Bench Memos

Law & the Courts

More Ginsburg Logorrhea

In an event at Georgetown law school yesterday, Justice Ruth Bader Ginsburg once again couldn’t contain herself. In response to a question about Senate Republicans’ decision not to act on Merrick Garland’s nomination to the Supreme Court, Ginsburg stated:

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.

Ginsburg also expressed her doubts that a “testing lawsuit”—a lawsuit challenging the Senate’s inaction—would achieve anything.

(Video excerpt here.)

Some observations:

1. Ginsburg’s statement that the president’s power “continues into year four” is of course trivially correct, but the salient political point is that it parrots perhaps the stupidest of Democratic talking points against Senate Republicans—the claim that Senate Republicans, by exercising their own (clear) power not to act on a nomination, are somehow denying President Obama’s power to nominate.

No. Obama has the power to nominate, the Senate can choose whether or not to act on that nomination, and Obama can’t appoint Garland to the Court unless the Senate first confirms the nomination. (I’m passing over the recess-appointment power.) Not complicated. On the Constitution’s basic allocation of responsibilities, there is nothing for Senate Republicans to “wake up and appreciate.”

2. Senate Democrats are trying to have their dispute over the Garland nomination play a role in every Senate race this fall. How does Ginsburg think it appropriate to weigh in on this matter and to charge that Senate Republicans are being hotheaded and irresponsible?

3. Why does Ginsburg think it appropriate to speak out on the prospects of lawsuits on this matter (at least one of which is pending)?

Evidently the media’s kid-glove treatment of her when she spoke out against Texas’s abortion law and in favor of the attack on state marriage laws—and nonetheless didn’t recuse herself from the ensuing Supreme Court cases—has conditioned her to think that she is free to speak out, without consequence, on live disputes.

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