I 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.
I 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.
In 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.
“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.”
She won’t, she hasn’t…
Oh my, my faith in being vetted is coming true…. Someone’s on the short list….
I guess some people think they can live forever. She sounds like some politicians I can think of who believe they HAVE to be reelected because we could not survive without them. Pfft!
She can have her decisions written for her as long as she is alive. In fact, if she doesn’t get too smelly, they can probably prop her in a chair for awhile, until it become obvious she is dead.
Paul, The sketch artists part was tongue in cheek. But, in this era of ubiquitous cameras, I do find it endearing to be watching national news and seeing an artists rendering of a Federal Court proceeding. I’m just jealous I was never sketched, that I know of anyway.
Some faith is misplaced.
DavidH, If judges ham it up for reporters or when they’re interviewed before cameras, how in the hell do you think they won’t do so in the courtroom? I am an open govt. person, but you can read, or hear, Federal Court proceedings on all levels. I have testified in courts w/ and w/o cameras. The Federal Courts are much more professional, in large part, because of it being sans cameras. Oh, I should say, I am married to a sketch artist. Just kidding. But, cameras would put sketch artists out of business. I’m sure JT’s been sketched for news shows several times. I hope they get his good side.
Nick – the horseless carriage put buggy whip makers out of business. So? The audio recordings are available. What difference would it make. However, you would be able to see the flop sweat on some of the attorneys. That could be fun or terrifying, depending whose side you were on.
If a political party supports issues that across-the-board are blatantly unconstitutional, is it “political” to point that out?
The U.S. Constitution/Bill of Rights primary purpose is to “restrain” government and protect citizens’ rights – so it is a progressive document that expands rights of women, African-Americans and the majority.
The U.S. Supreme Court recently expanded gun rights and the GOP still supports policies that violate the U.S. Constitution.
Could Ginsburg even be considered “conservative” on the U.S. Constitution’s due process of law system? By and large except for people like Rand Paul, the GOP is certainly liberal on the U.S. Constitution from marriage equality to war powers.
@Nick Spinelli, this has little or nothing to do with cameras in the courtroom, and there is no good argument against them in SCOTUS. I tend to side with those who favor justices being honest about what everyone assumes they’re thinking anyway. Ginsburg in particular has been lobbied to step down for years; it’s not like her response on the topic comes out of the blue.
Ross, Too much reading of opinions.
Curmudgeon, You’re absolutely correct about misspelling her name. I have Alan Ginsberg on my brain. I will make sure I spell her name correctly from now on. Another problem w/ the 3rd World Word Press, no ability to edit or delete. Maybe if editing and deletions were allowed JT would not have to delete so often. Never mind, I’m wrong.
Ginsburg should stay. What about Jonathan Turley’s proposal of a 19 member court?
To what extent does this analysis apply to appellate court judges with high profiles, such as Posner, Easterbrook, Wood, and Kozinski (not to mention the Federal Circuit judges who engaged directly in the patent reform debate)? Should all federal jurists avoid the public eye, or is the S.Ct. inherently different?
P.S. How can half of the commenters here read a whole post full of “Ginsburgs” and then go on to write a comment spelling it “Ginsberg”?
Yes, it will be hard to find someone who can fly that broom as good as she.
She makes the classic blunder of thinking she is not expendable. She is a very bright woman. I disagree with many of her writings but she is what she is. If she thinks she is so great she can’t be replaced…well we all know that everyone can be replaced. it will be different, it might be better it might be worse. But the world will go on spinning with or without a Ruth Bader Ginsburg.
And yes, I know this could only (never)!happen by Ammendment
The justices are appointed for life specifically so they may rise above the petty squabbles of political parties and elections; their only master and fealty being to the Constitution which they are to faithfully serve.
We can see here just how corrupted by human nature our justices are however, they are just as much toadies to political parties and party agenda as any President would be. If this is in fact the case then perhaps they might just as well complete the corruption, drop the farce, and stand for election as well.
Or
Perhaps it’s high time we change the nomination process for our appeals courts and above, and have them nominated by either their peers or by an electoral college drawn from the boards of state bar associations. Then submitted to the Senate for ratification and with the President having only Veto power, but with the Senate maintaining a Veto override.
Then, in their Oaths, have them specifically renounce allegiance and fealty to all political parties and influence and dedicate themselves to serve only the Constitution.
Yet, even this, though reminding them of that which they serve, I do not think could change the fundamental flaws in human nature which even our illustrious founders could not design out of the system.
I think it was Chief Justice Roberts who said he thought that neither Ginsberg or Scalia would be confirmed by this Congress.
I find it fascinating that some people, and that includes the Senator from my state McCain, think no one can replace them. What special snowflakes they are.
I thought Ginsberg’s statements were degrading to the respect for the rule of law in this country too. The President’s overtly political attack on the Court during the SOTU address even more so, so I cut Alito a little more slack for his “in the moment” response.
Elites find it hard to see robed ones as human like the rest of us.
The wizards behind the curtains often turn into lizzards.
Openness is better.
Huge ego.
Injudicious comments like Ms. Ginsberg’s and and that famous “wise Latina” erode public confidence.
Great piece. It is even more important now to keep cameras out of the SCOTUS. Ironically, Ginsberg and Scalia are friends. I do like that.