Justice Ruth Bader Ginsburg is not an impartial jurist — not when it comes to the same-sex “marriage” cases, at least. Everyone knows it. Instead of giving confidence to the American public by being above reproach while the same-sex “marriage” cases are being considered, Justice Ginsburg is going out of her way to embarrass the court with unethical antics aimed at assuring pro-same-sex “marriage” supporters and humiliating opponents.
If there were any doubts that she should be nowhere near the bench while standing full force in support of one side of the issue, they were all dispelled last weekend when she decided it was appropriate to officiate a same-sex “wedding.” Justice Ginsburg apparently got a kick out of emphasizing the word “Constitution” when “she was pronouncing the two men married by the powers vested in her by the Constitution of the United States,” according to a report by Maureen Dowd of The New York Times. It was “the most glittering moment for the crowd,” which began applauding, wrote Ms. Dowd.
If this is not improper, nothing is. Justice Ginsburg’s actions disqualify her to decide the same-sex “marriage” cases, whether she ultimately recuses herself or not. “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” reads the 28 U.S. Code, Section 455. The violation is laughably clear in this instance.
Justice Ginsburg should recuse herself before the opinion in the same-sex “marriage” cases is handed down. No reasonable person can take her opinion seriously at this point, and the court’s reputation will take another big hit if she doesn’t.
Noted legal scholars, such as Ed Whelan from the Ethics and Public Policy Center, had long ago made a compelling case for Justice Ginsburg’s recusal. In a piece in National Review, Mr. Whelan highlighted Justice Ginsburg’s own words on the topic in her opening statement at her confirmation hearing in 1993: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
The liberal justice’s own words indict her. She displays disdain for the court, the judicial process and the American people — liberal or conservative, Republican and Democrat, for or against same-sex “marriage.” Her refusal to disqualify herself from these cases will undoubtedly tarnish her legacy and diminish the already-shaky legitimacy of the U.S. Supreme Court.
The case is, of course, compounded to the point of farce considering Justice Ginsburg’s other recent improprieties on the matter. She told Bloomberg it “would not take a large adjustment” for the public if the justices invent a constitutional right to “gay marriage.” And she practically predicted the outcome of the case to The New York Times, saying, “I would be very surprised if the Supreme Court retreats from what it has said about same-sex unions,” referring to the recent Windsor decision, which struck down part of the Defense of Marriage Act. She did the same by explaining to the National Law Journal that the “main theme” of the “gay marriage” cases is “the right to be treated with equal dignity.”
No one can say with a straight face that Justice Ginsburg’s actions, as related to this case, have been anything but unwise and unethical. Chief Justice Roberts, who has defended the justices on the matter, wrote in one instance, “I have complete confidence in the capability of my colleagues to determine when recusal is warranted.” He must be appalled by this particular situation. Justice Ginsburg’s shenanigans have done anything but instill confidence.
The Supreme Court’s decision in June will be greatly diminished with her name on the opinion, no matter what the ultimate outcome is. Although Justice Ginsburg apparently feels a strong urge to express herself on this issue, her silence is the only thing that can actually advance her preferred cause.
Will she be able to show the necessary self-restraint? History tells us it is not likely. Instead, the court should brace itself for further embarrassment. She seems to be pushing heavily for the Roe v. Wade of marriage, which is likely to impart just as much damage on the court and the country.
• Mario Diaz is legal counsel for Concerned Women for America.