Justice Ruth Bader Ginsburg’s recent outburst against Donald Trump has been roundly criticized by people of all political stripes. Insofar as her comments suggested a clear bias about cases that could come before the Supreme Court, they were clearly a mistake and a departure from the norms of Court behavior. After predictable media attempts to defend her by saying “everyone does it,” Justice Ginsburg apologized and walked back her remarks.
This is not, however, a one-off incident. It is part and parcel of a clear and consistent pattern of the left’s increasing politicization of everything. And the chief instigator of this behavior has been President Obama. In the modern era, presidents and ex-presidents once showed a degree of political restraint. President Obama has blasted through these restraints and spoken freely as a partisan rather than as a president.
An early example is the president’s criticism of the Citizens United case in his 2010 State of the Union address. It is one thing for a president to advance a view about the role of money in politics; it is quite another to launch a broadside about a specific Court decision in front of Supreme Court justices captive in the front row of a nationally televised speech, complete with cheering partisans standing all around. This, of course, resulted in a classic media deflection, namely, criticism of Justice Samuel Alito’s silent (and accurate by the way) response. This was certainly no sign of presidential respect for the Court’s independence.
President Obama’s behavior here was of a piece with his comments about the unfolding IRS scandal in 2014. Here was a genuine abuse of government power, replete with lying, stonewalling, and the wanton destruction of public documents. It would be one thing if the president were to opine about a congressional investigation into the IRS scandal. It is quite another to do so when the president’s Justice Department had launched its own investigation of the IRS.
It is perhaps fair to say that the administration’s investigation, headed by Justice Department attorney (and Obama contributor) Barbara Bosserman, was a sham from the beginning. But is it acceptable for the president to pronounce there was not “even a smidgen” of IRS wrongdoing while the Justice Department’s so-called investigation was underway?
Nor is this behavior different in kind from the numerous occasions President Obama has chosen to opine about the legal affairs of individual Americans before the facts have been established. This was true in regard to his friend, Harvard professor Henry Louis Gates, and was repeated in the cases of Trayvon Martin, Michael Brown in Ferguson, Mo., and the Black Lives Matter demonstrators. When the facts eventually became known in these cases, they were quite at odds with the president’s comments.
This is in interesting contrast to the cases of Islamic terrorism (Fort Hood, San Bernardino, and Orlando) where the facts and motivations were quite clear from the beginning; indeed, the perpetrators announced their motives clearly and without equivocation. Nevertheless, in these instances the president has withheld judgment, saying the motives are complex, unclear, and in need of thorough investigation—though thorough investigations of these events never seem to lead to any new presidential conclusions down the road.
More recently, Hillary Clinton’s presidential campaign has provided numerous occasions for the president to interfere with his own administration’s legal proceedings. We have witnessed President Obama stating categorically that there was no national security threat that resulted from Hillary Clinton’s private email server—at the same time his own FBI was investigating that very question, among others.
Not content with this, the president announced he would make a joint presidential campaign appearance with Hillary Clinton at the very moment the FBI was completing its investigation and referring the matter to President Obama’s attorney general. The stunning novelty of this was a bit overshadowed when the president’s attorney general held a highly unusual, private one-on-one meeting with the husband of the FBI’s investigatory target, a man who was himself in the middle of the activity under investigation. All of this is simply unprecedented.
Speaking of unprecedented, President Obama’s frequent rhetorical attacks against Donald Trump are in a class by themselves, different from any recent president’s behavior during the campaign to choose a successor. Sitting presidents can, and have, made clear their preference of a successor. There is nothing new or untoward about this, but it has invariably been done in a restrained way, often accentuating the positive qualities of the preferred successor. Never has there been a case of a president repeatedly bad-mouthing the opponent of his preferred successor.
For a long time it has been clear that the four Democratic-appointed Supreme Court justices generally vote in lockstep on political issues of importance to the president. When there are public calls for bipartisanship on the Court, this is invariably code that one or more Republican-appointed judges should vote with their Democratic-appointed colleagues. And they often do, as in the case of Obamacare and college affirmative action. It never means the opposite.
Though Democratic-appointed judges have displayed a clear ideological discipline, until Justice Ginsburg’s comments there was at least a polite fiction about the Court’s independence from partisan politics. Justice Ginsburg has exposed the game; she has followed the lead of President Obama in destroying the partisan restraint that used to mark our most important institutions.
Nor should it come as a surprise in this environment that there is almost never a single Democratic member of Congress who sides with Republicans in any investigation of Democratic behavior. Every such investigation is ritually denounced as a partisan witch hunt and fought tooth and nail. Republican investigations of Democratic wrongdoing undoubtedly offer partisan benefit. But is the danger of partisan advantage really a sufficient reason to fail to look honestly at the facts?
With regard to IRS targeting of political opponents, for example—the temerity of which would make Richard Nixon blush—was there really a sufficient reason to excuse lying, stonewalling, and the destruction of computers and literally thousands of emails? Is there no single Democrat who can rise above his or her own partisanship and acknowledge that while there may be partisan gain for Republicans, an investigation might also be good for the defense of liberty and government restraint? Would they want the IRS to target them?
In all this, one supposes that the past will be prologue. Is there anyone who thinks that next year the former President Obama—especially if his successor is a Republican—will follow the lead of his predecessors and largely refrain from intervening in political issues? We hear a good deal of fear-mongering about how a President Trump might aim to centralize political power and politicize government decisions. If he does, he will have an excellent example upon which to draw.
Jeff Bergner has worked in the legislative and executive branches of the federal government. He is currently a visiting lecturer at the University of Virginia
