A few days ago, US Supreme Court Justice Ruth Bader Ginsburg, appointed by former President Bill Clinton, began to rant about presumptive Republican Presidential candidate, Donald Trump. In doing so, she expressed both her political opinions and her intense dislike for him. She said that Bill Clinton’s wife, Hillary Clinton, was sure to win in the upcoming election.
A number of commentators noted the inappropriateness of these statements. Most liberals and conservatives agree that it is inappropriate for a Supreme Court Justice to engage in political campaigning. Many conservatives expressed outrage at the alleged “politicization” of the court, and liberals expressed concern that Ginsburg would now be required to “recuse” herself from decisions involving the upcoming election.
The issue is far more serious than most of the commentators realize. Ginsburg’s statements are not merely inappropriate. They are overtly unethical, and she has acted in direct violation of the published Code of Conduct for United States Judges. For example, Canon 4 of the Code states, in pertinent part:
“…a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality…”
Canon 5 (A)(2) states that:
“A judge may not make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office;”
Canon 5 (C) provides that:
“A judge should not engage in any other political activity.”
Yet, everyone knows that Ginsburg is not an idiot. Or, at least, she has never been viewed as an idiot over the course of her career. Why would Justice Ginsburg violate the Code in such an egregious manner and put both herself and the court into serious disrepute? Her intention behind her emotional outbursts was obvious. She wanted to hurt Donald Trump’s candidacy. The reality, however, turned out quite different. She ended up strongly bolstering it.
Ginsburg made it crystal clear, to every Republican, that the next election is not so much about Trump, as it is about appointments to the Supreme Court. That insures that any Republicans who might have been on the fence, about the man, will now vote for Trump. Why did she do it? The answer is simple, in my opinion, and it has to do with her age and infirmity. She is 83 years old.
Like a large minority of people in her age group, Justice Ginsburg is quite obviously senile. Yet she is still on the bench. What do we do with her? What do we do with other judges, like Ginsburg, who are mentally unfit to serve but refuse to step down? The US Constitution provides little assistance. The Founding Fathers gave lifetime tenure to US judges. But, back then, the problem of senile judges was not seriously contemplated. The average lifespan was just over 40 years.
The Constitution provides that federal judges can only be removed by process of impeachment. This was done in order to protect the independence of the judiciary. The grounds for removal are limited to “high crimes and misdemeanors”. Public drunkeness is a misdemeanor. Serious and overt violations of judicial ethics are not.
Ruth Bader Ginsburg is not alone. The problem of senile federal judges is a serious one. There are many other judges whose mental infirmities are so serious that they should resign, but simply won’t. Mental infirmity bleeds into decision-making. When the judge in question begins to make decisions based purely on emotion, as opposed to rational thought and contemplation, it hurts both the individual litigants and society as a whole.
According to an article published in Slate, for example, another federal judge, Judge Richard Owen of the U.S. District Court in Manhattan, in his mid-80s like Ginsburg, was presiding over a serious case, when he asked the following absurd question about email:
“It pops up in a machine in some administrative office, and is somebody there with a duty to take it around and give it to whoever it’s named to?”
The man is an old-timer. Maybe, he never used email. But, he should have known what it is. After all, his most famous case was the trial of banker Frank Quattrone, which revolved around a single e-mail! One lawyer, there during the hearing, commented that Owens no longer seemed to understand what was happening in his own courtroom.
As a society, we have an obligation and a duty to remove senile judges and justices before they can do serious damage. The history of impeachment of federal judges tells us that some are removed for misdemeanors. For example, John Pickering of the United States District Court for the District of New Hampshire was convicted by the Senate on charges of “mental instability and intoxication on the bench” on March 12, 1804. Mark W. Delahay for the United States District Court for the District of Kansas resigned before his Senate trial, after being impeached by the House for “intoxication off the bench as well as on the bench” on December 12, 1873.
As a matter of good practice, judges should be allowed to resign, rather than be removed from office. But, as the law currently stands, there is no mechanism to put pressure on unethical and/or senile judges to resign. The process of removal would be facilitated if Congress passed an Act defining serious violations of the US Code of Judicial Conduct as a misdemeanor. Unethical judges violate the Code all the time. Ethical but otherwise senile judges are bound to violate the Code, in one way or another, sooner or later, just as Ginsburg has done.
A simple majority of Congress is all that is required to allow impeachment of judges who violate the US Code of Judicial Conduct. Actual removal, however, would require a 2/3rds vote of the Senate. The pressure of impeachment, alone, however, would be enough to induce most senile judges to resign. With this new Act of Congress in hand, it will be much easier to remove unethical and/or senile federal judges and justices.