Ginsburg: Obama Cannot Guarantee A Replacement For “Someone Like Me”

225px-ruth_bader_ginsburg_scotus_photo_portraitI have been previously critical of Supreme Court Justice Ruth Bader Ginsburg’s public speeches and interviews (as well as those of some of her colleague’s like Justice Scalia). Ginsburg has again crossed the line of judicial decorum in my view with yet another interview. In this case, she openly discusses the danger of Republican influence on any replacement in the context of her decision to stay on the Court. The interview with Elle magazine is another public appearance that continues the corrosive influence of politics on the Court and the maintenance of political contingencies by some of the justices.

scaliaI have long been a critic of the increasing public personas maintained by justices like Scalia and Ginsburg. I have previously written about the advent of the celebrity justice. Scalia clearly relishes the public attention, even though his public controversies likely cost him the Chief Justice position on the Court. This trend is a serious erosion of past restraint as justices like Ginsburg make controversial public statements before rapturous crowds.

I greatly valued the model of John Paul Stevens who avoided public controversies and speeches — speaking through his opinions.

Ginsburg has been criticized for hanging on to her seat despite her advanced years. She is now 81.

She swatted back critics in the interview by saying that she is not resigning because of the influence of the Republicans on the likely nominee:

“Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Republicans] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam…. I think I’ll recognize when the time comes that I can’t any longer. But now I can.”

While liberals thrill at the increasingly political nature of Ginsburg’s comments, I do not. There has been a long-standing tradition on the Court to avoid politics and political discussions. Ginsburg’s public comments on calculating Republican moves in Congress and engineering a replacement to her liking is a further deterioration of the decorum of the Court. Many liberals would be outraged by Scalia talking about how he needs to stop Obama from making another appointment or seeking to curtail the role of Democrats in shaping the court. This is not the province of Supreme Court justices. No one is suggesting that these justices are apolitical personally. However, the vast majority of justices have refrained from political discussions to maintain of the authority and standing of the Court. To further discuss political changes in the filibuster role in Congress (as a condition for possible retirement) puts her seat at the center of the political debate and legislative process.

Ginsburg’s position also makes little sense since, under this logic, there is unlikely to be a time to vacate the seat while the filibuster rule remains. The Congress has long been divided as has the country. If predictions prove valid, the Democrats will lose seats in both houses and could lose the Senate entirely. Ginsburg has guaranteed the worst possible timing for Democrats if she truly has been calculating the political odds. In the end, it sounds more like a rationalization than a calculation to hold on to her seat.

220px-Official_roberts_CJ220px-010_alitoIn the past, it has been the role of the Chief Justice to enforce a sense of restraint and decorum for members of the Court. Chief Justice Roberts has failed to do so in the past. Indeed, I was highly critical of Justice Alito’s display at a past State of the Union (and past appearances at public events) in showing opposition to President Obama’s statements. I was even more shocked when Roberts appeared, if anything, to support Alito rather than rebuke him for such a public demonstration.

In the end, we are responsible for the trend of justices courting constituencies and popularity. Bar groups scramble for these justices to speak and the public is overjoyed when they throw red meat to one side of the political spectrum or the other. While citizens constantly denounce the other side as political “ideologues,” they lionize “their” justices for consistently taking the opposing positions and giving public commentary to their liking. Few of these justices would have been selected by a merits based vote of the legal academy. Indeed, many were selected precisely because they were easy nominees with little written or said in the past on major issues. They are incredibly fortunate to be on the Court. The price for that ticket is a modest one. They should speak through their opinions and leave political considerations to those in the two political branches. By portraying herself as a Democratic member (and conversely suggesting that the GOP is the enemy), Ginsburg reinforces the view of justices as carrying out political agendas.

If Ginsburg thinks that she is still fully functional as a justice as an octogenarian, so be it. However, the attempt to justify her decision on political grounds is neither judicious nor credible.

105 thoughts on “Ginsburg: Obama Cannot Guarantee A Replacement For “Someone Like Me””

  1. What I’ve noticed about people in power is that they become arrogant, egotistical, and think that they are irreplaceable. At that point they are worthless to the position they were given.

  2. Why do so many of the nine justices speak with a New York accent? Someone said that six of them are from New Jersey and New York. Is that true? Where do they all come from? Where did they each go to high school?

  3. The justices are human beings. They don’t live in a vacuum. Their appointments are much of the time political wars.

    The irony here is the transparency we all want from government is argued as beneath judicial demeanor. Let them speak their minds. We’ll learn much more about their mindsets than we can with the political gamesmanship we see between the lines in many of their legal opinions..

  4. I like that Justice Ginsberg is on the court and that she intends to stay as long as she can do the work.

    I guess free speech if for everyone but Justice Ginsberg. 🙁

  5. “While liberals thrill at the increasingly political nature of Ginsburg’s comments, I do not. There has been a long-standing tradition on the Court to avoid politics and political discussions.”

    Damn that stupid tradition because it is contrary to the fundamental purpose and value of free speech. I rarely agree with Scalia, but I proudly applaud his outspokeness.

    Indeed, no free society should have non-public judicial proceedings, including deliberations.

  6. Ginsburg’s Liberal bias brings this story to mind – the end result of Obama’s Dream Act is that 70% of the families in the most recent surge failed to show up, as predicted, to their court appointments:

    I remember when politicians here in CA told us the Dream Act would not entice more illegal immigration. They said that those who opposed it, on the grounds that it would cause illegal immigration to sky rocket, were merely racists. They’re pretty quiet now . . .

  7. Annie there is some very strong wisdom in that…. But this medical grade is a different species and they probably don’t know the full ramifications yet… Like GA corn…

  8. AY, I think maybe those who get addicted to medical marijauna have some serious underlying psych issues to begin with.

  9. Annie,

    That so physically impossible to be addicted to plain weed…. Now psychological it can be habit forming…. Smoking and herion are the two hardest addictions to cease…. Or at least that’s what I’ve read….

  10. We learned when we got our adopted son home from Colombia that he had the parasite,giardia We are blessed in this country to have safe drinking water, parasite free. Giardia is common in 3rd world countries. Because this country does not have a need to have medicine for giardia, the drug companies spend little money making the syrup antibiotic palatable for a child. Our first 10 days were spent battling to get the most horrible tasting syrup[I tasted it] down his throat. But, the doctor assured us, you ALWAYS must rid your body of a parasite, and unfortunately, the horrible tasting syrup was the only option. So, it was “Welcome to the USA, my son, now open up for some green gunk! The doctor had to report the parasite to the Madison Health Dept. and show it was killed by the antibiotic.

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