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. Paul, the same way cats bark. See comment @ 6:37 by the Barking dog. Maybe dogs think every creature barks?

  2. Hey Olly, I just re read my comment you are taking issue with@3:58, I said “if one listens to” I didn’t say “Olly said” as Jill did regarding things she thinks I said.

  3. Is Obama left or right? What is left and right? We might adapt a line from John Kenneth Galbraith to answer that question in the context of today; On the Right, man exploits man whereas on the Left it’s the other way round.

    So Obama is, hmmm, oh well, never mind.

  4. Annie,
    My words are in the thread; THAT is what I said. So when YOU put words in someone’s mouth it’s what you would call, paraphrasing? LOL

    In my opinion, he is the most recent in a long line of progressive era Presidents; both Democrats and Republicans. The constitution, to all of them represents an obstruction to work around as opposed to work within. One President will work left and another will work right, so what. It really doesn’t matter what party they hail from; what’s important is the growth of the bureaucratic state. You don’t get to extol the virtues of one while condemning the other; they are two different sides of the same progressive coin.

  5. itchBay, itchBay, bo itch banana fana fo fitch
    fee fi fo mitch
    Iitch!

    Sounds like a bunch a cats barking on the blog here today.

  6. “Sandi Hemming
    Also, Alito “mouthed” a comment because the President was lying to their faces. And Wilson’s ”shout” was a warning the President was lying; we should have taken seriously.”

    Seriously?
    _______________________________________________________________

    The American Founders proposed “public education” primarily to produce educated, rational and coherent citizens who would vote wisely and perpetuate a great nation.

    Do you think the 15th and 19th facilitated that design? If America doesn’t defeat ISIS, those may be repealed.

    Yours sounds like a well-cast vote.

    ______________________

    Charlie Rose – Tom Brokaw

    ROSE: I don’t know what Barack Obama’s worldview is.

    BROKAW: No, I don’t, either.

    ROSE: I don’t know how he really sees where China is.

    BROKAW: We don’t know a lot about Barack Obama and the universe of his thinking about foreign policy.

    ROSE: I don’t really know. And do we know anything about the people who are advising him?

    BROKAW: Yeah, it’s an interesting question.

    ROSE: He is principally known through his autobiography and through very aspirational (sic) speeches.

    BROKAW: Two of them! I don’t know what books he’s read.

    ROSE: What do we know about the heroes of Barack Obama?

    BROKAW: There’s a lot about him we don’t know.
    _______________________________________________________________

    What more did you need to know about an ineligible candidate and a disaffected half-black man who admitted to a high school career conducted in a marijuana haze, the son of a foreign citizen who was the poster boy for affirmative action coming from a broken home of a perverse, compelled interracial marriage, after spending years as a foreign citizen in Indonesia, attending college as a necessary quota and dancing around a lecture hall indoctrinating young minds who didn’t know any better and finally, never having had a job or meeting a payroll, obtaining a position as a “community organizer” while socializing with Bill Ayers and Rev. Wright, et al., having had a nebulous, mystical, possibly low self-esteem mother, a philandering father-in-absentia and a statue in Indonesia that had been torn down?
    _______________________________________________________________

    (Insert here – if you can’t say something nice, don’t say anything at all)
    _______________________________________________________________

    The inmates have taken over the asylum.

  7. Ruth, I found a great retirement community. Come to think of it, I’m calling it quits too. See Ya!

  8. WOW, Jill. Again you misquoted me. Take a look at your second paragraph in your 5:31 comment. Now tell me again how you didn’t put words in my mouth. You even started putting a quotation mark around it. Who the heck even used the term “terrorists”? You need to take a breath, slow down, calm down, don’t misquote, don’t mischaracterize and then I might even agree with most of what you are saying. All you are doing by ‘ranting’ is antagonizing those who might actually agree with you, that’s not smart and I know you are a smart woman.

  9. Annie, Here’s the question I asked you which you did not really answer. “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?” At 4:29 you wrote: “Jill, no I don’t think he should kill anyone anywhere, BUT if one IS in a war, if American citizens join forces with the ‘enemy’, whoever the heck they are, they become an enemy. As for this ‘action’, it should cease immediately and not be resumed IF and UNTIL the Congress declares war. No declaration, no war.”

    I then responded directly to what you said: “You say, well, he has to kill the terrorists. Does he? Up until 9/11 terrorism was considered a criminal offense and people accused of it were tried in civilian court. They were often convicted and some are serving life sentences.

    Secondly, is he only killing the terrorists? So far he has actually killed 1000s of civilians to include babies and children. He has deliberately killed a 16 year old boy. He has also deliberately killed a man who a grand jury refused to indict for the crime of terrorism (see Scahill).

    You say that you are a left wing person yet you are also saying that it’s O.K. with you if Obama picks out people to kill and kills them,– no trial, no nothing. How did you arrive at that being O.K. with you? How do you see this as part of our Constitution? How do you see this as a left wing position? ”

    I am responding directly to your claim that Obama may choose the people who he wants to say went to war against us and kill them. I gave you two examples of American citizens, one a 16 year old boy and the other a citizen whom a grand jury would not indict for terrorism. Yet Obama killed them both.

    It seems very disingenuous to say I’m putting words in your mouth. I just quoted your own words and responded to your arguments. As for needing to convince others, I can’t convince a partisan of anything so I don’t bother with it. They people I can convince are people who are open to the facts wherever those facts lead.

    As to whether we can determine what is true of false, I feel that is possible. Reality is knowable. Obama has made statements which, if you wanted to listen to them, you would know how he thinks and feels. You can also see what his actions are. These are known knowns.

  10. http://www.bostonglobe.com/arts/movies/2014/03/31/anita-hill-steps-back-into-spotlight-subject-new-documentary-film/8Y6uG0jCyDzQ5UycMq6V5J/story.html “Subtitled “Speaking Truth to Power,” “Anita” represents a coming out of sorts for Hill, who has been largely out of the public eye since becoming a Brandeis University professor 16 years ago. But it is also, by design, a vehicle for Hill to share her views on racial and gender inequality with members of a younger generation for whom the Senate hearings are ancient history.” Hill was not ruined and does not seem to want to “erase those days”.

  11. Olly, you think Obama is further left than Pol Pot or Stalin, etc., isn’t that what you said? I think my paraphrasing wasn’t too far off the mark. So if Obama isnt a commie in your eyes, what is he? Politically?

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