Strengthening Constitutional Self-Government

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Ginsburg rules

Edward Whalen is not impressed by Ruth Bader Ginsburg’s intervention in the judicial nomination process. Neither am I. The only good to come of this is her refreshingly frank admission that gender matters less than substantive commitments that, according to "her" rules, judicial nominees aren’t supposed to make before they’re appointed. We all knew that, for her, substance mattered more than process. Now we know it even better.

Discussions - 7 Comments

Ginsburg is a hack.

Joseph: I don’t want to be rude here, but why are people on the right always telling other people to be quiet?

I suspect, if one were to do a little research, that one might find sitting justices who comment on ongoing nominations processes, especially in the anodyne way Ginsburg just did, in the same way that - contra Powerline - a little research reveals that ex-Presidents don’t always refrain from criticism of incumbents.


Do you have other examples of sitting Supreme Court justices making public observations about the kinds of colleagues they’d like to have when a nomination is under consideration? I’m not an historian of Supreme Court nominations, so I’d genuinely like to know if this is normal, or at least if there are a few precedents for it. Looking from the outside, it strikes me as ill-advised...lifting the curtain a bit too much, compromising just a bit the impartiality of the Court, making it a little harder for judges to interact collegially. We can perhaps be, ahem, "grown-ups" and say that the Supreme Court is always "political," but that is precisely the easy impression that I’d like to combat. Judges and Justices should at least have a bad conscience about exercising will rather than judgment. And we should feel entitled to call them to account when they do, whether it be on behalf of an agenda we don’t like or on behalf of one we do (were it enacted by a legislature).

Ginsburg is a disgrace to the robe.
Basic research into her record prior to her SCOTUS appointment would have revealed a truly bad apple. But the Republicans were too busy being nice.
Now, they get what they paid for.

Ginsburg seems to be following the NAACP’s line of reasoning when it came to replacing Justice Thurgood Marshall’s place on the bench: any black, just not a conservaitve one. I.e., one they would deem "authentic." Or as Marshall put it, something to the effect of, "A black snake can bite you just as well as a white snake."

It’s striking how often liberals, including very prominent ones, resort to subhuman and violent metaphors ("Neanderthal," "snake," "punch the president out" ...) in reference to conservatives. Marshall’s comment is
a frightening example of the Left’s fundamentally authoritarian bent. Other comments suggest the Left’s compulsion toward violence. It is not merely undisciplined language. It means something, and the meaning is very ugly. The aim of such people is to subjugate those who disagree with them. And the implications of that fact deserve some deep, hard, thought.

We aren’t in Kansas anymore.

Joseph: I’ll do a little digging on the historical question of whether sitting Justices make any comments on pending nominations. Right now, reading ex parte McCardle for con law class, and thinking about that eminently political being Chief Justice Chase, I wonder where the notion of an apolitical Court came from in the first place, and how firmly rooted it really is in American constitutional practice. We probably disagree on this, but I think that the easy impression is that the Court really is (ultimately) apolitical. Hence, our diametrically opposed vehemence, I suppose.

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