Ruth Bader Ginsburg Is Wrong

Sorry stans, but ya girl is wrong on this one. 

(Photo by Joanne Rathe/The Boston Globe via Getty Images)

Listen, as a self-respecting white girl lawyer I enjoy the judicial stylings of Ruth Bader Ginsburg as much as anyone. I own a tRuth t-shirt, I bought the I Dissent book for my nieces, I DVR’d the RBG documentary… but that doesn’t mean she’s infallible. Indeed, I’ve been pretty clear that unwavering, sycophantic adoration of federal judges is problematic, as it can stifle important criticism. So here I am, about to call out a hero.

Last night at a gathering of the National Asian Pacific American Bar Association, Ginsburg opined about the changes in the Supreme Court confirmation processes, referring to the partisan tenor of the Brett Kavanaugh hearings as “wrong” and longing for “the way it was.” As reported by Law.com:

Ginsburg called her 1993 confirmation process “truly bipartisan,” noting that while her White House handlers fretted about how her 10 years of litigation work for the American Civil Liberties Union would be received, “not a single senator” grilled her about the civil liberties organization. She was confirmed on a 96-3 vote.

“That’s the way it should be instead of what it’s become: a highly partisan show with the Republicans moving lockstep. So do the Democrats,” Ginsburg said from on stage at The George Washington University Law School. “I wish I could wave a magic wand and have it go back to the way it was.”

First of all, bipartisanship is overrated. Barack Obama’s desire for it only led to a watered down version of a healthcare bill that Republicans still opposed simply because it was his legislative crowning achievement. And the GOP has banked so far to the right with literal Nazis finding solace in the party that the Overton window of what is considered moderate is far more conservative than Republicans of the past.

Also, the Supreme Court itself — perhaps merely as a reflection of the times we live in — has become a plainly political branch. Gone are the days of a unanimous Brown v. Board decision where the justices put their differences aside for the better of the country. Hell, these days we can’t even get judicial nominees to answer a question about Brown. Replacing that is the naked partisanship of Bush v. Gore, where five Republican justices decided the Republican should be president and divorced that decision from all legal precedent moving forward. Perhaps RBG shouldn’t long for the time when the judicial confirmation process was non-partisan, but for a time when the Court was.

Spending time wistfully idealizing “the way it was” is a dangerous hobby. It runs too high a risk of becoming mired in remembrances while ignoring the harsh realities of right now. As Democrats yearn for the Court to become non-partisan, the GOP has already upped their political game. Observers may call the stonewalling of Merrick Garland “unprecedented” (well, ’cause it was), but it will only be the opening act. Right now, the Republicans are getting ready to ram a Supreme Court justice down the country’s throat despite an investigative matter being referred to the FBI, but none of that is likely to matter after Justice Kavanaugh has been sworn in.

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There’s also the deleterious effects Kavanaugh’s reign on the Supreme Court is likely to have on the civil liberties of a lot of people. He refers to birth control as “abortion inducing drugs.” That’s a terrifying statement and I will oppose his appointment to the bench with everything I have, and I’m glad that I have representatives in Congress who have the same priorities. This past Term alone, the Court has hacked away at unionsvoting rightsgay rights, and reproductive choice — another reliable conservative vote is only going to make it all worse. It isn’t some breach of bipartisan decorum to stand against a potential Supreme Court justice who you believe will erode the hard-fought rights you have.

I really thought Ruth would understand that.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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