Why Justice Ginsburg Can Officiate All The Legal Same-Sex Weddings She Wants

Ruth Bader GinsburgBy ZACK FORDThinkProgress

Alabama Chief Justice Roy Moore, a rabid opponent of marriage equality, told the Family Research Council’s Tony Perkins that he believes Supreme Court Justice Ruth Bader Ginsburg should be impeached for officiating the marriages of same-sex couples.

“We have justices on the Supreme Court right now who have actually performed same-sex marriages: Ginsburg and Kagan,” Moore observed, noting that when doing so just two weeks ago, Ginsburg seemed to slyly emphasize the word “Constitution” when pronouncing the couple married by the powers vested in her by the founding document. “Now she’s commenting on a case which is before her, and under judicial ethics of federal judges, she can’t do that. Congress should do something about this.”

“I know that at least one motion for recusal’s been filed against these justices by the Foundation for Moral Law in Montgomery, Alabama,” Moore added, referring to the conservative organization that he founded and that his wife runs. “[Ginsburg] is doing it in the face of plain evidence that she’s violating the ethical rules for federal judges… If Congress is going to let these justices disobey the Constitution they’re sworn to uphold, then Congress has a check and a balance. It’s called impeachment.”

Listen to it (via RightWingWatch):

There is, in fact, a code of conduct for federal judges. Most of the code speaks to impartiality, the notion that judges should not be biased because of familial connections, personal grudges, financial interests, or other affiliations with the parties or the issues at hand that would compromise their ability to be impartial. The section upon which Moore builds his argument reads as follows:

A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.

The same-sex weddings Ginsburg has officiated were all conducted in Washington, DC, where it was legal for the couples to marry. Ginsburg was certainly correct that the Constitution vests her with judicial power, and DC law allows any “judge or retired judge of any court of record” to officiate a marriage ceremony. Ginsburg was simply performing one of her official duties, administering the law as befits her constitutional title. Furthermore, she made no public comment on whether the couples were entitled to those marriages under the Equal Protection Clause of the Constitution, the actual question at stake in the same-sex marriage cases.

Only one Supreme Court justice has ever been impeached in the history of the United States. In 1804, the House of Representatives served Justice Samuel Chase with articles of impeachment, alleging that political bias had caused Chase to treat defendants and their lawyers in an unfair manner. The Senate then acquitted Chase, seeming to doubt that the quality of his judging was grounds for removal. Five federal judges have been impeached since 1986, for reasons such as income tax evasion, perjury, conspiring to solicit a bribe, accepting bribes, sexual assault, and obstructing and impeding an official proceeding. No federal judge has ever been impeached for making a public comment on an impending case.

Moore, who has said he will ignore the Supreme Court if it rules for marriage equality, and who was previously removed from office for refusing to comply with a federal court order, essentially wants to create an entirely new precedent for impeachment based on his own obvious biases. If the Court rules for marriage equality, which it seems poised to do, it will be because at least five justices believe the Constitution protects same-sex couples’ right to be treated equally in society. Moore would thus have Ginsburg, and presumably Kagan, impeached simply for performing their sworn duty.

Reprinted with permission from Think Progress, a branch of The Center for American Progress 

 

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