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
Feb. 24, 2017 6:22 p.m. ET
Justice Ruth Bader Ginsburg and FBI Director James Comey.
Last year we experienced a rather spirited presidential election season. It was probably the fiercest of my lifetime. But we should not be troubled by heated political campaigns. They are the occasional episodes that mark a healthy democracy.
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.
But she did not apologize for the rest of the interview, which included other unethical remarks. She gave a full-throated endorsement of Judge Merrick Garland, whom President Obama had nominated to high court, and repeated Democratic Party talking points about why Republicans should confirm him. “There is nothing in the Constitution,” she said, “that says the president stops being president in his last years.”
Now I will admit that Merrick Garland is a dear friend and I thought him the best Democrat nominee. But judges are ethically bound not to state a public position for or against a pending nominee to a federal court. At that point, it’s a political question. The Supreme Court is not technically bound by the Code of Conduct for United States Judges, but the justices have said they would conform to the same standards.
That isn’t all: Justice Ginsburg was on a roll. She also talked to the Times about the controversial case Friedrichs v. California Teachers Association, involving whether public employees have a First Amendment right to opt out of paying union dues. If Scalia hadn’t died, she said, the court would have come out 5-4 in favor of that idea. She expressed satisfaction with the 4-4 result, which left standing a lower-court ruling in favor of the union. “This court couldn’t have done better than it did,” Justice Ginsburg said—implying that Justice Scalia’s death had a positive result, at least in that case. Moreover, it is quite improper for a justice to disclose the court’s internal discussions, but she certainly implied what Scalia’s position on Friedrichs had been in conference.
She also revealed Justice Scalia’s position on U.S. v. Texas, involving the injunction against President Obama’s immigration order, which came out 4-4 as well. But perhaps the most egregious disclosure involved Fisher v. University of Texas, the affirmative action case. Justice Elena Kagan was recused, making the final outcome 4-3. But Justice Ginsburg announced: “If Justice Kagan had been there, it would have been 5 to 3.” Some recusal. Justice Ginsburg ended her interview by once again expressing hope to overrule both Citizens United v. Federal Election Commission, the 2010 First Amendment case, and District of Columbia v. Heller, the 2008 Second Amendment case.
Ed Whelan, the perceptive and rigorously analytical National Review blogger, saw a silver lining in Justice Ginsburg’s “coming out.” It showed how much the decision-making on the Supreme Court had become result-oriented, at least on the part of some justices. But I thought it terribly sad. I knew Justice Ginsburg once as a disciplined, relatively restrained colleague on the District of Columbia Circuit, and therefore I regret very much her evolution.
That brings me to the other national legal institution that buckled under the pressure of the 2016 political campaign: the Justice Department, where I served as deputy attorney general during the Nixon and Ford years. I refer to the Hillary Clinton email imbroglio.
I do not take any position on the question of whether the Justice Department should have proceeded against Mrs. Clinton. I suspect that if I had been in my former role as acting attorney general, I would have been reluctant to authorize the prosecution of a major-party presidential candidate. I limit my comments to the procedure the department followed, because it was so disturbing.
Attorney General Loretta Lynch’s meeting in June with Bill Clinton on her plane—with no witnesses—was so improper it was bizarre. But instead of formally recusing herself and passing her responsibility in the proceeding to the deputy attorney general, she sort of half-recused herself by stating that she would rely on faceless professional prosecutors and FBI investigators. Importantly, she retained her authority—which could be understood as saying, in effect, she would rely on the professionals if she agreed with them.
As for Deputy Attorney General Sally Yates, as far as I can determine she faded into the woodwork. She re-emerged last month as the holdover acting attorney general who dramatically refused to defend President Trump’s immigration order and was promptly fired. The honorable position, when a political appointee is given a presidential order that offends his conscience, is to resign.
After Ms. Lynch semi-bowed out, we had the extraordinary spectacle of the FBI director, James Comey, holding a press conference in which he announced, essentially, the prosecutorial decision regarding the email investigation. That was not the FBI’s responsibility; its responsibility was to conduct the investigation. Prosecutorial decisions are made by the Justice Department’s criminal division and the U.S. attorneys, supervised by the deputy attorney general and the attorney general—and if the decision is not to prosecute, it is made without public criticism of the target.
Under normal circumstances the manner in which the FBI completes an investigation certainly suggests its view concerning prosecution. There can be some frank discussions between bureau agents and department lawyers. Still, it is not the bureau’s responsibility to opine on whether a matter should be prosecuted, still less to do so publicly. My reaction when I saw the press conference was: Who the hell does Mr. Comey think he is—a legal Clark Kent,emerging in tights from a very tall telephone booth to save the country?
Some have suggested that the attorney general put Mr. Comey in an impossible position, justifying his extraordinary behavior. That is simply not true. She never directly delegated her responsibility to Mr. Comey, and even if she had done so, he should have declined by saying that it was not appropriate for the FBI director.
Inevitably, Mr. Comey was called before Congress to give the legal analysis supporting his decision. I am hesitant to express my view as to the validity of that analysis; others have done so, most notably former Attorney General Michael Mukasey. But I couldn’t help gasping a bit at Mr. Comey’s suggestion that there were constitutional problems with one of the criminal statutes proscribing “gross negligence” in handling classified material. His performance was so inappropriate for an FBI director that I doubt the bureau will ever completely recover.
Even more embarrassing, indeed appalling, the attorney general, when called to testify concerning Mr. Comey’s testimony, took the Fifth. She refused to say anything other than that she agreed with Mr. Comey—whatever he said. Most of the Justice Department alumni with whom I have spoken privately, regardless of party, agree with me. To be sure, many Democrats only expressed that view openly after the second time Mr. Comey communicated to Congress, in late October. His unfortunate letter 1½ weeks before the election was the inevitable product of his testimony, since he had promised to disclose any additional information about the matter to Congress.
It has been suggested that the attorney general (or her invisible deputy) should have directed Mr. Comey not to send that letter. I can understand the attorney general’s reluctance, since it might have prompted Mr. Comey’s very public resignation, something he had threatened before. That would have been quite a mess just before the election. But I thought it inexcusable that the Justice Department’s senior leaders leaked the story that they had asked Mr. Comey not to send a letter. That compounded the institutional problems, because it suggested that the attorney general lacked the authority to order the FBI director not to send it. In my view, this whole mess was the Justice Department’s worst episode since Watergate.
As I ponder the damage done in 2016 to both institutions, the Supreme Court and the Justice Department, I worry that it will be irreversible—that in the future, Supreme Court justices will be induced by aggressive reporters to make injudicious remarks, and that attorneys general (and deputies) will have difficulty limiting the FBI to its investigative role. It would be helpful to have widespread and bipartisan agreement that last year both Justice Ginsburg and Mr. Comey misbehaved.
Judge Silberman is a senior judge on the U.S. Circuit Court of Appeals for the District of Columbia. This article is adapted from a speech he delivered Monday at the Columbia Law School chapter of the Federalist Society.
The justice’s politicking and the FBI director’s appropriation of prosecutorial authority likely did lasting damage.
By
Laurence H. Silberman
Feb. 24, 2017 6:22 p.m. ET
Justice Ruth Bader Ginsburg and FBI Director James Comey.
Last year we experienced a rather spirited presidential election season. It was probably the fiercest of my lifetime. But we should not be troubled by heated political campaigns. They are the occasional episodes that mark a healthy democracy.
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.
But she did not apologize for the rest of the interview, which included other unethical remarks. She gave a full-throated endorsement of Judge Merrick Garland, whom President Obama had nominated to high court, and repeated Democratic Party talking points about why Republicans should confirm him. “There is nothing in the Constitution,” she said, “that says the president stops being president in his last years.”
Now I will admit that Merrick Garland is a dear friend and I thought him the best Democrat nominee. But judges are ethically bound not to state a public position for or against a pending nominee to a federal court. At that point, it’s a political question. The Supreme Court is not technically bound by the Code of Conduct for United States Judges, but the justices have said they would conform to the same standards.
That isn’t all: Justice Ginsburg was on a roll. She also talked to the Times about the controversial case Friedrichs v. California Teachers Association, involving whether public employees have a First Amendment right to opt out of paying union dues. If Scalia hadn’t died, she said, the court would have come out 5-4 in favor of that idea. She expressed satisfaction with the 4-4 result, which left standing a lower-court ruling in favor of the union. “This court couldn’t have done better than it did,” Justice Ginsburg said—implying that Justice Scalia’s death had a positive result, at least in that case. Moreover, it is quite improper for a justice to disclose the court’s internal discussions, but she certainly implied what Scalia’s position on Friedrichs had been in conference.
She also revealed Justice Scalia’s position on U.S. v. Texas, involving the injunction against President Obama’s immigration order, which came out 4-4 as well. But perhaps the most egregious disclosure involved Fisher v. University of Texas, the affirmative action case. Justice Elena Kagan was recused, making the final outcome 4-3. But Justice Ginsburg announced: “If Justice Kagan had been there, it would have been 5 to 3.” Some recusal. Justice Ginsburg ended her interview by once again expressing hope to overrule both Citizens United v. Federal Election Commission, the 2010 First Amendment case, and District of Columbia v. Heller, the 2008 Second Amendment case.
Ed Whelan, the perceptive and rigorously analytical National Review blogger, saw a silver lining in Justice Ginsburg’s “coming out.” It showed how much the decision-making on the Supreme Court had become result-oriented, at least on the part of some justices. But I thought it terribly sad. I knew Justice Ginsburg once as a disciplined, relatively restrained colleague on the District of Columbia Circuit, and therefore I regret very much her evolution.
That brings me to the other national legal institution that buckled under the pressure of the 2016 political campaign: the Justice Department, where I served as deputy attorney general during the Nixon and Ford years. I refer to the Hillary Clinton email imbroglio.
I do not take any position on the question of whether the Justice Department should have proceeded against Mrs. Clinton. I suspect that if I had been in my former role as acting attorney general, I would have been reluctant to authorize the prosecution of a major-party presidential candidate. I limit my comments to the procedure the department followed, because it was so disturbing.
Attorney General Loretta Lynch’s meeting in June with Bill Clinton on her plane—with no witnesses—was so improper it was bizarre. But instead of formally recusing herself and passing her responsibility in the proceeding to the deputy attorney general, she sort of half-recused herself by stating that she would rely on faceless professional prosecutors and FBI investigators. Importantly, she retained her authority—which could be understood as saying, in effect, she would rely on the professionals if she agreed with them.
As for Deputy Attorney General Sally Yates, as far as I can determine she faded into the woodwork. She re-emerged last month as the holdover acting attorney general who dramatically refused to defend President Trump’s immigration order and was promptly fired. The honorable position, when a political appointee is given a presidential order that offends his conscience, is to resign.
After Ms. Lynch semi-bowed out, we had the extraordinary spectacle of the FBI director, James Comey, holding a press conference in which he announced, essentially, the prosecutorial decision regarding the email investigation. That was not the FBI’s responsibility; its responsibility was to conduct the investigation. Prosecutorial decisions are made by the Justice Department’s criminal division and the U.S. attorneys, supervised by the deputy attorney general and the attorney general—and if the decision is not to prosecute, it is made without public criticism of the target.
Under normal circumstances the manner in which the FBI completes an investigation certainly suggests its view concerning prosecution. There can be some frank discussions between bureau agents and department lawyers. Still, it is not the bureau’s responsibility to opine on whether a matter should be prosecuted, still less to do so publicly. My reaction when I saw the press conference was: Who the hell does Mr. Comey think he is—a legal Clark Kent,emerging in tights from a very tall telephone booth to save the country?
Some have suggested that the attorney general put Mr. Comey in an impossible position, justifying his extraordinary behavior. That is simply not true. She never directly delegated her responsibility to Mr. Comey, and even if she had done so, he should have declined by saying that it was not appropriate for the FBI director.
Inevitably, Mr. Comey was called before Congress to give the legal analysis supporting his decision. I am hesitant to express my view as to the validity of that analysis; others have done so, most notably former Attorney General Michael Mukasey. But I couldn’t help gasping a bit at Mr. Comey’s suggestion that there were constitutional problems with one of the criminal statutes proscribing “gross negligence” in handling classified material. His performance was so inappropriate for an FBI director that I doubt the bureau will ever completely recover.
Even more embarrassing, indeed appalling, the attorney general, when called to testify concerning Mr. Comey’s testimony, took the Fifth. She refused to say anything other than that she agreed with Mr. Comey—whatever he said. Most of the Justice Department alumni with whom I have spoken privately, regardless of party, agree with me. To be sure, many Democrats only expressed that view openly after the second time Mr. Comey communicated to Congress, in late October. His unfortunate letter 1½ weeks before the election was the inevitable product of his testimony, since he had promised to disclose any additional information about the matter to Congress.
It has been suggested that the attorney general (or her invisible deputy) should have directed Mr. Comey not to send that letter. I can understand the attorney general’s reluctance, since it might have prompted Mr. Comey’s very public resignation, something he had threatened before. That would have been quite a mess just before the election. But I thought it inexcusable that the Justice Department’s senior leaders leaked the story that they had asked Mr. Comey not to send a letter. That compounded the institutional problems, because it suggested that the attorney general lacked the authority to order the FBI director not to send it. In my view, this whole mess was the Justice Department’s worst episode since Watergate.
As I ponder the damage done in 2016 to both institutions, the Supreme Court and the Justice Department, I worry that it will be irreversible—that in the future, Supreme Court justices will be induced by aggressive reporters to make injudicious remarks, and that attorneys general (and deputies) will have difficulty limiting the FBI to its investigative role. It would be helpful to have widespread and bipartisan agreement that last year both Justice Ginsburg and Mr. Comey misbehaved.
Judge Silberman is a senior judge on the U.S. Circuit Court of Appeals for the District of Columbia. This article is adapted from a speech he delivered Monday at the Columbia Law School chapter of the Federalist Society.
