A ‘Notorious’ 2016 for Ginsburg and Comey The justice’s politicking and the FBI director’s appropriation of prosecutorial authority likely did lasting damage.By Laurence H. Silberman
https://www.wsj.com/articles/a-notorious-2016-for-ginsburg-and-comey-1487978570
In one respect, however, the 2016 election campaign was quite troubling. We saw two of our most important legal institutions—the Supreme Court and the Justice Department—bend in the political winds.
Years ago, I gave a speech in which I tried to explain why some justices moved, over time, to a more activist posture, less restrained or principled—in other words, result-oriented. A major factor was the influence of the press. Hence the “Greenhouse effect,” referring to Linda Greenhouse, who covered the justices for the New York Times. The Supreme Court press is increasingly dominated by lawyer-journalists who reflect the change in the composition of law-school faculties, which are now almost uniformly left-activist. That political flavor was recently demonstrated by the stunningly uniform opposition at law schools to the nomination of Jeff Sessions as attorney general.
Since the press’s orientation is sympathetic to activist results, which I think it is safe to say are largely on the left, it is not surprising that the Greenhouse effect is more demonstrable vis-à-vis Republican appointees. And the effect has been particularly strong on Washington neophytes—judicial appointees who had not served in prior Republican administrations and therefore had not yet experienced the attacks of the mainstream press. The neophytes had not yet grown the thicker skin that Republican officials in the executive branch necessarily develop. Compare, for instance, Justices John Paul Stevens, Sandra Day O’Connor,Anthony Kennedy and David Souter with William Rehnquist, Antonin Scalia,Clarence Thomas,John Roberts and Samuel Alito. The latter five had served in Republican administrations, but none of the former had.
The thrust of my speech was that the press swayed judicial decisions. But it never occurred to me that the pressures and inducements would lead to a justice’s open intervention in a political campaign. I refer to my onetime colleague Justice Ruth Bader Ginsburg. To be sure, she isn’t entirely alone. During the campaign, Justice Kennedy publicly lamented its divisive nature, as if he were speaking from Buckingham Palace. Although this is perhaps in bad form for a justice, it pales in comparison to recent statements of “The Notorious RBG.”
There are several possible explanations for Justice Ginsburg’s indiscretion, but I am inclined to blame the activist press for turning her head, encouraging her to speak out, whether in judicial opinions or otherwise. To illustrate how far Justice Ginsburg has come, around the time she was considered for the Supreme Court, she publicly criticized Justice Scalia’s sharp dissents, as well as an opinion of mine in which I referred to one of her opinions as premised on “naked analytical bootstrapping.” I suppose she thought the word “naked” was salacious.
Although she began speaking out more openly as the decades passed, she reached her low point in a stunning interview last summer in the New York Times (where else?). Her comments were as openly political as any justice has been in my memory—perhaps ever:
“I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president,” she told the paper’s Adam Liptak. “For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.”
She added that it reminded her of something her late husband would have said: “Now it’s time for us to move to New Zealand.”
Those remarks were so nakedly political (there I go, using “naked” again) that even the media’s hordes of RBG fans mildly disapproved. She subsequently apologized for attacking Mr. Trump. CONTINUE AT SITE
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