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Ruth Bader Ginsburg and the fetishization of “objectivity”

U.S. Supreme Court Women Justices Are Honored On Capitol Hill For Women's History Month Photo by Allison Shelley/Getty Images

Ruth Bader Ginsburg has apologized for telling the New York Times and the Associated Press that she would really, really, really hate to see Donald J. Trump elected president. "On reflection, my recent remarks in response to press inquiries were ill-advised, and I regret making them," she said in a statement.

And good for her. Those remarks were ill-advised, and she should regret making them. But there’s something in the uproar — and particularly in the calls for her to recuse herself from any cases concerning Trump — that lays bare how bizarre our fetishization with "objectivity" can get.

Here is what changed after Ginsburg expressed her fear of a Trump presidency publicly: nothing.

Ginsburg was never, ever a neutral observer of this election. If she had decided against granting any major interviews this year, she would have been exactly as biased. Hell, it’s possible that the backlash to her comments has made her more likely to rule in Trump’s favor, now that her reputation is at stake.

This is the problem with confusing "objectivity" with objectivity. It might be nice if we could find judges (or journalists!) devoid of opinions about major issues in American life, but so far I don’t think we’ve located any. So what we ask, instead, is for "objectivity": for those opinions to be concealed and left to exert their influence quietly, opaquely, sneakily. The result is the same — or worse — but the process is hidden.

I am not saying that norms encouraging public reticence are worthless. There are valid PR considerations here: Ginsburg has made the Supreme Court look bad by badmouthing Trump, and for that she deserves the censure she’s getting. But that’s a far cry from a reason for recusal.

Recusal is an appropriate remedy when someone has a conflict of interest that would make it impossible to judge a case fairly. But insofar as we think Ginsburg didn’t need to recuse herself from Trump-related cases a month ago, nothing has changed today. And that's not only true in terms of Ginsburg herself — it's also true for the public, as no one was under any illusions about whether Ginsburg is a liberal who would prefer Hillary Clinton to Donald Trump.

Ginsburg's rooting interest in the outcome of the election led to her remarks; it wasn’t created by her remarks. The fact that anyone pretends otherwise just shows the degree to which we confuse "objectivity" that serves PR purposes with actual objectivity, the kind that affects decision-making.

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