She should resign. She doesn’t have to. There’s no legal or moral obligation for her to do so. But I don’t believe it is appropriate or wise to have someone maintain final interpretive authority over the Constitution when she doesn’t really believe the Constitution is all that great or suited to modern needs or even the best in the world.
“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa,” says Ginsburg, whom President Clinton nominated to the court in 1993. “That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.”
No one should have the authority to formulate judicially binding interpretations for a document he or she would prefer to radically reshape. Human nature being what it is, that’s just asking for poor judicial reasoning and legislation from the bench — which is exactly what we’ve seen from Justice Ginsberg, from Stenberg to Ledbetter. The South Africa Constitution has a vastly more powerful judiciary, a much larger constitutionally-mandated bureaucracy, and one of those Canadian-style declarations of human rights with explicit carve-outs to suppress politically incorrect speech. (She goes on to praise Canada and Europe over America once again.)
Again, she doesn’t need to resign. There are no grounds for impeachment here. This is not “bad behaviour” for constitutional purposes. But this is going to get lobbed at every decision she ever writes from now on, casting (reasonable) doubt on her legitimacy. It would be good for the Court, good for the country, and good for her if she did.
And then there’s just a bunch of sloppy thinking. Any Justice should know better than this:
We are still forming the more perfect union… The genius of the Constitution, I think, is that it has this notion of who composes ‘We the people’. It has expanded and expanded over the years so now it includes people who were left out in the beginning. Native Americans were left out, certainly people held in human bondage, women, and people that were new comers to our shores. “
The wisdom of the framers was they wrote in general terms. So they wrote, “no person shall be denied due process of law”. What was due process of law in those times? It was some pretty awful punishments, and, today, certainly we would not consider proper. The provision specifically dealing with punishment is there shall be no cruel or unusual punishment. Well, way back in the 18th century, twenty lashes was not considered cruel or unusual. Today it would be unthinkable. So these grand general ideas that become more effective over the course of two sometimes turbulent centuries.
I won’t weary you by an enumeration of errors; they are no doubt obvious. She seems like a very nice, soft-spoken elderly lady, but she is not a judge of the caliber the Constitution requires if we are to survive the coming years. She should step down.
Of course, it would be best for her to wait until President Ron Paul is in the White House, so he can nominate her successor.