She could have had President Obama nominate her successor. But she didn’t get to the Supreme Court by letting other people tell her what she could do. Published in the New York Times Magazine, subscription
(The author) Emily Bazelon is a staff writer at The New York Times Magazine and is the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is also the author of the national best-seller “Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy” and a co-host of Slate’s “Political Gabfest,” a weekly podcast.
Before joining the Times Magazine, Ms. Bazelon was a writer and editor for nine years at Slate, where she co-founded the women’s section DoubleX. She has previously been a Soros media fellow and has worked as an editor and writer at Legal Affairs magazine and as a law clerk on the U.S. Court of Appeals for the 1st Circuit. She has appeared on TV shows including “The Colbert Report” and “PBS NewsHour” and radio programs including “Fresh Air,” “Morning Edition,” “All Things Considered,” “This American Life,” and “Here and Now.” Her writing has appeared in the Atlantic, Vogue, and the Washington Post, among other publications. Emily is a graduate of Yale College and Yale Law School.
Reading this article made me realize that among all her historic ground breaking accomplishments her being replaced by someone like Amy Coney Barrett or Barbara Lagoa will be included in her overall legacy. She had a way to have her seat filled by a progressive. She didn’t avail herself of it for several reasons.
Ruth Bader Ginsburg took the chance that the Republicans would play fair and not block Obama's nomination of Merrick Garland. Perhaps that was her biggest error of judgment. Like most Democrats she never thought Trump would become president. She also had no way to predict that Trump would have an opportunity to replace not one, but two Supreme Court justices.
In 2013 Emily Bazelon, the author of this NY Times Magazine article, wrote in Slate: “Stop Telling Ruth Bader Ginsburg to Retire — It’s counterproductive.”
Excerpt:
If you are a liberal who cares about the Supreme Court, you may be feeling that Justice Ruth Bader Ginsburg just slipped coal into your Christmas stocking. (If you don’t have a stocking, me neither, but ’tis the season.) At an event in Virginia on Tuesday, answering a question from former Solicitor General Ted Olson about whether Supreme Court justices should retire when the party that appointed them controls the presidency and will get to replace them, Ginsburg said, “I think one should stay as long as she can do the job.” This builds on her remark to Adam Liptak of the New York Times in August, when she made it clear that she was not timing her departure based on Barack Obama’s remaining years in office. She said then, “There will be a president after this one, and I’m hopeful that that president will be a fine president.”
In the New Republic, Marc Tracy called that hopeful comment “bizarre,” in one of several recent baffled, angry liberal rants about why Ginsburg needs to go— Right Now. These pieces started appearing two years ago, with another New Republic essay, by Harvard law professor Randall Kennedy. They all walk the same path. Hail Ginsburg for her distinguished service. But she is old (at this point, 80). She had cancer a while back. If she cares about her legacy, she should want a Democratic president to appoint her successor. This isn’t “illicit politicization of the Court,” Kennedy argued. “It is simply a plea for realism.”
Her quote to Elle in a 2014 interview “anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided” is true in the sense that nobody would be like her, however I find it disquietingly (dare I say) vain.
ELLE: I'm not sure how to ask this, but a lot of people who admire and respect you wonder if you'll resign while President Obama is in office.
RBG: Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they're misguided. As long as I can do the job full steam…. I think I'll recognize when the time comes that I can't any longer. But now I can. I wasn’t slowed down at all last year in my production of opinions.
(Elle added a new introduction to this article)
Editor's Note: On Friday September 18th, Supreme Court Justice Ruth Bader Ginsburg passed away from complications of metastatic pancreatic cancer. The trailblazing cultural, legal, and feminist icon had been on the Supreme Court since 1993, when she was appointed by President Bill Clinton. She became the second female justice on the bench. According to NPR, in the days leading up to her death she dictated a statement to her granddaughter Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”
Now, with the wisdom of hindsight, Bazelon writes in The NY Times Magazine:
To some liberals, the answer seemed straightforward. Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, wrote an op-ed for The Los Angeles Times in March 2014 urging Ginsburg to step down. “I feared the Republicans would retake the Senate in November 2014, and it seemed so unknown what would happen with the presidential election in 2016,” he told me recently. “If she wanted someone with her values to fill her seat, the best assurance was to leave when there was a Democratic president and Senate. Obama could have gotten anyone he wanted confirmed at that point.” Ginsburg’s decision to stay “was a gamble.”
Bazelon concludes:
Ginsburg almost gutted out President Trump’s first term as she had so many other challenges. But now a man she improvidently called a “faker” will try to choose her successor. By putting a conservative woman in Ginsburg’s seat, as he has promised, Trump will fulfill her call to amplify women’s voices on the court. But he’s also likely to solidify a majority that could unravel parts of her life’s work as the court shifts significantly to the right.
There is one way that Ginsburg could still be influential. As R.B.G., she made the court come alive for liberals who have traditionally cared less about it than conservatives. In a September poll by the Pew Research Center, 66 percent of Democrats and 61 percent of Republicans named “Supreme Court appointments” as “very important,” almost the mirror image of a poll from the summer of 2016 (which showed Trump supporters 8 points more likely than Hillary Clinton supporters to ranking the court as very important). Maybe the left’s rising appreciation of the stakes will motivate Democratic voters in November and add fuel to calls for expanding the number of justices, which have already begun.
What would Ginsburg have made of that legacy if it comes to pass? She was an institutionalist. But she was also, in her understated way, a revolutionary.
Now it looks like Trump will appoint one of two women to the court who are so far to the right they make his other appointments, Gorsuch and Kavanaugh look liberal. One of them, the supposed front runner, is Amy Coney Barrett about whom Trump said "I'm saving her for Ginsburg," when he nominated Brett Kavanaugh to replace former Justice Anthony Kennedy in 2018, according to Axios.
Salon tells us that according to The NY Times she and her husband beplog to a group that describes itself as a "charismatic Christian community." The "heads and handmaids give direction on important decisions, including whom to date or marry, where to live, whether to take a job or buy a home and how to raise children."
It appears that she would be in favor of overturning Roe v. Wade.
Both Barrett and the other front runner is Barbara Lagoa. It’s been reported that:
Lagoa could help Trump win votes in Florida. Lagoa, the first Hispanic woman to serve on the Florida Supreme Court, is a Cuban-American and Florida native. The analysts at Capital Alpha Partners wrote that picking Lagoa could “upend the presidential race,” as naming her to the highest court could mobilize Florida’s Hispanic community behind Trump, and perhaps even Hispanic voters across the country. Meanwhile, Biden’s polling among Hispanic voters is behind where Hillary Clinton’s was at this time in 2016, hitting one of the Democratic candidate’s weak points. What’s more, Lagoa would be a historic pick: only the second Latina justice to serve on the Supreme Court, following Obama pick Sotomayor. “The president wants a conservative jurist, and he wants to win the biggest battleground. How do Democrats in the Senate vote against a Latina?” a Republican source told Politico.
The Florida Sun Sentinal notes that her record doesn't shed a clear light on how she would vote on cases that could overturn Roe v. Wade. Her background suggests to me that she is more likely to vote to continue to vote on ways to drastically erode access to abortion short of repealing Roe.
In response to questions from the U.S. Senate, Lagoa wrote that she would honor the precedent set by Roe v. Wade, the landmark 1973 decision that established a nationwide right to abortion.
“For lower court judges, all Supreme Court precedent, including Roe v. Wade ... is settled law,” she wrote. “If confirmed, I would faithfully apply this precedent and all other precedents of the Supreme Court.”
Her tenure as judge included judge playing a role in decisions limiting felon voting rights and blocking Miami Beach’s efforts to raise the city’s minimum wage. She voted to uphold a state law that required Floridians with felony convictions to pay off all their fines and fees before they can vote in elections.
Trump will most likely make his decision based primarily of election politics hoping that nominating Lagoa will help him win Florida and perhaps some Hispanic votes, or nominate Barrett because he is personally more comfortable with her. She may have already “sold herself” to him already by being duly subservient to him by expressing the handmaid persona he likes in his women.
Update:
Trump has preference for selecting people who look like they came from a call to central casting to send me someone who looks like a Supreme Court justice. With a woman, clearly Barrett fits the female Fox News personality image more than Lagoa.
I don’t want to play the prediction game although if you want to go ahead and take the poll.
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