Bench Memos

Law & the Courts

Honoring Justice Ginsburg’s Legacy

Supreme Court Justice Ruth Bader Ginsburg sits at the Supreme Court in Washington, D.C., June 1, 2017. (Jonathan Ernst/Reuters)

Yesterday we lost a true trailblazer. Justice Ruth Bader Ginsburg was both a respected academic and an accomplished advocate who reached the very highest levels of the legal profession. After serving for 13 years on the U.S. Court of Appeals for the D.C. Circuit, Ginsburg went on to serve on the Supreme Court for 27 years. Ginsburg was only the second female, and the first Jewish female, to serve on the Supreme Court.

When she was tapped for the Supreme Court by President Clinton in 1993, Ginsburg enjoyed a confirmation process that was smooth sailing—in part because her outstanding qualifications were simply undeniable. The fact that Ginsburg had taken controversial positions while she was with the ACLU was not material to the confirmation process. In fact, Senator Orrin Hatch recommended Ginsburg to President Clinton for the vacancy due to her qualifications, putting aside his ideological disagreements with her. During her nomination hearing before the Judiciary Committee, no senators tried to use her past with the ACLU against her. It’s hard to imagine today, but Ginsburg was confirmed nearly unanimously by the Senate (96-3), and with the support of Republican Senators Mitch McConnell and Chuck Grassley.

In her final years, Ginsburg frequently lamented the way in which the Supreme Court confirmation process had deteriorated since her own confirmation. Ginsburg compared her own confirmation process to that of now-Justice Brett Kavanaugh at an address at George Washington University Law School on September 12, 2018:

The way it was, was right. The way it is, is wrong. The atmosphere in ‘93 was truly bipartisan. The vote on my confirmation was 96 to 3—even though I had spent about 10 years of my life litigating cases under the auspices of the ACLU and I was on the ACLU board and one of their general counsels. . . . I wish I could wave a magic wand and have it go back to the way it was.

She said that days before the already hyperpoliticized attacks on Kavanaugh reached a new low in ugliness for the SCOTUS nomination process.

Ginsburg owed her own bipartisan confirmation to the notion that a nominee’s ideological views should not eclipse her qualifications in the nomination process. At a talk at Duke University in 2019, Ginsburg said that rather than “trying to figure out how the nominee will vote on the Court,” the right question for the Senate Judiciary Committee is instead, “Does this person have the qualities it takes to be a good judge?” In that same speech, Ginsburg expressed optimism that one day “there will be patriots on both sides of the aisle who say, ‘Enough of this dysfunctional government. We will get together and try to do the business that a national legislature should do.’”

Perhaps this is the best way we can honor Justice Ginsburg and her legacy—by returning to the way Supreme Court confirmations used to be. To reject the politicization of the courts by the Left that has turned the confirmation process into a complete circus. To return to evaluating Supreme Court nominees based on their qualifications and credentials, rather than political litmus tests.

When President Trump makes his nomination, let us hope the people demand a process that is closer to Ginsburg’s vision than to that of recent Democratic Party leadership. When it’s time for the Senate to consider whomever the president chooses, I hope it will renounce the sordid tactics of character assassination and return to the model of civilized inquiry that examines a nominee’s qualifications.

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