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Divided opinion over whether Justice Ginsburg should recuse herself from a challenge to Texas pro-life law

by | Sep 30, 2014

 

By Dave Andrusko

Supreme Court Justice Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg

As pro-abortion Supreme Court Justice Ruth Bader Ginsburg continues to hand out interviews like Halloween candy, it is/was/always will be utterly predictable that Ginsburg will be lauded for her (fill in the blank—there are lots of possibilities). She is a media favorite and even though some pro-abortion scribes have joined the chorus that she step down in time for President Obama to nominee an equally militant pro-abortionist to the High Court, Ginsburg enjoys excellent publicity.

We’ve written about Justice Ginsburg four times in the last week. She deserved all this attention for all the wrong (from our vantage point) reasons. Suffice it to say, among other items, she reiterated yet again her loathing for the “Hobby Lobby” decision, Congress (one suspects for not enacting her policy preferences), her dislike for Justice Anthony Kennedy, and her hesitation about the ardor of younger feminists who find something else in their lives to worry about besides abortion.

Ed Whelan, who writes at National Review Online, got us to thinking about what Ginsburg told Jeffrey Rosen of the New Republic. She talked about a case that could (actually almost certainly will) be heard by the justices: Texas’s omnibus pro-life bill, HB 2.

Click here to read the September issue of
National Right to Life News,
the “pro-life newspaper of record.”

Rosen lobbed this softball to Ginsburg:

“So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?”

Ginsburg responded, “How could you trust legislatures in view of the restrictions states are imposing?” before specifically trashing the Texas law. For good measure she added, “The courts can’t be trusted either.“

(Why not the courts either? Because the Supreme Court had upheld a law banning partial-birth abortions, a “procedure” so gruesome that only pro-abortionists with iron-cast stomachs and hearts of stone could condone them.)

To his credit, the Legal Times’ Tony Mauro wrote today about criticism, including quoting us. What was wrong with Ginsburg speaking in the manner she had? Mauro gives the context.

“The U.S. Court of Appeals for the Fifth Circuit is currently considering an appeal of an Aug. 29 district court ruling striking down a part of the Texas law that requires abortion clinics to meet the standards for ambulatory surgical centers. Judge Lee Yeakel of the U.S. District Court for the Western District of Texas said the regulation was ‘intended to close existing licensed abortion clinics.’

“No matter how the Fifth Circuit rules, the decision could be appealed to the Supreme Court.”

He quotes Whelan, legal blogger Josh Blackmun, and two experts on legal ethics, Professors Amanda Frost and Jeffrey Shaman. The former two believe Ginsburg’s comments “should disqualify her from participating in any review of the Texas law,” Mauro writes.

While one of the latter two found her words “ill-advised,” both were able to split enough legal hairs to conclude her comments do not require her to recuse herself.

For my part, I was and remain confident what Ginsburg will do. Consider: Ginsburg has become, “an icon to the left, inspiring fanwear and Tumblr tributes,” to quote Rosen.

And such inspirational icons are not likely to be slowed down by a little thing such as prejudging a case that almost certainly will land in her lap.

Please join those who are following me on Twitter at twitter.com/daveha. Send your comments to daveandrusko@gmail.com.

Categories: Supreme Court