Rubin: Ginsburg hasn’t lost her mind — or her way

Neal Rubin
The Detroit News

Judge Susan Moiseev of Southfield just saw her old pal Justice Ruth Bader Ginsburg, and she can assure you that despite what Donald Trump suggested, Ginsburg remains sharp as a jab from an elbow.

Technically, it should be noted, Moiseev saw her from a distance at the International Association of Women Judges conference. And they’re minor acquaintances, not old pals.

But having first heard her speak decades ago when Ginsburg was but a humble law school professor, Moiseev reports that “she’s still a smart lady,” and “she hasn’t lost her mind.”

The question, if there is one, arises because Ginsburg intemperately criticized Trump in a CNN interview last week as “a faker” who “says whatever comes into his head at the moment.”

Trump reacted with a tweet that concluded, “Her mind is shot — resign!”

It wasn’t quite a presidential response. Realistically, it wasn’t even a middle-school-student-council response, and it did not disprove the last part of her point.

Ginsburg apologized anyway — not to Trump, particularly, but because “Judges should avoid commenting on a candidate for public office.”

They should indeed. By expectation, they should remain in all things apolitical.

Chief Justice John Roberts is a sterling example. In Supreme Court opinions, he almost always takes a conservative stance. If he has any other strong feelings — the presidential election? The Washington Redskins’ quarterback? Ginger vs. Mary Ann? — you’d never know it.

But historically and currently, plenty of justices haven’t lived up to his standard. Or to put it another way:

Unless you teed off on right-leaning Samuel Alito and Sandra Day O’Connor, you need to lay off Ginsburg. But if you’re a political left-sider who barked about the first two, you should be howling now.

History loves company

Alito spoke at a fundraiser for the conservative magazine American Spectator in 2008, a neutrality-stretching act in itself, and made fun of Vice President-elect Joe Biden.

O’Connor was at a party on Election Night in 2000, and in the relatively early hours when Al Gore appeared to have won Florida and the presidency, she said, “This is terrible.”

Her husband told guests that she wanted to retire but wouldn’t if it meant a Democrat would appoint her replacement. Ultimately, she became one of the five votes that sent George W. Bush to the White House — though she held on to her job until 2006.

“If what (Ginsburg) did is a disgrace to the court,” wrote historian Linda Hirshman in Politico, “she’s in illustrious company. Supreme Court justices have been messing in politics, including campaign politics, since the ink was still wet on the Constitution.”

Hirshman, author of a book about Ginsburg and O’Connor, went all the way back to 1800 to cite electioneering by the largely forgotten Federalist justice Bushrod Washington.

How someone named Bushrod Washington could be forgotten is a mystery, but so is most of what goes on in Washington, D.C.

As for Ginsburg, 83, Moiseev says she is decidedly frail. Always tiny, she’s now somewhat bent as well.

Opinionated friends

At two convention events in Washington, however, she was charming and witty — words Moiseev also uses for the late arch-conservative justice Antonin Scalia, who once spoke at a National Association of Women Judges event.

“A lot of them have no personality,” she says. In her view, the ones who do can be forgiven for sometimes letting it show.

Moiseev, 66, retired in late 2012 after 261/2 years on the bench in 46th District Court. Now she pinch-hits as needed, mostly in Detroit and Ann Arbor.

“When you’re a judge and you have strong opinions,” she says, “it’s hard to keep them in.”

That’s why Ginsburg offered impolitic answers to direct questions, she surmises, and why Ginsburg’s good friend Scalia could be so acerbic.

“It’s not because she’s lost her mind,” Moiseev says — but rather, because she has one.