On the Wednesday edition of MSNBC’s The Last Word, host Lawrence O’Donnell offered an baffling and exhaustive defense of Supreme Court Justice Ruth Bader Ginsburg’s outburst against Donald Trump by pointing to the first Chief Justice’s gubernatorial election record and opining that if Ginsburg is forced to recuse herself from any election-related cases, Catholics should recuse themselves from any abortion case.
O’Donnell’s nearly-eight-minute lecture began by highlighting that talking about past Supreme Court justices in American history that have run for political office started with “very first Chief Justice of the Supreme Court, the legendary John Jay, ran for governor of New York twice while he was Chief Justice” and followed by three others in the centuries since.
While McDonnell’s citing of history was correct, it arguably does not excuse the politicization of the Supreme Court in what’s already a divided time in American history and, as parents will often tell their children, just because someone is doing something, it doesn’t mean that it’s right.
His lame defense continued by stating that “[t]here is no rule or law about when Supreme Court justices must recuse themselves” but soon brought up Bush v. Gore and whined that no justice should have to be recused in a case like that because a “justice had secretly expressed a preference for an outcome in that election by, you know, voting.”
Promising that he’s not making his points simply “to be flippant” but simply since “we’ve never asked them” and “we've simply taken it for granted that Supreme Court justices will never express preferences for presidential candidates and that they will all vote secretly for presidential candidates.”
“If the integrity of the Supreme Court is based on the notion that Supreme Court justices do not have a preference about who wins a presidential election, then the integrity is based on pure fantasy and everybody knows that and judicial impartiality does not require a justice to hold no personal opinions,” he soon added after expressing disagreement with constitutional scholar Jonathan Turley’s take on Ginsburg.
O’Donnell later gushed over the late Mario Cuomo’s pro-abortion stance as a public official but personal opposition to it (a classic liberal excuse to support it), but he first attacked pro-life Justices who belong to the Catholic Church:
Now, no one has ever suggested that the Catholics on the Supreme Court should recuse themselves on cases involving abortion, and none of them ever have and Catholics on the Supreme Court have very consistently ruled against abortion rights, in agreement with their church and no editorial board has accused them of doing that because their religion has undermined the integrity of the Supreme Court, has destroyed the justices' ability to rule on the law and the Constitution
Returning to Ginsburg, O’Donnell made clear for everyone that if a Supreme Court case arose that would decide November’s presidential election, Ginsburg would be able to put aside her far-left ideology to rule on whatever the matter would be.
“There is no reason to believe now that Ruth Bader Ginsburg would be less capable of impartially analyzing the law and the Constitution in an election case, a presidential election case than any other member of the Supreme Court has ever been, including the ones who ran for president,” he concluded before teasing the next segment.
The relevant portions of the transcript from MSNBC’s The Last Word with Lawrence O’Donnell on July 13 can be found below.
MSNBC’s The Last Word with Lawrence O’Donnell
July 13, 2016
10:24 p.m. Eastern
LAWRENCE O’DONNELL: Like everyone else, I had never seen that before. A Supreme Court justice commenting on a presidential candidate, outright opposing a presidential candidate, ridiculing a presidential candidate and my first reaction to it was similar to The New York Times editorial board and The Washington Post editorial board, both of which said Ruth Bader Ginsburg should not have said what she said. But then, in the second minute of thinking about it, I did what I always do. I wondered about precedent. What precedent did we have for supreme court justices' involvement in presidential campaigns? And I vaguely recalled that one or more Supreme Court justices were actually candidates for president themselves, and I wondered had they left the Court? What's the story with that? And just because I had never seen a Supreme Court justice comment on a presidential election didn't mean that there was no precedent for involvement in presidential elections because the supreme court is 227 years old, which say little older than I am and so, The Last Word research team went to work, and thereupon, we quickly discovered that the very first Chief Justice of the Supreme Court, the legendary John Jay, ran for governor of New York twice while he was Chief Justice. The reason he ran twice was because he lost the first time and continued to serve as Chief Justice of the Supreme Court until he won the governorship of New York the second time he ran. He was followed by three Supreme Court justices who ran for presidential nominations and lost while they were Supreme Court justices. And they all continued to serve on the Supreme Court after they lost their presidential campaigns and so, public comment on the Ginsburg situation has been limited to precedents set during the lifetimes of the people now speaking about it.
(....)
O’DONNELL: There is no rule or law about when Supreme Court justices must recuse themselves. It is completely up to the justice and so if you believe tonight that a justice should recuse himself or herself in a case like Bush v. Gore if the justice had publicly expressed a preference for an outcome of that election, then why shouldn't the justice recuse himself or herself if the justice had secretly expressed a preference for an outcome in that election by, you know, voting? I'm not asking these questions to be flippant. I'm asking them because we've never asked them. I've never thought about them before this week. I'm asking them because we've simply taken it for granted that Supreme Court justices will never express preferences for presidential candidates and that they will all vote secretly for presidential candidates. We presume both of those things at the same time and in the process we have taken to pretending that a secret preference's has no effect on impartiality and a public preference somehow does.
(....)
O’DONNELL: If the integrity of the Supreme Court is based on the notion that Supreme Court justices do not have a preference about who wins a presidential election, then the integrity is based on pure fantasy and everybody knows that and judicial impartiality does not require a justice to hold no personal opinions. It does not require a justice to be able to — it requires a justice simply to be able to look at the law and make a ruling despite the justice's own personal opinion. Now, no one has ever suggested that the Catholics on the Supreme Court should recuse themselves on cases involving abortion, and none of them ever have and Catholics on the Supreme Court have very consistently ruled against abortion rights, in agreement with their church and no editorial board has accused them of doing that because their religion has undermined the integrity of the Supreme Court, has destroyed the justices' ability to rule on the law and the Constitution.....But there is no reason to believe now that Ruth Bader Ginsburg would be less capable of impartially analyzing the law and the Constitution in an election case, a presidential election case than any other member of the Supreme Court has ever been, including the ones who ran for president. Now, this is all kind of a new thought experiment area for me, and I want to check my thinking with a law professor who's been thinking about these things longer than I have and remember, the Supreme Court runs on mystique. That's why they won't allow cameras in the courtroom. The Supreme Court needs the mystique of pure impartiality, but we haven't really thought very much about what impartiality really is and what personal opinions really mean in the world of Supreme Court justices.
