“Justice Ruth Bader Ginsburg needs to drop the political punditry and the name-calling,” The New York Times editorial board said.<\/a> The Washington Post agreed<\/a>.<\/p>\n Even her most ardent fans were at a loss to defend her descriptions of Trump as a \u201cfaker,\u201d criticizing his failure to hand over his tax returns and saying his presidency would be too dire to contemplate.<\/p>\n \u201cI adore Justice Ginsburg,\u201d Robert Wexler, the former Florida congressman whose autobiography is titled \u201cFire-Breathing Liberal,” told JTA in an email. However, he added, \u201cIt’s fair to say Mr. Trump doesn’t bring out the best in people.\u201d<\/p>\n Truth is, there isn\u2019t much wiggle room for a defense: The American Bar Association\u2019s ethical guidelines<\/a> say flat out that a judge \u201cshall not \u2026 publicly endorse or oppose a candidate for any public office.\u201d<\/p>\n Not that the ABA guidelines have much practical consequence in this case: Supreme Court justices are inviolate \u2013 once they\u2019re in, they\u2019re pretty much in until they want to leave, or they die. Ginsburg, 83, however much this taints her legacy, will remain a fixture of the court.<\/p>\n \u201cJudicial ethics prohibit candidates from commenting on public office,\u201d said David Bernstein, a legal scholar who opines for the Washington Post. \u201cEven though the Supreme Court justice are not bound by the code,\u201d Ginsburg\u2019s outburst \u201cdoes not reflect the consensus. It was wildly inappropriate.\u201d<\/p>\n So: What was she thinking?<\/p>\n Here are some theories:<\/p>\n She\u2019s losing it.<\/strong><\/p>\n Trump was characteristically blunt. \u201cHer mind is shot \u2013 resign!\u201d he said<\/a> on Twitter.<\/p>\n Barney Frank, a longtime member of Congress and a liberal who extols Ginsburg\u2019s legacy in advancing rights for women, said it was painful to admit, but Trump may have a point: It might be time for Ginsburg, 83, to go.<\/p>\n \u201cI\u2019m afraid it\u2019s a sign she stayed too long and she\u2019s not functioning,\u201d Frank said in an interview. \u201cI can\u2019t imagine she would have made this mistake 15 years ago. It diminishes her legacy.\u201d<\/p>\n Frank, who retired in 2013, said he was chided by friends for leaving office at the peak of his influence. Just three years earlier, the Massachusetts congressman and\u00a0Sen. Christopher Dodd, D-Conn., had\u00a0rewritten the rules for how Wall Street works with their Wall Street Reform and Consumer Protection Act.<\/p>\n \u201cI retired a couple of months short of my 73rd birthday,\u201d he said. \u201cI said I wanted people to ask why I quit, not why I didn\u2019t quit.\u201d<\/p>\n Ginsburg, he said, should have quit several years ago, when the Obama administration would have guaranteed a liberal replacement.<\/p>\n Sometimes you\u2019ve got to break the rules.<\/strong><\/p>\n The prospect of a Trump presidency is so dire, ethical considerations seem to lose some of their urgency in this case,\u00a0said Mark David Stern, who covers the law and LGBT issues for Slate.<\/p>\n \u201cDonald Trump is not an ordinary presidential candidate, or an ordinary Republican,\u201d Stern wrote<\/a>. \u201cHe is a racist, misogynistic, xenophobic bigot. He has proposed banning Muslims from entering the United States; called Mexican immigrants rapists and criminals; supported the deportation of 11 million undocumented immigrants; routinely treated women with sexist disdain; advocated for torture of suspected terrorists; and generally dismissed the rule of law.\u201d<\/p>\n Ginsburg, he said, was right to \u201csacrifice some of her prestige in order to send as clear a warning signal about Trump as she possibly can.\u201d<\/p>\n Everyone does it.<\/strong><\/p>\n Noah Feldman, a Harvard law professor, wrote<\/a> on Bloomberg News that the rules Ginsburg was ostensibly violating were mostly honored in their breach.<\/p>\n He listed open clashes between Supreme Court justices and presidents dating to John Marshall, who as secretary of state campaigned for John Adams in his unsuccessful bid for reelection in 1800. Thomas Jefferson won the election, but before he took office, Adams named his friend chief justice while keeping him as secretary of state. Marshall stopped being secretary of state once Jefferson was inaugurated, but remained a notable thorn in Jefferson’s side as a justice.<\/p>\n Besides, wrote Feldman, “Doesn\u2019t everyone have an outspoken Jewish grandmother?\u201d<\/p>\n
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