Supreme Court

Justice Ginsburg on Justices Gorsuch and Kavanaugh

The Notorious RBG seems to like her newest colleagues.

|The Volokh Conspiracy |

The Washington Post's Robert Barnes reports on recent remarks by Justice Ruth Bader Ginsburg during her annual "conversation" with Duke Law's Neil Seigel. The discussion covered quite a bit of ground, including some of the Court's more contentious decisions. This bit about the newest justices caught my eye:

Siegel noted that President Gerald Ford had said he had looked for the best legal mind in the country before selecting Stevens in 1975. He suggested that may not be the criterion for more recent court nominations.

But Ginsburg pushed back gently. "I can say that my two newest colleagues are very decent and very smart individuals," she said, referring to Trump's choices of Justices Neil M. Gorsuch and Brett M. Kavanaugh.

Later, she invoked the pair when saying "there are a number of cases this term where we didn't divide along so-called party lines."

"Keen observers of what the court does will have noticed that I assigned an opinion this term to Justice Kavanaugh and two to Justice Gorsuch." The chance to assign majority opinions is dictated by seniority, so Ginsburg has the power only when Roberts and the court's longest-serving justice, Clarence Thomas, are on the other side.

Barnes also reports that Justice Ginsburg made no comment on the sexual assault allegations that arose during the Kavanaugh confirmation hearings, but did note (as she has before) that Justice Kavanaugh "made history" by being the first justice to hire all female clerks for a single term. As a consequence, Barnes notes, this past term was the first time ever there were more female clerks than male clerks at the Court.

UPDATE: The full video of Justice Ginsburg's remarks is available here.

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  1. Jim Bunning could not be reached for comment?

  2. Hmm. Could that suggest that RBG didn’t necessarily believe the allegations made against Kavanaugh?

    1. Could it be that this bette noir of conservatives isn’t the blind bad-faith partisan everyone takes her for as they openly wish for her death?

      1. She has her good points, any friend of Scalia’s is ok in my book. But there are a few problematic things, most notably her comments about Trump. If she wants to be above the political hurly burly then she should stay out of the political arena.

        But I think all of the justices think the that the politicians and the press have tried to inject too much politics into the judge selection process and decision making to the detriment of the court. We’ve been lucky that the judges we’ve gotten haven’t been as political as the process.

        1. I know people have short memories but before we join Sarky and the MSM in hailing this great act of bipartisanship by Ginsborg, remember its pretty hard to throw peanuts at a formidable person who you’ll be working with closely for the rest of your professional career.

          Before on the other hand…I don’t recall any support of Kavanaugh and actually some leading comments on MeToo. Pretty snakelike if you ask me.

          1. I’m not saying it’s bipartisan, I’m saying it’s not so partisan as your usual cartoonist version of Ginsberg would seem to allow.

            That you’ve just declared it an exception and then call her a snake for not being as partisan as you are is depressingly predictable.

            1. So not the strawman version of your opponents statements. Stay consistent.

        2. “But I think all of the justices think the that the politicians and the press have tried to inject too much politics into the judge selection process and decision making to the detriment of the court. ”

          This is a completely true statement.

      2. While I will admit looking forward to Ginsburg’s seat becoming vacant, I do not wish for her death; rather, I wish the leftists would let her retire and live out her remaining years in peace.

        1. Ginsberg has proven quite immune to partisan pressure – everyone wanted her to retire under President Obama and she told them to get stuffed.

          Her career is very much her own.

        2. Another benefit of Supreme Court enlargement — no need to disturb the extant justices.

      3. “Could it be that this bette noir of conservatives isn’t the blind bad-faith partisan everyone takes her for as they openly wish for her death?”

        “Could it be that this bette noir of conservatives isn’t the blind bad-faith partisan everyone takes her for as they openly wish for her death?”

        You mean a bad-faith partisan like the folks who purported to believe the obviously bullshit allegations? That’s a distinct possibility.

        1. Maybe, just maybe, your personal judgement doesn’t control what’s obviously BS.

          1. Neither does yours.

            1. But Sarcastro isn’t accusing TIP of bad faith.

        2. “You mean a bad-faith partisan like the folks who purported to believe the obviously bullshit allegations?”

          Everyone who disagrees with me is arguing in bad faith! Bad faith bad faith bad faith!

  3. “Hiring all female clerks”…I am going to assume they got their positions via merit, but this is suspect. I’m sure the peanut gallery though will applaud this as “progress” but tell that to the men who were probably outright discriminated against who won’t have as much of a career because they didn’t get a supreme court clerkship due to discrimination.

    1. Funny with all this discrimination that men are doing okay in elite legal circles.

      What about Justices that have all or predominantly male clerks?

      1. It is funny when liberals laugh about some kinds of discrimination but then gnash teeth and wring hands about the other kinds….

        1. Here’s how I make the distinction: white men continue to do great, so I don’t care nearly as much.

          1. And this is why people call him Sarcastrated.

            1. If so, it is because clingers lack the self-awareness that would be needed to recognize that it is conservatives — who must spend their lives complying obsequiously with rules established by the liberal-libertarian winners of the culture war — who evoke the eunuch label.

              Carry on, clingers. Toeing the lines established by others, of course.

          2. Thank you for the communist view. That is, the rights of the individual do not matter. Only the rights of the collective matter.

            1. Communist? LOL

          3. “white men continue to do great, so I don’t care nearly as much.”

            That’s racist.

            1. No more so than asking about the gender mix of a Justice’s clerks.

          4. Yes, your morals are awful yet you continue attempting to value signal.

            1. I don’t know what you’re signaling, Jesse, but it ain’t morals.

      2. Well, according to the American Bar Association’s National Lawyer Population Survey, about two thirds of all lawyers are male, and 85% white – a trend that has been steady for a few decades now.

        Most justices hire 30%-40% female clerks over their tenure, which means 1-2 at any given time. This is close to the overall population of lawyers in the US, with no statistically significant difference.

        Hiring three females in a row and claiming they were hired purely on merit is not unlikely. Hiring four females is statistically abnormal, but not too much so. Hiring five or more female clerks in a row while claiming to be hiring purely by merit is statistically unlikely, and the person is probably lying. But only probably.
        For men, the numbers equivalent are likely up to 7, and not likely to be lying until 12 males have been hired consecutively.

        This assumes that lawyer quality is identically distributed between sexes. So unless you want to claim one sex makes “better lawyers” than the other…?

        1. I encourage you to be careful, Toranth, with this talk of statistical analysis.

          The Volokh Conspiracy surely doesn’t want anyone calculating or mentioning statistic probabilities concerning the white-and-male percentage of Conspiracy posts.

          Another comment such as that one might attract the attention of the Volokh Conspiracy Board Of Censors.

          1. There is a 100% chance that Cuckland is an idiot and zero probability that he will ever say anything of substance. How is that for statistics?

            1. Thing is, you’re not that far off from Art’s numbers.

        2. “Well, according to the American Bar Association’s National Lawyer Population Survey, about two thirds of all lawyers are male, and 85% white – a trend that has been steady for a few decades now.”

          Law clerks aren’t lawyers… a clerkship typically comes just after earning a law degree and before sitting for a bar exam. Last year, 52% of law students were women.

          1. In peril of my soul, I’m going to have to agree with Mr Pollock here.

            If you pay attention to the evidence of psychometric tests, while men have a small advantage over women at spatial rotation (which may contribute to their overrepresentation in some STEM fields) women have a small advantage in verbal reasoning and vocabulary. Easing out to the extreme right of the distribution, starting with a roughly 50-50 sex balance across law students generally, it wouldn’t be at surprising to find a 60-40 female / male advantage in the top 5% of law students. (Assuming as I do that verbal reasoning is useful for success as a law student.) At those odds, roughly 1 SCOTUS Justice in 12 would be expected to have an all female bench of five clerks.

            However it would be very surprising to see those sort of odds persisting all the way up from law clerk to SCOTUS Justice.

            Because the overwhelming pattern in any prestigious well paid job is that time thins the ranks of females much quicker than it does males. Although there are, amongst the competent, some very ambitious, driven females, they are few compared to the men. (And even among men, insane commitment to career advancement is rare, because it tends to preclude…a life.)

            Thus, while the non-ridiculous hours sections of the legal profession are quite well suited to fair competition between men and women, you’d still expect more men at the top, even if women were in the majority flowing in at the bottom. No doubt the current imbalance at the top also reflects legacy sexism, but though the size of the imbalance may reduce with waning sexism, don’t expect it to disappear, absent formal government quotas.

            1. I think your assumption here is somewhat compromised by the known fact that men have a greater statistical variance than women, a fact which is usually attributed to women having two copies of chromosome X, and men just one.

              So that all traits influenced by genes only found on chromosome X vary more in men than women.

              This doesn’t really mean a lot for tasks that require only normal performance, if anything it provides women with a statistical advantage, because the center of the male bell curve is relatively depleted, and both tails “fat”. Including the left tail!

              But when you get into jobs that require people who are two or three standard deviations to the right of center, men are over-represented. (Just as they are among stupid people, of course!)

              I believe women are starting to be over-represented in the professions because they are subject to an intense effort at recruitment, while men are disadvantaged in an educational system now run by women.

              But, anyway, it is noteworthy how an all woman clerkship seems to be viewed as a good thing, rather than just nakedly a product of discrimination.

              1. I think your assumption here is somewhat compromised by the known fact that men have a greater statistical variance than women

                True.

                a fact which is usually attributed to women having two copies of chromosome X, and men just one.

                More speculative, given X inactivation.

                But when you get into jobs that require people who are two or three standard deviations to the right of center, men are over-represented.

                Sure, but that obviously depends on the sex differences of the mean and SD for the trait in question. But this consideration provides a further possible explanation for why women might outnumber men in the top 15% for verbal reasoning (say law students) but maybe not in the top 1% (SCOTUS Justices.)

                Though anyone who has read a Judgement by Justice Kennedy will be doubting that being in the top 1% for verbal reasoning is a requirement for the job.

                1. This doesn’t work for lawyers though, because while there may be more women in the top 15% of all people, lawyers themselves are already in the top 15%, and potential Supreme Court candidates are the top 10% of those, so you’re only looking at a potential top 1.5% of the population as a whole. At that point you’re so far out in the right side of the distribution that the higher male standard deviation has taken over.

                  Of course, I don’t have the right statistics to seen if this over or underestimates the actual ranges. Does anyone have the actual figures?

              2. Really smart people don’t become lawyers.

          2. Again, according to ABA surveys, 90% of graduates take the bar exam the year they graduate.
            A quick look at the list of clerks shows the all have been out of school for at least 2 years – to as many as 9 years (one of Kavanaugh’s clerks graduated in 2010!).

            While it is possible that Supreme Court clerks all fall into the range of law school graduates that don’t take a Bar exam the first year, or the second, or the third, and so on, it seems unlikely unless there is some special external factor preventing it from happening that doesn’t apply to other clerks.

            It’s odd – I can find ABA data for law school enrollment, and bar passage rates… but nothing at all about graduation rate grades and demographics.

            While I was wrong to assume that law clerks had passed a Bar (and thus counted in ABA’s “lawyers”), you are equally wrong to consider the population of people enrolling in law school as identical as well. Unless you have studies proving otherwise, of course.

            Given the lack of data, it seems unlikely that a definitive answer could be found.

            1. Huh. I kept trying to find more data, and it just gets weirder. It isn’t actually relevant to the discussion at all, but this is not what I expected.

              The ABA’s reported numbers for new lawyers by sex and the reports for total lawyers by sex don’t match up.
              You’d expect that if roughly 50% of Bar passing graduates are female, the total population of 2/3 male to 1/3 female would swing towards equal proportions. And it does… but not at the expected rate. Based on the last 10 years of ABA data, the proportion should be about 55/45 by this time. But according to the ABA, it’s only shifted about 3-4 points.

              I don’t have any data as to why, but my first guess would be that for some reason female lawyers are retiring at a much faster pace than males, even in their 20s and 30s. That’d be odd, in comparison to other professional industries.

              1. Historically something like 50% of people with JD degrees don’t practice law professionally. Some of those are people who never practice, some are those who never manage to get hired by a law firm, some are people who get licensed, practice briefly, and decide that the practice of law doesn’t suit them and abandon the field for another line of work, and some of them hold jobs related to practice, but which do not require professional licensure (such as teaching law).

                The Great Recession threw a great skew into the historical trend. The number of jobs for working lawyers contracted substantially, pushing out junior associates and new graduates, and then ultimately reducing the number of new law students studying to enter the fiend.

                1. Historically something like 50% of people with JD degrees don’t practice law professionally.

                  And do you have that broken down by sex 🙂

                  My modestly sized circle of acquaintances includes no fewer than three people with (good) law degrees who neither practice law professionally, nor have ever done a day’s paid work in their lives. I believe they all identify as female.

            2. “A quick look at the list of clerks shows the all have been out of school for at least 2 years”

              You have a list of all law clerks?

              “you are equally wrong to consider the population of people enrolling in law school as identical as well.”

              huhwut? Where (and HOW?) are you seeing me state that everyone who enrolls in a law school is identical?

              The source of the only statistic I offered is this document:
              https://www.aals.org/wp-content/uploads/2019/02/1901LegalEducationataGlance.pdf

              1. Wikipedia has a list of all Supreme Court clerks, which are the clerks in the discussion at hand. I used that (and it matched several other lists I found for specific years).

                You suggested that the population of students entering law school should be identical to the population of potential clerks. I think you misunderstood – the subject in my paragraph was “population”. At no point was I discussing individuals. This is statistics; individuals don’t matter.

                1. “Wikipedia has a list of all Supreme Court clerks, which are the clerks in the discussion at hand.”

                  I don’t recall limiting anything to just Supreme Court clerks. Are you sure those are the only clerks in the discussion at hand?

                  “You suggested that the population of students entering law school should be identical to the population of potential clerks.”

                  I did what now? Where did I do this?

                  “I think you misunderstood”

                  I think you phrased poorly. If you meant to compare one population to another population, then there should be two populations in your sentence. There’s only one.

      3. antifemale discrimination is 99% cloak and dagger, by shadowy unseen good ole boys clubs, he said she said with the only objective evidence being gender ratios. Antimale discrimination is proudly and openly announced on social media, and on the names of institutes, laws, and initiatives.

        At the same time the former is undeniably proven to its full extent and the latter vanishes to mere myth when you ask progs to compare the two.

        1. You sure do feel oppressed. And yet I, in the same demographic position, don’t. Almost as though your victimhood is some internal choice you’re making and don’t need to.

          In your caterwauling about shifts in the momentum of your demographic, you’ve neglected to notice your continued good position.

          1. I don’t remember Sappho moaning about no free tampons, but according to the left its still a big problem. Across the world throughout history there were very few if any women complaining about the lack of affirmative consent where the man should ask every 2 minutes whether he should continue sex otherwise he’s a rapist up until a few years ago yet if you ask some circles its one of the biggest injustices facing society today. Just because a few (self hating in lib parlance) people in oppressed groups don’t recognize their oppression doesn’t mean it doesn’t exist.

            1. You’re appealing to history for what equality for women should look like?!

              Again, you’re mistaking momentum for position.

        2. If you’re afraid of competition, you recoil in fear at anything that suggests helping your competitors and you scoff at any claim that your competitors have worse results for any reason other than your own merit.
          You think people can’t see your insecurity, but they can.

          1. In an rational world, the group claiming discrimination has the onus to prove it beyond a reasonable doubt. Automatically jumping to the conclusion that all sex imbalances (against women) are the result of antifemale bias is not proof.

            If you’re going to give females a leg up at the very least just plainly say so, don’t feed me an ever growing line of bs about how more and more terrible females have it as they accumulate more and more privileges. I have to laugh when I see articles about how terrible it is for women that they have longer life spans and how women are oppressed all the time at college even though they make up the majority.

            1. “In an rational world, the group claiming discrimination has the onus to prove it beyond a reasonable doubt”

              That’s remarkably stupid. In a rational world, a group claiming discrimination points to evidence of discrimination, and people make up their own minds, with the burden of proof varying from observer to observer.

              “Beyond a reasonable doubt” is for criminal courts.

    2. Truth is, the majority of law students are female, so it’s not a huge surprise that a majority of SC clerkships went to females.

    3. How many clerks does he have? 4 or 5? It’s ridiculous to think he can’t find 5 way over qualified female candidates.

      But I do wonder why he thinks it’s necessary to hire all female clerks, is it because the top 5 candidates were all female? Possible but not probable. Because he has daughters and wants to inspire them? Maybe. Because he’ll get brownie points from the left? Nice try, but that will be the day.

      1. He wants to drug and rape them all. The drugs will make them forget the incidents so they won’t sue. If they show signs of remembering, they’ll be buried next to Jimmy Hoffa.

        1. …which will be fairly difficult to do discreetly given how busy the New Jersey Turnpike is even at night. But he’ll hire gravedigger-ninjas who will know how to avoid attention.

    4. So for the first time ever a majority of the clerks are women, and you’re upset about sex discrimination.

      Were you upset about it during the time – all of it until now – when the majority, or even all, were men? No. Didn’t bother you one bit.

      Spare us your BS concerns about equality.

    5. Did you read this part?

      “…this past term was the first time ever there were more female clerks than male clerks at the Court.”

      So does that mean the Court was discriminating against women until this year, when it switched to discriminating against men?

  4. …but did note (as she has before) that Justice Kavanaugh “made history” by being the first justice to hire all female clerks for a single term.

    So, the “on the basis of sex” chick applauds THIS discrimination on the basis of sex. Glad to see she is a hypocrite to the end — as she nears her oh so richly deserved reward, I would expect no less.

    1. “So, the “on the basis of sex” chick applauds THIS discrimination on the basis of sex”

      You seem to have gone from premise to conclusion without any intervening steps. First, you need to establish that there was any discrimination on the basis of sex, THEN you can crow about the discrimination based on sex. It’s kind of traditional to stick with that order.

      1. White guy hires five other white guys for lucrative, prestigious position that guarantees a big law firm will pick them up and pay them hundreds of thousands of dollars. Responses from the peanut gallery:

        “White guy couldn’t find one qualified black.”
        “White guy must hate women.”
        “White guy hires five other white guys….yeah must be discrimination.”

        White guy hires five politically favored members of identity politics. Peanut gallery responds:

        “Historic!”
        “Advancement!”
        “New Wave!”

        No hypocrisy here….

        1. YOur hypothetical isn’t doesn’t have much to say.

          Try mine instead. White guy hires five most-qualified candidates, regardless of identity politics..

          Peanut gallery responds with (sound of crickets chirping).

          See, the thing is, nobody whose opinion matters complains when things go to those who deserve them.

    2. Another one with a newfound horror at sex discrimination.

      You guys are astonishing.

      1. “Another one with a newfound horror at sex discrimination.”

        Assumes facts not in evidence.

        Proof?

        Because surely I want my wife, mother, sister, friends, nieces and that hot chick down the street to be discriminated against.

  5. “Siegel noted that President Gerald Ford had said he had looked for the best legal mind in the country before selecting Stevens in 1975.”

    I’m not sure that was a very thorough search.

    1. Wait, I just saw how the sentence was written. He looked for the best legal mind in the country. Then he selected Stevens. Those were two different actions.

    2. Anyway, is Prof. Siegel suggesting that the best legal mind in the country in 1975 was a White Anglo-Saxon Protestant (WASP)?

      And isn’t it a curious coincidence that the search for most qualified candidate happened to turn up not just a WASP, but one of the WASPiest Midwestern WASPS it is possible to conceive of?

      And Ford was…heh, he was a Midwestern WASP, too. Wow, that must have been one extensive, wide-ranging search.

  6. So she’s a Kavanaugh supporter . . . maybe she’s a Russian traitor.

  7. She likes Kavanaugh. Nadler, start the impeachment investigation.

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