Trump Calls on RBG, Sotomayor to Sit Out Future Cases

Ginsburg ignored congressional recusal requests in 2018

• February 25, 2020 11:50 am


President Donald Trump urged Justices Ruth Bader Ginsburg and Sonia Sotomayor to recuse themselves from all "Trump-related matters" pending before the Supreme Court in a pair of Monday night tweets.

The message comes less than one month before the justices will consider the president's challenges to three subpoenas issued for his private financial records.

"I just don't see how they can't recuse themselves from anything Trump or Trump-related," the president told reporters after sending the tweets. Trump added that Ginsburg in particular "went wild during the campaign."

"Perhaps she was for Hillary Clinton," the president said.

Neither Ginsburg nor Sotomayor has indicated that they will recuse themselves from two cases centered on subpoenas for the president's financial records. The first case involves subpoenas from congressional Democrats, while the second concerns an ongoing investigation by New York County district attorney Cyrus Vance.

Aside from those disputes, other Trump-related challenges sit before federal appellate courts and may reach the Supreme Court. Among them are cases asking whether the president's continued involvement with his private business interests violates an anticorruption provision of the Constitution called the emoluments clause. Emoluments-related lawsuits are currently underway before the Fourth U.S. Circuit Court of Appeals and the U.S. Court of Appeals for the D.C. Circuit. A third is pending before a trial judge in New York.

Requests that the justices recuse themselves from certain cases are uncommon and usually futile. Liberal judicial groups demanded that Justices Samuel Alito and Brett Kavanaugh recuse themselves from a gay-rights case argued in October after photos showed the pair standing alongside leaders of the National Organization for Marriage, a pro-traditional marriage group that filed a brief in the case. The Court has not publicly responded to that request.

In 2017, 58 House Republicans called on Ginsburg to recuse herself from litigation involving the Trump administration's travel sanctions. Lawmakers pointed to comments she made during the 2016 campaign when she called Trump a "faker," since the president's credibility was directly at issue in those cases. Ginsburg rebuffed the recusal request and joined the dissent in a 5-4 ruling upholding the sanctions.

The justices generally do not disclose why they remove themselves from particular cases, though reasons are sometimes readily identifiable. Financial conflicts are a common cause of removal, as is prior involvement in a given dispute.

The president, who is on a two-day trade mission to India, tweeted the statement following a segment on Laura Ingraham's Fox News program. Ingraham and the Judicial Crisis Network's Carrie Severino discussed a furious dissent Sotomayor handed down Friday night after the Court lifted an injunction barring the enforcement of a new administration rule that would deny green cards to migrants enrolled in government assistance programs. The policy is called the public charge rule.

Trial judges around the country entered injunctions against the rule shortly after it was issued in August 2019. Though those cases are still proceeding through the courts, the administration leap-frogged the normal process and asked the justices to lift the injunctions for the time being. Though that tactic, called a stay application, is unusual, the Trump administration has used it some two-dozen times since 2017, often to good effect.

In her dissent on Friday, Sotomayor said the Court's conservative majority was "reflexively" granting the government's stay applications. Those decisions put "a thumb on the scale" in the government's favor as the cases go forward, she said, adding that her conservative colleagues appear to be treating the Trump administration with special solicitude.

Ingraham's segment and the president's tweets also referenced comments Ginsburg made to the press during the 2016 election, in which she called the president a "faker" and joked that she would move to New Zealand if he was elected. Ginsburg's partisan intervention was unprecedented for a Supreme Court justice in recent memory. She promised to be more "circumspect" in future statements concerning the president.