U.S. Supreme Court justice Ruth Bader Ginsburg

Nearly 60 Republican members of Congress are demanding that U.S. Supreme Court Justice Ruth Bader Ginsburg recuse herself from the upcoming travel ban case because of the negative public comments she made about Donald Trump before he was elected president.

As an associate justice of the Supreme Court, you are required to recuse yourself in cases in which your 'impartiality might reasonably be questioned' and where you have 'a personal bias or prejudice concerning a party,' the 58 signers asserted in a letter sent to Ginsburg on Monday, citing excerpts from the federal recusal statute, 28 U.S.C. 455.

The letter added, There is no doubt that your impartiality can be reasonably questioned; indeed, it would be unreasonable not to question your impartiality. Failure to recuse yourself from any such case would violate the law and undermine the credibility of the Supreme Court of the United States. Ginsburg has not yet commented on or responded to the letter.

The call for recusal was triggered by the high court's announcement on Monday that it would hear arguments in October in Trump v. International Refugee Assistance Project, the dispute over Trump's executive order temporarily barring entry to the United States for certain foreign nationals.

The House letter references several statements made by Ginsburg in a series of press interviews last July, including one with The New York Times: I can't imagine what the country would be with Donald Trump as president. She also called Trump a faker in a CNN interview, and told the Associated Press she did not want to think about the possibility of Trump becoming president, but if it should be, then everything is up for grabs.

After a storm of criticism from across the political spectrum Ginsburg said in a statement that her comments were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office.

When asked about the House letter Tuesday, judicial ethics experts while agreeing that Ginsburg's comments were a mistake expressed doubt that Ginsburg will or must recuse.

The letter from the House members is politically opportunistic, said Hofstra University Maurice A. Deane School of Law professor James Sample. Still, Justice Ginsburg has only herself to blame for the optics.

One problem with the recusal request is that it was made by nonparties to the case. Though no rule prevents nonparties from urging recusal, it may not go over well with the justices, though Ginsburg alone decides whether or not to recuse. The court is understandably loath to permit the disqualification process to be hijacked as a tool for interest groups to target disfavored judges, said Charles Geyh, professor at Indiana University Maurer School of Law Bloomington.