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Monday, October 20, 2014

Ginsburg at 92Y

Supreme Court Justice Ruth Bader Ginsburg and former President of the Supreme Court of Israel Dorit Beinisch joined NPR’s Nina Totenberg yesterday, adding to Ginsburg's latest public appearances. Sotomayor private let her know that she might be overexposing herself. Seriously, it does seem Ginsburg is putting herself out there a lot recently. And, her comments continue to be somewhat blunt and a bit controversial though those in the know are by now familiar with her standard replies. 

I listened to the very beginning of the appearance and was somewhat annoyed with three of her answers. Totenberg started with the Saturday morning voting rights order/dissent and Ginsburg explained that the matter came at the last minute and it took time for her to write a reply. The general assumption is that she was sending a message here and the timing underlines the point. I really don't see why it couldn't, e.g., not just wait to Monday morning.  The USSC could have just stayed it until then. 

The more dubious comment was in response to a question regarding the by now much criticized slew of unexplained actions "by way of injunction, stay, unsigned order, and wordless denials of cert petition"  Dahlia Lithwick suggests -- as might be understood by people who recognize the technique in less marble tinged locales -- such silence can "hide a multitude of conflicts."  Ginsburg noted that these orders etc. can be a result of last minute appeals that require quick responses and there isn't time for more. 

Oh please.  There is time for a brief explanation especially as applied to same sex marriage cases which they had for some time and was not compelled to deny right away.   She also noted as to the SSM cases, there is no circuit split, so the Court wouldn't generally take one.  Good to hedge a tad, since if you look up the guidelines here, we have this:
a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
This is the third "consideration governing review" on cert, putting aside some debate on just how without conflict we truly are. Now, I have said here and elsewhere that waiting if reasonable, but in the spirit of another recent comment, it might not be quite as easy as all that.  The question of a split itself is only so clear if we deal with a post-Windsor world, since older cases in both federal and state realms rejected the claims. Every case the USSC does not take in effect builds the momentum with them granting stays sending a signal to appellate courts they should not either. 

The final answer that bothered me was in response to calls for her to retire. I respect the prudential concerns of others -- personally 2015 looks like a good time to do it -- but surely she has every right to stay on as long as she thinks proper. The annoying thing is when she starts saying things like there being a low likelihood that someone as good as she would be confirmed in this atmosphere. Well, the fear is that with a Republican Senate or even worse a Republican President, the replacement would not be ideal.  So, yes, the people promoting this viewpoint thinks we would get a better choice -- by their likes -- if she had retired in 2014 or did so in 2015.

I personally find it unlikely that even if Republicans gain control of the Senate -- a prospect that is depressing and might be settled with runoffs and challenges for months -- her replacement would not be a perfectly reasonable sort who at the end of the day will vote like Obama's other two picks.  They might not be as flashy as Sotomayor or a newcomer to the bench like Kagan, but let's take Judge Wood.  Now, she would be 65, which might seem a bit old. Ginsburg was over 60 when she was confirmed.  Would is really be unlikely -- especially since her age might be a "plus" for some since she would on the Court for somewhat less time (though given recent trends, could be there twenty years) -- for her to be confirmed?

RBG has a bit of a high opinion of herself here. She clearly was a civil rights great, but at the time of her appointment was seen as something of a moderate.  There must be at least one option that will get at least enough support from a few Republicans to avoid a defeat. I'll believe a true filibuster here when I see it -- the last time that took place on this level was to block Fortas for Chief Justice, a guy with some baggage.  At best, this would require Obama not to pick someone who can be tarred as too liberal. This probably isn't really his inclination anyway. 

Judges have to be judicious in comments made publicly, but at some point, we have a right to call "b.s.," even of the Notorious R.B.G. Might want to tone it a bit down.

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