Strengthening Constitutional Self-Government

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Ginsburg on the next justice again

I’ve written about this before, but now we have Ruth Bader Ginsburg speaking out again.

For a different sort of outspokenness, go here. Hat tips: Southern Appeal and Bench Memos.

Discussions - 12 Comments


Is this statement by Ginsburg objectionable as well? That she doesn’t want to be the only woman on the court, but that selecting someone because she is a woman is a bad idea? "Yes, it would be nice to have another woman on the court, but not any woman." is a statment that, read fairly, could even come out of the mouth of someone who doesn’t like affirmative action all that much.

It can’t be the case that sitting Justices should never make comments on nominees. Scalia just said that he liked Roberts’s baseball analogy, thus implicitly expressing a preference for a nominee who makes such analogies. Innocuous? Sure. Then why isn’t Ginsburg’s comment similarly innocuous?

I just want to reiterate my objection to what seems to be your whole line of argument here: that the President should not only have the absolute discretion mandated in the Constitution to choose nominees, but that all other players, especially SC Justices, have a corresponding duty to refrain from commenting on the process in public.


The Constitution requires that the Senate give its advice and consent, which as it should be, and you and I can mouth off all we want. But Ginsburg’s comments, especially the repeated references to an unspecified list of acceptable nominees, invite speculation as to who is and who is not on her list.

You’re right that she’s not simply a fan of affirmative action, in the same way that opponents of the Clarence Thomas nomination didn’t want just any African-American on the Court. Thomas was unacceptable to them because his judicial orientation was unacceptable; there are women, otherwise qualified, who wouldn’t be acceptable to Ginsburg because of their judicial orientation. This strikes me as an inappropriate stance for a sitting justice to take--implying that someone doesn’t belong on the Court, isn’t worthy of being a colleague, because of her--or his--jurisprudential orientation.

I admit that, from what I can tell, Ginsburg didn’t go quite as far in that direction this time as last, but the allusion to her list is telling. She clearly doesn’t simply mean a short list of distinguished, as opposed to undistinguished, female jurists.

I can’t imagine why it would be inappropriate for a sitting justice to express publically, in general terms, her views as to what kind of person should sit on the Supreme Court. What important or legitimate interest or principle is undermined by such an expression? It seems preposterous to me that a sitting justice should be gagged and preventing from talking about the qualities that make a good, or qualified, justice. Further, it seems to me that the President, in choosing a nominee, should take into account and indeed weigh very seriously whether that individual is likely to appear to her colleagues on the court as qualified and therefore enjoy their respect. A justice who is seen to be unqualified or appointed for purely political reasons is likely to be ineffective, because unrespected, straining the collegiality that is required to make the Court work well.


My criticism doesn’t amount to gagging (though I might gag at what she has to say). By speaking, however, she does open herself to criticism, not just about the substance of what she has to say, but about the appropriateness.

Of course, I would neither be troubled nor particularly interested if all she said was that she wanted someone highly qualified as a colleague. That almost goes without saying and would attract little or no attention.

What Ginsburg means is clear from this account: her test of fitness excludes those with whom she disagrees. This goes a lot further than just a general statement about judicial qualifications. No president could or should be bound to consider this. Or should, for example, Roosevelt have considered his nominees’ fit with members of the existing Court’s opposition to New Deal legislation?

In the linked article, Ginsburg is cited as making the obviously correct point that the mere appointment of a woman to the court is not necessarily a victory for women’s rights.

Later in the same article, when asked about a disagreement between herself and John Roberts on the place of foreign law in Supreme Court adjudication, Justice Ginsburg replied that what mattered was that Roberts was the kind of person who was willing to listen and learn. In other words, what Justice Ginsburg said was NOT, as you suggest, that persons who disagree with her are disqualified from sitting on the Court, but rather that disagreement is not a problem, provided the nominee is prepared to be collegial--to consider with respect the differing points of view of her brethern and to keep an open mind. I also agree with her that John Roberts is not only acceptable in this respect but I feel personally he is exemplary.

As for Roosevelt and the New Deal court crisis, I’m not sure this is a relevant example. Roosevelt was prepared to contemplate arguably extreme measures in the presence of an arguably extreme situation. In considering what should be the norm one should not take one’s orientation from the emergency, the exception, the crisis. Here I am with Leo Strauss and contra Carl Schmitt.


Two points. First, regarding Roberts: could Ginsburg have said anything other than that he might be open to persuasion, given that he was, when she answered the question, a shoo-in as C.J.? She clearly is sufficiently politic not simply to poison that relationship. And if all that she had ever said was that she looked for justices with whom she could reason, no one could, er, reasonably object. But it’s just as clear from what she said that her preference would be for someone whose substantive orientation was different from Roberts. If must be conservative, or faithful to the constitution, let him be "reasonable." Best of all would be someone who advances the expanding rights agenda. Heaven help us if such a person were willing to listen to his or her "conservative" brethren!

As for the Roosevelt comparison, I’m not convinced that the current situation is any more or less extreme or normal. In the 1930s, we had adherents to an "extreme" version of substantive due process, one that privileged economic rights. Now we have adherents to a different sort of extreme--extreme individual liberty. Neither is demanded by the text of the constitution, or by the original intent of its authors. Roosevelt replaced partisans on one extreme with those of the other. I don’t think Bush will do the same thing. But in neither case does it strike me that continuity with the preferences of the current Court should be the principal consideration. Indeed, that strikes me as at most a minor consideration, falling far below fidelity to the constitution in order of importance.

It would be very unusual if a judge were not to have a preference, to some degree, that other judges on her court share broadly the same understanding of the role of the court and the nature of the judicial enterprise in our system of government. If you read what Rehnquist, Scalia and others have said about the court and judging, you could easily infer that on balance they would prefer judges with some approaches not others. Only a judge who was a thoroughgoing relativist would have no sincere beliefs about what is best for the Court in terms of approach to adjudication. Thus the fact that Ginsberg may have a preference, and indeed such a preference could even be inferred from things she says publically, does not lead at all to a conclusion of inappropriateness or uncollegiality.

As for the situation faced by Roosevelt and the comparison with the present situation in America-I leave it to the historians to answer whether, in good conscience, it can be said that these situations are really comparable. At least, nothing that Bush has said about the court that I know of clearly suggests that HE thinks he is dealing with an extraordinary regime crisis, which is what Roosevelt seems to a have felt he was facing.


Was any "conservative" justice in 1993 going around making speeches about his preferences regardng President Clinton’s appointees? President Clinton clearly didn’t care either about "balance" or about whether Scalia, Rehnquist, or Thomas thought a Clinton appointee would be jurisprudentially "sympatico." Had one of those fellows made such a speech, I have no doubt but that they would have been criticized for doing so, either on the grounds of their political naivete or on the grounds of a certain kind of inappropriate political meddling. The issue is less whether any justice has folks he or she would like to see on the Court, but a recognition of whether these preferences ought to be articulated in public speeches in a manner intended to influence the public debate, which Ginsburg clearly, albeit coyly, wishes to do.

Of course, I don’t mind judges and justices engaging one another in the realm of legal theory or jurisprudence. The Scalia-Breyer debate seems perfectly appropriate. But this seems different.

On the Roosevelt example, I’ll leave it at this. If in fact FDR faced a regime crisis, then, yes, we probably shouldn’t take his attitude toward judicial appointments as normal or normative. But I would continue to insist that while on some level an appointee ought be be capable of winning the respect of the current justices, that is a minor consideration, far less important than whether he or she is faithful to the Constitution.

I would add, however, that President Bush has placed substantial emphasis on the Court, in large part because on certain "social issues," it is pushing us toward a genuine political precipice.

I do not think you are representing accurately the Justice’s remarks. You make it seem as if she expressed a preference for or an objection to a particular individual. Surely, if she had named names, the issue would look rather differently. Nevertheless, even were that so, the judiciary remains a branch of government in America. Provided there views proceed from jurisprudential considerations and ideas and not personal, religious or partisan favouritism, a role of the justices themselves in guiding the nation on the choice of who should be sitting on the Court seems hardly inappropriate. In this respect, the Court after all is TRULY the least dangerous branch; it has no formal power to propose or veto, and therefore no formal power to abuse.

I did not discuss the issue of "balance" on the court but only collegiality. I don’t have any special insight into the mind of Bill Clinton but it is difficult for me not to see the justices he appointed as distinguished jurists and I don’t think when they were appointed either of them appeared to be a political hack or an ideologue indifferent to the law and the rule of law. Similiarly, I think that Bush father and (so far) son have made appointments of distinguished legal minds who are not political hacks or narrow ideologues.

Finally, on Bush the son and the Court, I admired very much his statesmanlike attitude when the Court upheld the affirmative action policies of my law school. The Administration had intervened on the other side but when the ruling came down President Bush was accepting but also respectful of the decision, making no effort to discredit it or to suggest that the Court was pushing the nation toward, as you put it, a "political precipice."

I guess I need to quote what I regard as the "offending" lines from Ginsburg:

There are "some women who might be appointed who would not advance human rights or women’s rights," Ginsburg told those gathered at the New York City Bar Association.

I don’t think I misrepresent anything when I suggest that this point of view has nothing to do with a nominee’s excellence as a judge or advocate, and everything to do with devotion to a particular political/legal agenda. And, of course, the precipice to which I referred has nothing to do with affirmative action and everything to do with the Kulturkampf surrounding the issues for which human rights and women’s rights are code words.

Because the constitution is silent regarding any formal role judges are to play in choosing their colleagues, the only possible role they can play is an informal one. There seem to me to be two sorts of informal roles they can play--that of a "private," discreet consultant, which acknowledges that judges have no formal role, and that of public pundit, which can only be intended to influence the process from outside, that is to say politically. The former seems to me more in accord with the spirit of the constitution. After all, if judges could use their prestige to influence the process of choosing their colleagues, one of the great political checks on their power is weakened.

It seems to me that you read too much into the quoted statement. What she was simply saying is that don’t think that the appointment of a woman to the Court will be an advancement for women’s rights. In other words, if your concern is women’s rights, focus on the credentials of the candidate in that respect, not exclusively whether they are a man or woman. I don’t read this statement as meaning that she would view a woman on the Court who was NOT an advocate for women’s rights as an unqualified judge--someone undeserving of respect as a colleague.

On the question of the seperation of powers and the public role of judges in the selection process, too bad James Madison isn’t around to give us his view! I haven’t fully thought this through and maybe it would be a good article to write, but my current view is that the justices are to an important extent the guardians of their own place in the US system of government--the legitimacy, vitality and dignity of their office. Just as the office suffers from the judges improperly politicizing it, the judges’ views may be an appropriate check (and a benign one because here their authority is moral alone) on the temptation of a President to herself inappropriately politicize the office, appointing to the court an individual who cannot command respect as being there at least in part for reasons of legal competence not party politics, or an individual who might inappropriately and dangerously polarize the court or seek to disrupt inappropriately the weight of precedent. Thus, I see here the functioning in a healthy way of checks and balances that both protect the separation of powers and make that separation a living guarantee of liberty.

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