I devoutly wish that Ruth Bader Ginsburg had lived on for a very long time. She was fair-minded, thoughtful, and occasionally brilliant. I valued her reasoning even when I disagreed with her conclusions, and because she was a careful thinker, I am confident that there were times when she was right and I was wrong.
I devoutly wish that Donald Trump were not the president of the United States, largely because he is everything that Ginsburg was not.
But clouds have silver linings, and I take great solace in the fact that Trump will (probably) appoint Ginsburg’s successor. History suggests that a Trump appointee will share the Ginsburg characteristics I most admire, and that a Biden appointee would probably not. The world is a complicated place.
Prof. Landsburg,
In Ch 8. of Fair Play, you discuss the idea that it is morally objectionable to force people who build apartment buildings or shopping malls to be compelled to follow modern civil rights law, ADA (42 U.S.C. § 12101), etc. Similar arguments apply to the right of corporations and partnerships to chose their composition. My impression is that Ginsburg made her living forcing people to comply with laws that are objectionable on these grounds.
What are her writings/reasonings in this area that you find most valuable? What books or articles give the best theoretical justifications of her philosophical position?
D
I’m sure RBG had many fine moments. However her wish that ‘I will not be replaced until a new president is installed’ is not one of them.
The Supreme Court is not supposed to be political. Her wish makes her suspect.
Surely the Republicans made it clear that a SC justice should not be appointed close to an election. Graham went on the record to say so and asked people to hold him to account.
It would be the height of hypocrisy to reverse that now, very much closer to the election so the process will have to be accelerated.
Maybe republicans are just unprincipled liars, prepared to subvert anything to get their desired outcome.
At least if they do that it will be obvious to everyone. I just don’t think their supporters care.
Garland was a fairly conservative choice, with support among republicans.
It is interesting that the strictly partisan voting is relatively recent.
Of the justices back to 1971, the Senate votes went(Party nominating: for-against):
R: 68-26
R: 89-1
D: 98-0
R: 99-0
R: 98-0
R: 97-0
R: 90-9
R: 52-48 (but 11 Dems voted for)
D: 96-3
D: 87-9
R: 78-22
R: 58-42 (4 Dems for)
D: 68-31 (9 R for)
D: 63-37
R: 54-45 (3 Dems for)
R: 50-48
Going back to 1970, Republicans have nominated 14 SCJ and Democrats 5.
This is no doubt familiar to those in the US, but is something of a surprise to me. Not that partisan politics is more important now, I knew that, but the degree of consensus that used to appear to prevail.
Doug (#1): Quite a fair question, and one I’m hesitant to answer without going back and reviewing some of her arguments that have impressed me in the past, to make sure I remember them correctly.
I hope I’ll have time to do this soon.
Harold (#3): What your raw numbers don’t show is that the great change dates from the Bork hearings, which were politicized beyond all previous norms and the nominee was buried under a heap of false and slanderous accusations. The chief culprit in that fiasco was the chairman of the Senate judiciary committee, one Senator Joseph Biden.
Whether Trump gets a justice confirmed before Inauguration Day probably doesn’t matter. If he wins the election he can do it later; if Biden wins with a senate majority the democrats can and likely will pack the court.
“Surely the Republicans made it clear that a SC justice should not be appointed close to an election.”
More accurately, they made is clear that the majority party was not obligated to confirm a justice close to the election.
In 2016, the White House and Senate were controlled by opposite parties that did not agree. The situation was much different from today, where the Senate has been pretty happy with the appointments. Also, adding a fifth vote to a four-person voting block would have had a lot of negative consequences.
I think the chief culprit was Kennedy, not Biden.
It seems the Bork hearings were something of a watershed in how these things are conducted, but just looking at the numbers it is not an obvious turning point.
Bork would have been 6th from the top in the list. Kennedy (Bork’s replacement nominee) got approved with 97-0. With Bork, 6 Republicans and 2 Democrats voted the other way, so even that was not quite as partisan. 6 Republicans voted against their president’s nominee.
Reagan made it a campaign pledge to appoint judges based on their political leanings regarding “family values”, thus politicizing the appointment of judges beyond previous norms in a way I don’t think had been done before. Sure, it was always somewhat political, but I think this was the first time it was explicitly stated in a campaign to promote a particular political agenda. This set the scene for opposition to these appointments.
It seems that after the televised hearings, for which Bork had not well prepared, the public was against him. His part in the Saturday Night Massacre did not help. He had also said a great many controversial things. Televised hearings were new, so perhaps it not a surprise that Bork was not well prepared, but Biden was. He played a centrist role and allowed Bork to hang himself without attacking him personally. Kennedy did that. Bork’s lengthy discussions about the law and his views on it worried enough Republicans to swing the vote. An example was his opinion in Dronenburg vs Zech, where he dismissed protection against homosexuals in the Navy as there was no explicit right to engage in homosexual behaviour.
The next contentious appointment was Thomas, he got in with 11 Democratic votes for him. Biden was criticised, for not defending Hill more and allowing aggressive questioning of her by Republicans. His approach in both situations was of attempting to reach bi-partisan agreement by appealing to moderates rather than stoking up radicals. Seems exactly what we need now.
Referring to Cavanaugh, you said the second best nominee was probably just about as good as the first. I am sure the same could be said of Bork.
The Republicans have played it well politically, By abandoning principles, they have the democrats in a bind. They can either stick to their principles and get outplayed time after time, or play the same game an be accused of hypocrisy. In this case, they can argue that the Dems believed appointment in an election year was OK, so they should not object to Trump’s appointment now. If it comes up again with a Dem president, the Republicans can simply refuse to have a hearing again.
“Also, adding a fifth vote to a four-person voting block would have had a lot of negative consequences.”
Merrick Garland was a centrist choice who had support among many Republicans. He was also fairly old at 63. A less divisive choice would have been hard to find.
>>> What your raw numbers don’t show is that the great change dates from the Bork hearings, <<<
Bork? Are you serious? Bork tarnished himself beyond repair during Nixon's Saturday night massacre. Rather than resign as his superiors had, he carried out Nixon's order to fire the Special Prosecutor.
Bork is a man who, when the hour came, displayed a total lack of integrity.
To nominate such a man to the Supreme Court is an affront; to expect the Democrats to confirm him is ludicrous.
SL: “I take great solace in the fact that Trump will (probably) appoint Ginsburg’s successor. History suggests that a Trump appointee will share the Ginsburg characteristics I most admire”
Gorsuch wrote the opinion in Bostock v. Clayton County, hallucinating
a protection for transexuals in the Civil Rights Act of 1964.
If that’s what Congress intended, they would have included it, or amended it later. Is legislating from the bench your preference?
“Reagan made it a campaign pledge to appoint judges based on their political leanings”
On the contrary, Reagan appointed non-political judges, and he criticized judicial activism, where judges follow their personal views.
“Merrick Garland was a centrist choice” — Not really. Scalia believed in following the text of the law. Garland would have been a radical shift.
“Rather than resign as his superiors had, he carried out Nixon’s order” — In other words, Bork followed the law and did his job.
“Gorsuch wrote the opinion in Bostock v. Clayton County” — Ginsburg joined that same opinion.
#12 “he carried out Nixon’s order” Which was illegal (as ruled by the courts).
“On the contrary, Reagan appointed non-political judges.”
No, he did exactly that. He campaigned on appointing judges who shared his political beliefs, which was the point. What he later did is a separate issue, but he elevated Rehnquist to chief justice, tried to appoint Bork, appointed Scalia. True, he did appoint O’Connor as well. I think Reagan was a principled man and had promised to appoint a woman, so he did so.
““Merrick Garland was a centrist choice” — Not really.” Quite simply, he was. It would have replaced a conservative justice with a centrist justice. The claim was not that it would leave the court unaltered. That would be absurd.
#11. Funny that a textualist, conservative SC justice is very clear that they are doing the opposite of ruling from the bench, but applying the law as written. Had Congress intended differently they should have written differently.
Opinion here if anyone has not already read it.
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
The argument in a nutshell is that an employer sacking a man for fancying men would not sack a woman for the same actions – namely fancying men. The “but for” condition is therefore reached – the man would not be sacked “but for” his sex. Lots of precedent regarding mothers vs fathers etc.
I thought at the time Trump appointed Gorsuch that he may not *always* go the way Trump would want. Although, to be honest, in this case I doubt Trump cares either way except that it is seen a loss for him. Gorsuch seemed to be straight down the line and not political in the party affiliation sense, although with very conservative leanings.
Professor,
It is unclear to me how you reached the conclusion that President Trump is likely to select a Supreme Court nominee who possesses the qualities you most admired in Justice Ginsburg, which were said to include a “fair-mind” and “careful thinking”. In fact, it seems that history suggests the opposite verdict if by “history” you meant either the character of the two Justices Mr. Trump has appointed thus far or the temperament of the President himself. It seems most probable that you were referring to the former, in which case I would dispute the idea that either of the preceding nominees possessed “fair-mindedness” in character or in jurisprudence. Particularly in the case of Neil Gorsuch, a proponent of so-called “natural law legal philosophy” which is in reality a form of judicial activism in much the same sense as the kind practiced by Ruth Bader Ginsburg. Kavanaugh, too, has expressed skepticism of the historical context of constitutional provisions, in favor of modern interpretations (i.e. rejection of the legal validity of ubiquitous historical documents such as the federalist papers). And is “thoughtful” really the word that came to mind when listening to the Kavanaugh confirmation hearings? It seems to me that both of Donald Trump’s appointees are thorough political ideologues who exemplify the opposite of what was to be admired in Justice Ginsburg, giving me no reason to believe a third nomination will yield different results. The world is a complicated place.
#14. We can also look to his lower court appointments. He is appointing much younger, much less experienced people with stronger political affiliations than any previous president.
The role of the American Bar Association, an ostensibly non-political body, has been reduced and the role of the Federalist Society, an openly political body, has been increased.
L. Steven Grasz was the first person to to be appointed after a unanimous “not qualified” vote from the ABA. Other candidates with that rating since Clinton have withdrawn. Bush nominated 8 “non qualified” candidates in his 2 terms, three of which were withdrawn. Trump has so far nominated 10, two of whom withdrew. Trumps “not qualified” nominations account for 10 out of 21 since 1989. That includes 3 2-term Presidents plus one single term president, so that is quite some record.
A 2014 paper (from Rochester) studied the ABA ratings for bias. It found bias against women and minority candidates, but no evidence of partisan bias.
https://cdn.ballotpedia.org/images/2/2d/Maya_Sen_Ratings_may_disadvantage.pdf
A paper studying ratings from Carter to GW Bush found partisan bias but no bias against minorities. They did specify
“However, it important to emphasize that the differences among Democratic and Republican nominees primarily affect which top rating they receive rather than their probability of being rated as Not Qualified.”
https://www.jstor.org/stable/41759317
So we have the current president attempting to appoint a huge increase in the number of “not qualified” candidates, for which nobody has found any indication of partisan bias on the part of the ABA.
It will be interesting to examine the candidate on the basis of “fair minded” and “reasonable thinking” when they are announced.
Let’s not forget WHY Trump seeks to get another right-wing judge appointed prior to the election; he seeks to win by sabotaging the election as much as possible, hoping that in the ensuing chaos, a right-wing court will end up appointing a Republican president regardless of the will of the electorate, just as it did in 2000.
Advo: Even if all that is true, the President and the Senate have a duty to fill the vacancy, and not leave a possible 4-4 tie on the next lawsuits to change the election outcome.
Roger (#17): I would actually prefer a 4-4 tie in the event of am election dispute! Why? Because that way we would actually be forced to follow the Constitution by allowing the House of Representatives decide the contested election. One of the worst sins of the Bush v Gore fiasco, which I agree is likely to repeat this year, is that the Supreme Court circumvented our Constitution by not allowing the Florida recount to play out and by not allowing the House of Representatives to decide in the event either Bush or Gore wished to challenge the end result of the Florida recount. Instead, we got a constitutionally illegitimate president and our Constitution was ignored.
#17 ” Even if all that is true, the President and the Senate have a duty to fill the vacancy”
I presume you were much more opposed to the Republican failure to have hearings for nearly a whole year in the case of Garland.
It is really quite staggering how much has changed in just one term. Trump now has the DoJ in his pocket and is clearly planning to subvert the voting process to keep legitimate votes from being counted. With the DoJ on his side, he will be able to raise challenges that would have been unthinkable 4 years ago.
The Gore vs Bush case was interesting, to say the least. It has been argued that all the SC Justices used arguments against their prior legal jurisprudence. The conservatives to interfere in State issues and expand SC interpretations of the Equal Protection clause. The liberals the opposite. There seems to be some evidence that some conservative Justices went with Equal Protection rather than Article II of the constitution as grounds because it would seem fairer.
That was a very special case. The vote was extraordinarily close. It is certainly plausible that there were more votes for Bush in Florida and statistical analysis concluded that Gore would not have won had he pursued his re-count strategy. There was no suspicion (I think) of the candidates deliberately making it more likely that the courts would become involved before the election. Even so, the involvement of the SC was damaging to its reputation.
In the current election there is clear evidence of Trump trying to ensure that the courts will become involved, to make voting more difficult and to make a case for not counting votes. He has said that he will not concede until the SC rules. The pre-planned assault on the vote counting by legal action from the DoJ is so far removed from what anyone would have considered possible 4 years ago is really astounding.
It is seriously being talked about that by delaying the count long enough State Legislators could appoint the Electoral College delegates, regardless of the vote, using bogus claims of fraud to justify it. Unlike Gore vs Bush, we could easily end up with a result that clearly does not represent the vote. This is crazy stuff – how did it come to this?
With the electoral college advantage and fair voting, Biden has only 46% chance of winning with a 2-3 point win in the popular vote. It only rises to 98% with a 5+ point win (according to Nate Silver at 538). Trump’s tactics have a good chance of succeeding with even a significant win by Biden as it will not take many votes discounted to swing it for him.
I predict that if Trump wins again, he will run for Vice President in 2024. If Republicans win, the president will step aside, leaving Trump as the president. I believe this mechanism is plausibly constitutional and the only way he can get a 3rd term, but what do I know?
The relevant part of 22 Amendment.
“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”
Trump would not have served more than 2 years as President to which some other person was elected President, so the second part does not seem to apply. The constitutionality of this mechanism is disputed, but the SC will decide. Breyer is 82, so there is a chance he will not live out the term and be replaced by another Trump appointee, who would have to rule on Trump becoming VP. Although life expectancy at 82 is 8.5 years so he has a good chance of making it. With a conservative 7-2 majority it only requires a plausibly constitutional justification to get through.
#18: It doesn’t work that way. A 4-4 tie just affirms the lower court decision. In 2000, the Florida statutory recounts did play out. Just not the way Gore wanted.
#19: In 2016, the Senate chose not to confirm Garland. That was its privilege. Yes, I agree with not confirming Garland. He would have been a poor replacement for Scalia.
part 1 of #20
that is my point! by affirming the lower court, the 2000 election would have been contested and would have required the House to decide, as is established by our constitution (not the courts)
#21: That is not so clear. All of the Florida counts and recounts favored Bush. The result was only being contested by the Florida supreme court, and it is not clear that it had any authority to do what it was doing. If you don’t think that the US supreme court should have gotten involved, then you shouldn’t think that a 4-3 Florida supreme court majority should get involved either. I suppose the US House could have refused to accept the Florida electors, no matter what the courts said.
Roger (no 22): I hear what you are saying, but at the same time we are a “federal” system and our constitution allocates the power over election rules to the States. So let’s say Bush would have won the recount. In that case, if Gore refused to accept the results, the House would step in to decide the contested election, which is precisely what the Constitution provides for!
#23: Bush did win the recounts. Whether Gore accepted the results or not, Florida had to send a slate of electors to Washington. Possibly the Florida secretary of state, legislature, and supreme court could have disagreed, and the federal courts could have refused the case. Then the US House would have to decide what to do.
Roger, the re-counts were stopped by the SC. I had to look it up, but it was informative.
1. Automatic machine recount was triggereed by the result difference less that 0.5%. This was possibly completed, although some dispute that all counties did so. This reduced the margin to 327. Essentially the election was tied.
2. Gore asked for manual re-count in 4 counties, as he was entitled to by Florida election law. The law also said that counties must certify their result within 7 days. There was a conflict here which had to be resolved by the court. The Circuit Court ruled that the 7 day limit was mandatory, but the recounts shoud continue and be considered as late entries by the Sectretary of State. The Sec. said there was not sufficient justification to include the late entries. She would certify the result on Nov. 18
3. Nov. 17-21 The Florida SC stopped that and allowed the recounts to continue, delaying certification until Nov 26. On Dec 8th the Florida SC ordered a State wide manual recount.
4. Dec 9, SCOTUS stayed the recount. My understanding is that they could have remained out of it, or decided that it was a matter for the State. Dec 12 SCOTUS ruled the recount unconstitutional on equal protection grounds. Technically Florida could have tried to address these problems and continued the recount, but few thought this was viable. The SC stopped the recount called for by the Florida SC.
The election result was effectively a tie, the margin between the candidates less than the error of any counting system. It is impossible to know who actually won. Had the recount gone for Bush, then Gore would have no reasonable grounds to dispute the result. Had they gone for Gore, then Bush would have had some grounds to dispute it. Then the House could have adjudicated.
Yes, it is true that the Florida SC voted 4-3 for some sort of very late recount in addition to the recounts that had already been done, and the US SC stopped it as illegal.
We do know who won. Bush won.
As it turned out, there were enough contestable ballots, such as those with hanging chads and other irregularities, that the loser could always argue that another recount might have had a different outcome.
Yes, the US SC could have stayed out of it, but the Florida SC could have also. It was the Florida SC that stepped in and ordered something radical that had never been done before.
“We do know who won. Bush won.” Yes, in one sense, but we can never know for sure who had the most votes cast for them.
“, but the Florida SC could have also. It was the Florida SC that stepped in and ordered something radical that had never been done before.”
SCOTUS had the option of ruling on this basis (Article II) but they did not so rule. They went for equal protection as the reason.
On topic, is Coney Barrett going to be as fair minded, thoughtful and occasionally brilliant as Ginsburg?