Nomination Problems for “Today’s” Justice Ginsburg

During a recent interview, Justice Ginsburg was asked the question that always seems to be bandied around: How about resigning when a Democratic President can nominate a replacement? Here was Justice Ginsburg’s response:

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. . . . So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.

Enter Ezra Klein at Vox and Harry Enten at FiveThirtyEight (Nate Silver doesn’t write all those articles himself?) to explain that the Justice is way off base. Of course she could be confirmed today, they explain. But I’m not so sure.

Klein talks about the filibuster a bit, and then states: “[Y]ou might think Ginsburg a radical. But she’s not. She doesn’t have many high-profile breaks with the other liberals currently on the Court.” This lack of radicalness (radicality?) means that “Ginsburg is a mainstream figure in American legal thought” and “that a Ginsburg-like nominee would clear the Senate today.”

Enten makes a similar argument, but with more data (in the 538 style). Using an ideology “score,” Enten notes that Justice Ginsburg is “less liberal than both of Obama’s appointees, Justices Elena Kagan . . . and Sonia Sotomayor.” And not only is Justice Ginsburg not that liberal, she “was one of the most qualified candidates ever nominated to the Supreme Court.”

So according to Enten and Klein, President Obama should have no trouble obtaining confirmation of a qualified left-leaning Justice to replace Justice Ginsburg.

I think that sort of misses the point. Obviously, I don’t know what was in Justice Ginsburg’s mind when she made her comments about potential judicial nominees “like” her. But one thing I do know: Justice Ginsburg is aware that Justices Kagan and Sotomayor were nominated and confirmed. I mean, they work right down the hall. She sees them in the cafeteria. She knows they are on the Court. Let’s give her a bit of credit.

So when she says “like me” I doubt she means it as an insult to her recently confirmed peers. Obviously, Justice Ginsburg is (and was) qualified to be a Supreme Court Justice. I can’t imagine she thinks her recent nominees are not qualified. She’s not saying, for example, “I was great when I was nominated! In today’s political climate, all President Obama can get is hacks like this!” So it’s probably not about whether they are qualified.

And yes, though Justice Ginsburg might not be a “radical” (I did not see her at the Occupy Wall Street protests), she is on the liberal wing of the Court. She likely didn’t run 538’s Segal-Cover ideological score, but she actually reads the other Justices’ opinions—along with internal Court correspondence that is not public. And she knows how they vote. So if Justice Ginsburg was talking about someone being “liberal,” she’s likely not talking about political leanings or some metric based on newspaper editorials. If she’s talking about ideology at all, my guess is she’s talking about how a Justice might advocate “liberal” outcomes within the Court. Or perhaps how, during the nomination process, the public and the Senate might fear that a potential Justice would advocate.

This issue—the issue of advocacy for liberal causes—is where I think 538 and Vox miss a big piece of the puzzle. I quickly pulled the pre-Court bios for Justice Ginsburg and President Obama’s recent nominations, Justices Sotomayor and Kagan. (I used Wikipedia. I am now hanging my head in shame.)

Justice Kagan

  • Law clerk at the U.S. Court of Appeals for the District of Columbia
  • Law clerk at the U.S. Supreme Court
  • Private practice at the prestigious DC law firm Williams & Connolly
  • Professor at University of Chicago Law School
  • White House Counsel
  • Professor/Dean at Harvard Law School
  • Solicitor General

Justice Sotomayor

  • Assistant District Attorney (prosecutor) in New York (under Morgenthau!)
  • Small solo practice
  • Commercial litigation practice at a mid-size law firm in Manhattan (made partner in 1988)
  • Judge on U.S. District Court for the Southern District of New York
  • Judge on the U.S. Court of Appeals for the Second Circuit

Justice Ginsburg

  • Law clerk for U.S. District Court for the Southern District of New York
  • Researcher and Director of Columbia Law School Project on International Procedure
  • Professor at Rutgers Law School
  • Founder of Women’s Rights Law Reporter
  • Professor at Columbia Law School
  • Co-Founder of Women’s Rights Project at the ACLU
  • ACLU General Counsel

You can see the difference: Before taking the bench, Justice Ginsburg (like President Obama’s nominees!) made her name as an accomplished lawyer, but she did so in the role of an advocate for traditionally liberal social justice issues. Indeed, before joining the Supreme Court, lawyer Ginsburg at the ACLU crafted a decade-long strategy to increase the legal scrutiny of gender discrimination.

Can you imagine an ACLU lawyer with a track record like that getting nominated to the bench today? This is the Vox and 538 mistake. They seem to conflate being liberal with being seen as a liberal advocate. The public and the Senate can forgive the former (elections have consequences, etc.) but likely not the latter.

Justice Ginsburg was, to use that dreaded word, an activist. (Perhaps she still is!) To the political masses, someone like Justice Kagan or Justice Sotomayor is likely more palatable because, based on their resumes, they are just straight-shooting lawyers who happen to be liberal. White-shoe law firm, prosecutor, law professor, civil litigator, etc… These are neutral positions that can be filled by liberals and conservatives alike. Heck, Justice Scalia was a law professor and worked at a law firm!

But if you’re an ACLU feminist activist, and you’ve chosen to devote your life and career to that cause, your score on an ideology metric really doesn’t matter. I agree with Justice Ginsburg: we’re not likely to see President Obama appoint someone “like” that.

 

 

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