calling Trump an ignoramus. Blackman:

Putting aside the propriety of her remarks, Ginsburg’s snide remark is wrong. Walter Nixon v. U.S. left open at least three circumstances in which courts could review an impeachment. Moreover, Alan Dershowitz wrote in his book that there are additional circumstances in which an impeachment could be reviewed in Court. Agree or disagree with these positions, Ginsburg was rude and arrogant to suggest that Trump’s views should be dismissed due to his lack of legal training.

Moreover, Ginsburg’s comments are even worse, in light of the President’s unique station in our Republic. The President is charged with taking an oath to that Constitution. To say the President doesn’t even understand the document he is charged with faithfully executing the Constitution, is to say the President cannot comply with that oath. (I think a lot of judicial decisions we’ve seen are quietly motivated by what Ginsburg publicly stated.)

Blackman wrote separately about the Walter Nixon case last month, arguing that the Court could review an impeachment proceeding in theory to ensure compliance with the three constitutional requirements — the chief justice presides, the president is removed only on a two-thirds vote, and … members of the Senate must be under oath. The “oath” part is directly related to the left’s argument against McConnell and Graham, that they’re violating in advance the oath they’re set to take under Senate rules that requires them to be impartial jurors in the president’s case.

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? “I would not be surprised if some members of the Senate quoted RBG’s remarks to criticize their colleagues neutrality,” Blackman noted at one point in today’s post. Indeed. Ginsburg is now a player in this dispute, inadvertently or not, not just a potential adjudicator. Way to go.

A point to ponder before you watch the clip: How many other senators would need to be disqualified under the Ginsburg Rule? They ain’t all Republicans, you know.

Sounds like Sen. Harris has made up her mind before formally hearing the evidence. Go figure that a former prosecutor wouldn’t wait for the defense before rendering her verdict.

Jazz Shaw May 06, 2021 7:58 AM ET