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.
annie and rafflaw, I think you can understand who Obama is by looking at his actions. Do you think that saying you can kill anyone, anywhere on your say so is O.K.? If so, why do you think that?
Rafflaw, I know that if Bush would have said that you would have been all over him for that. Just replace Bush with Obama using the same words. Why isn’t it clear that that statement and those actions are wrong? Do you think this behavior is that of a leftist? Maybe it is now that left wing has become so degraded in politics. I’d be interested to hear if you think this is left wing behavior and if so, how?
Oily, would you call that the behavior of a person who is dedicated to social justice? I don’t see that. If you do, help me understand why you think this is an act of a person dedicated to social justice.
SWM, yep. Seems that is it. While there are very real reasons to criticize abou half of Obama’s policies, it just seems like such ‘overkill’ to thoroughly demonize any President. Even Bush had his good points. Obama derangement syndrome puts Bush derangment syndrome to shame.
swarthmoremom,
Indeed.
Annie, raflaw, Absolute hatred of Obama is the common thread.
Annie,
Obama is a commie-socialist-war mongering neocon, don’t you know? While I disagree with his continuation and enlarging of spying on Americans, he is far from any of those labels. I consider him right wing on some issues and left wing on some social issues, but not a true progressive.
I love this confusion by those on the left and those on the right as to what Obama is on the political spectrum. If one listens to Jill, he’s a neocon, if one listens to Olly, he’s a commie. So which one is it? I guess it’s where one comes from as to what lens they look through? What’s amusing though, is that people who hold extreme left or right philosophies seem to always say they are “independents”! Labels have SO lost their meanings, lol. Left is right, up is down just depends on who is describing it.
annie – Obama is a neocon commie. btw, how do dogs meow?
Beldar here. Why do the Justices not speak out in public more often? You appoint them for life. They are supposed to have life tenure so that they will not be manipulated to conform to present day drifts of wind. This fine woman was on television with Alito and they were both interesting.
Jill,
The Police State is not unique to the far right. Dictators; both left and right will use the police state for their cause. Obama would qualify as far-Left regime because of his Social Justice motivation. More famous of the far-left radical regimes of course were under Mao, Lenin, Stalin, Pol Pot and Castro.
Ginsberg looks like death froze over and was plastered to her face.
The courts are just too corrupted to take seriously which I think means we are all screwed anyways.
Exactly how social is Ginsburg??? This is what she said back in 2009:
Here’s what Supreme Court Justice Ruth Bader Ginsburg said in Sunday’s New York Times Magazine: “Frankly I had thought that at the time (Roe v. Wade) was decided,” Ginsburg told her interviewer, Emily Bazelon, “there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”
The comment, which bizarrely elicited no follow-up from Bazelon or any further coverage from the New York Times — or any other major news outlet — was in the context of Medicaid funding for abortion. Ginsburg was surprised when the Supreme Court in 1980 barred taxpayer support for abortions for poor women. After all, if poverty partly described the population you had “too many of,” you would want to subsidize it in order to expedite the reduction of unwanted populations.
Left unclear is whether Ginsburg endorses the eugenic motivation she ascribed to the passage of Roe v. Wade or whether she was merely objectively describing it. One senses that if Antonin Scalia had offered such a comment, a Times interviewer would have sought more clarity, particularly on the racial characteristics of these supposedly unwanted populations.
http://jewishworldreview.com/cols/jonah071509.php3#.VCRuSZyAnb8
Squeeky Fromm
Girl Reporter
“If she would have retired a couple of years ago perhaps we could have had a viable replacement.”
Barkindog,
Do you mean there exists no other judge that has demonstrated commitment to the rule of law? Or are you bemoaning the lost opportunity to replace her with another “social” justice?
I don’t know how I feel on this issue. One part of it is just bizarre. I have no idea why Ginsberg believes Obama would appt. anyone like her, even if he had the full support of a Democratic Senate.
Obama holds legal positions far to the right of GWB. He just stated he can say what war means, he can declare it at will and execute it on his own say so. He has said he may kill anyone, anywhere on his own say so. These are doctrines of the radical right. It would be highly unlikely that someone that far to the right would appoint a left leaning justice. It could happen, but most likely, not. So I really can’t see that Republicans are the problem here. It seems to me that Obama’s own far right legal doctrines are the real issue.
As to Ginsberg and the other justices speaking out. Maybe it’s a good thing they do. Maybe we should all know what they really think and feel. It would be important in certain cases where statements have been so prejudicial that the justice should recuse her or himself from hearing a case. Of course, they don’t often do that, but they should.
Justices are people and they have opinions. Personally, I would rather know their real thoughts up front.
If she would have retired a couple of years ago perhaps we could have had a viable replacement. I like that she speaks out in public, The media tries to convey that she is too old. Not so. If the RepubliCons win the Presidency she will only be 86 or so when that term expires in four years. By then the Dems will be back and she can retire at 88 or so. Quit all your itchingBay about her on the blog. I did not agree with anything in the article and do not agree with many of the comments. We have Senior Judges who do well in their nineties. Judge Myron Bright is one example.
And another thing. This practice of appointing Harvard and Yale grads who never tried a jury trial in their life and who come over from the DC Court of Appeals has to stop. Find us a Hugo Black.
Your points are all valid in ordinary times. Which these are not. I suspect Ginsburg is in great fear for our democracy- which has largely become a charade. We all need to speak up while we still can.
“he could not successfully appoint anyone I would like to see in the court. ”
Kick her to the curb. That seat she occupies belongs to the country, it isn’t hers to decide who fills it after she retires.
Talk about entitled. She’s a judge, not a king planning succession.
Paul,
That is another red herring. The unions would have to honor the Amendment just like corporations and the Koch Brothers.
When the right wing justices stop their assault on the Bill of Rights, then I will support criticism of Ginsberg’s occasional non-judicial comments.
Paul,
The Citizens United amendment was not about public financing of elections. It was about corporations and the wealthy being able to buy politicians and Supreme Court Justices.
rafflaw – you have to support candidates. That is what Citizens United is all about. When the unions drop out of the elections game I am all for getting rid of Citizens United. BTW, the biggest contributor to the Democrats was lawyers. Color me surprised.
I don’t think the justices should be discussing these issues publicly whether liberal or conservative.
However, I do blame the liberal method of interpretation for the politicizing of the Court. When you embark on a method that takes into consideration the “evolving standards of decency that mark the progress of a maturing society” for example you then end up with who exactly determining what the new standards are ? The people’s representatives? Or a select few Ivy League trained elites?
The Court has in the decades past decided to take upon itself the deciding of questions that the Constitution left to the people and thus have become the political body that they are.
We as a people have allowed them to do so and we are increasingly sleeping in the bed that ultimately, we have made.
The cat is already out of the bag on the Supreme Court being politicized so Ginsburg’s comments are the norm. When you have Supreme Court Justices accepting gifts from political entities and even litigants, the idea that Ginsburg should not state the obvious is silly. If the Right refuses to get money out of our politics as displayed by their latest filibuster against the Citizens United Amendment, why should we be surprised that the Supreme Court is politicized?
rafflaw – if your candidate cannot raise his or her own money why should the rest of us support them. I will be damned if I will support public funding of elections. Every nutcase in the United States will be running then.