Ginsburg's Support for Sotomayor

In a recent interview with the New York Times Magazine published on July 12, sitting Supreme Court Justice Ruth Bader Ginsburg said the following regarding nominee Sonia Sotomayor’s “wise latina” comment:

“I thought it was ridiculous for them to make a big deal out of that. Think of how many times you’ve said something that you didn’t get out quite right, and you would edit your statement if you could. I’m sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table.”

It has already been confirmed that Sotomayor made the same comment nearly verbatim in 1994, 2002, 2003 and likely at other events, so the factuality of Ginsburg’s comment needn’t be debated — Sotomayor obviously meant what she said and clearly wouldn’t have rephrased it because she said it the same way many other times. Sotomayor knows exactly what she said — she doesn’t need someone else to break it down for her.

Even if Ginsburg’s statement were correct: Who would want a judge who can’t articulate his or her opinion, thus leading to startling consequences?

But Ginsburg’s defense of Sotomayor is a problem in and of itself: It’s not just uncouth but inappropriate and inconsistent with the code of judicial ethics for a sitting Supreme Court justice to defend or attack a nominee. The screening process is not the responsibility of the justices, but rather of the legislature. As Obama would say, analyzing Sotomayor’s statements and qualification is above Ginsburg’s “paygrade.”

The Second Canon of the U.S. Code of Judicial Conduct — drafted by the American Bar Association (ABA) and updated on July 1, 2009 — reads as follows regarding “outside influence”:

“A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.”

In the commentary regarding Canon 2, the ABA explains that this applies to both public and private behavior and statements, even if this restraint may be “viewed as burdensome by the ordinary citizen.”

Ginsburg’s personal interest in seeing Sotomayor confirmed by the Senate is a theme that runs throughout the quite long feature article in the New York Times Magazine. While the commentary further explains that a judge may be active in the authorities and screening committees that select nominees, sitting judges must: “In contracts for publication of a judge’s writings, a judge should retain control over the advertising to avoid exploitation of the judge’s office.”

But, as Canon 4 states, “complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives.”

Justice Ginsburg is free to give interviews to publications if she so desires: She can talk candidly and express her more personal beliefs.

But her comments regarding Sotomayor make it seem that she is advocating for a political candidate. She talks about Sotomayor as if she has been elected to an office already and should thus not face scrutiny for her past comments.

While it may not regard the appoint of a judge, but rather a political candidate, perhaps the conditions of Canon 5a should be mentioned:

“A judge should not […] make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.”

The point of selecting a judge to the Supreme Court is not to pick a candidate who will represent a certain group or ideology; the point is to select someone who has a profound knowledge of and respect for the Constitution, is unbiased, can articulate a position well and has a firm understanding of judicial responsibility.

If Ginsburg thinks that Sotomayor needs her backing as if she were a politician with a special interest group in mind, then maybe a more scrutinizing eye should be cast towards the nomination in the Senate questioning.

For a copy of the code, click here.