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Is RBG 'Bound by Law' to Recuse Herself on Travel Ban Case?

By William Vogeler, Esq. | Last updated on

While the U.S. Supreme Court eases into the summer recess, Justice Ruth Bader Ginsburg will be working overtime on one issue: whether she should recuse herself from the Trump travel ban case.

In a letter to "Madam Justice Ginsburg," three score Republicans have bellowed, "Yes!" Other politicians and pundits say, "No!"

The debate will likely continue through the season, but everyone seems to agree on one point: Ginsburg, by law, will make the decision herself.

"He's a Faker!" "Her Mind Is Shot!"

The controversy started during Donald Trump's campaign for the White House, when Ginsburg basically said that the country would be in big trouble if he were elected. She joked that she would leave the country if he won.

"He is a faker," she added. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego ..."

Naturally, Trump kept it interesting with his tweet retorts: "Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot -- resign!"

Now -- a year later and eight months after the election -- Trump supporters are using the feud to push Ginsburg off the most controversial case in the Trump presidency.

28 U.S.C. Section 455

In their letter, the Republicans -- 57 men and one woman -- told Justice Ginsburg that she should recuse herself under 28 U.S.C. Section 455(a) and 455(b(1). The law says a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

While it seems clear Ginsburg won't invite Trump to her retirement party, she hasn't said anything about his travel ban -- yet. Hofstra University law professor James Sample told the National Law Journal that Ginsburg's comments did not specifically address the travel ban.

"Were a case to come before the court that more directly involved President Trump as an individual party, the arguments for Justice Ginsburg's recusal would be stronger than they are here," he said.

In any case, it will lead up to an exciting session when the Court resumes hearings in October. If Ginsburg chooses not to hear the travel ban case, she could always promote her workout book, which comes out the same week.

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