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

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.