Monday, September 12, 2016

Justice Ginsburg Did Nothing Wrong

By Eric Segall

Last week a number of commentators lashed out at Justice Ruth Bader Ginsburg claiming that she made inappropriate remarks. According to Supreme Court reporter Bob Barnes of the Washington Post, the following exchange took place between students at Georgetown and the Justice about a lawsuit challenging the Senate's refusal to hold a hearing or vote on Merrick Garland:

“If the Senate is not acting, what can be done about it?” Ginsburg asked rhetorically. “Even if you could conceive of a testing lawsuit, what would the response be? ‘Well, you want us to vote, so we’ll vote no.’”

About the Senate’s intransigence, she also said: “I do think cooler heads will prevail, I hope sooner rather than later. The president is elected for four years not three years, so the power he has in year three continues into year four….Maybe members of the Senate will wake up and appreciate that that’s how it should be.”

These comments angered Josh Blackman who accused Justice Ginsburg of issuing an “advisory opinion” about the pending lawsuit against the Senate. He also said that she was continuing to earn her nickname “Notorious” by inappropriately criticizing the Senate and by getting the law of the nomination process wrong (the Senate has no duty to hold hearings or vote on the President’s nominee according to Blackman). 

Ginsburg’s comments also upset Ed Whelan who said she “once again couldn’t contain herself.” Whelan asked rhetorically “How does Ginsburg think it appropriate to weigh in on this matter and to charge that Senate Republicans are being hotheaded and irresponsible?” Whelan also thought she shouldn’t have opined on the “testing lawsuit” against the Senate filed in the lower court.

Justice Ginsburg did nothing wrong by criticizing the Senate for failing to act on President Obama’s nominee to the Court (I should add I do not agree with her opinion on the matter). This issue cuts right to the heart of the Court’s power as an institution, and there is no plausible reason the Justices shouldn’t offer their opinion on that subject.

One does not have to be a full throttle legal realist to accept that the Court is a hybrid legal/political institution. The issues surrounding the Senate’s refusal to consider a nominee for the Court are one hundred percent political and do not implicate the Justices’ legal duties to decide cases and controversies any more than the Justices’ annual testifying before Congress on why they need the money asked for in their budget. 

The Justices have a right to protect their own institution, as Chief Justice Hughes did in a letter written to the Senate committee considering FDR’s famous Court packing plan in 1937. Moreover, contrary to what Blackman suggested, Ginsburg did not refer to constitutional law in her remarks and in context was arguing the Senate simply wasn't doing its job. Again, there is nothing inappropriate with the Justices protecting their turf (just as the Congress and the President do every day), and there is no reason they have to agree as a group on such issues.

Her comments about the pending case challenging the Senate’s actions are a little bit closer to the line but Whelan, Blackman, and any constitutional law expert worth her salt knows that the lawsuit will never, ever, get past a motion to dismiss on standing and immunity grounds, and, in any event, Justice Ginsburg did not say how the suit should be decided but simply what the Senate’s reaction to any possible judgment might be. Supreme Court Justices make public statements all the time that implicate cases that may come before them (Scalia's many rants about the Constitution being "dead, dead, dead" were obviously aimed at abortion and gay rights lawsuits both of which he mentioned in an Atlanta appearance).

I recently published an article detailing all the ways that Supreme Court Justices hide from the American people (I target the usual suspects: lack of cameras, lack of recusal procedures, anonymous cert. grants, and the absence of any rules governing the Justices’ taxpayer funded official papers). Justice Ginsburg has not been shy about expressing herself openly over the last few years on a number of issues the public cares about. I won’t defend each and every one of those statement but, as a general proposition, it is refreshing to see and hear a Supreme Court Justice reveal more of herself as a person. I hope she continues to engage the public in this manner.






3 comments:

Joe said...

Those two can be tools.

One was in high dudgeon because he for some reason didn't consider ninety-something John Paul Stevens really "retired" so felt some of his remarks were inappropriate.

Your overall stance seems correct as applied here. She provides a hypo. I think (though people disagreed) her comments on Trump crossed the line, but this is different. Also, "the law" on the duty of the Senate here is far from crystal clear & precedent (to the degree we care) seems to favor her viewpoint.

Greg said...

I think Ed Whelan is right that the real problem isn't the hypothetical, but the direct criticism of the Senate on a current political issue. Then again, it was a very mild criticism as she continued her (in my opinion) characteristic optimism in expecting that eventually "cooler heads will prevail."

Even there, some of her colleagues have either directly or indirectly agreed with her that the Senate should take action to either confirm or deny the nomination. I agree that those speaking out in favor of confirmation are doing so in the interest of the court as an institution.

What Justice Ginsburg didn't do is express any opinion on whether or not the Senate has a constitutional obligation to act on Garland's confirmation, as opposed to a moral obligation. To express an opinion on such a constitutional obligation probably would be going too far.

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