Supreme Court

Justice Ginsburg Speaks Sensibly about Judicial Confirmations

The Notorious RBG counsels against ideological litmus tests for judicial nominees.

|The Volokh Conspiracy |

Speaking at the University of Chicago, Justice Ruth Bader Ginsburg lamented the current politicized and polarized approach to judicial confirmations.

During the hourlong event, Ginsburg also lamented the increasingly partisan nature of Supreme Court confirmations, in which senators vote mostly along party lines.

She noted in particular the confirmations of Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan. Nominated by President George W. Bush in 2005, Roberts was confirmed with a 78-22 vote. Sotomayor and Kagan—nominated by President Barack Obama in 2009 and 2010, respectively—each received fewer than 70 affirmative votes.

"We really should get back to the way it was when people were examining qualifications of what it takes to be a judge, rather than trying to guess how they would vote on contentious cases," said Ginsburg, who was confirmed in 1993 with a 96-3 vote, becoming the second woman to join the nation's highest court.

The Chicago Sun-Times covered her remarks here.

Of note, when Justice Ginsburg was herself a judicial nominee, she articulated what has come to be known as the "Ginsburg Standard" of "no forecasts, no hints" on how a judge might rule from the bench:

"You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process."

Although subsequent judicial nominees have repeatedly sought to adopt this approach, Senators on the judiciary committee have been resistant, particularly with judicial nominees from the opposite side of the aisle.

Speaking of Justice Ginsburg, CNN reports on how she welcomed Justice Neil Gorsuch to the Court after his confirmation.

NEXT: Elizabeth Warren's Plans Don't Add Up

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  1. Future nominees should just memorize JBG’s comment that starts “You are well aware that I came to this proceeding to be judged as a judge, not as an advocate….” and respond to Senate questions about cases and decisions with it.

    1. That was my thought when I read this as well. But the nominee should preface their comment with “As highly respected Justice Ginsburg, whose seat I am being considered for, said…”.

      Most of the public watching the dog and pony show would not recognize the quote and the Democratic Senators know that — by pointing it out, it would disarm these Senators.

  2. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.

    Yet expectations of how a nominee will vote guide the nomination process, and I suspect that Presidents have a good idea, well beyond mere speculation, about all that.

    I also think nominees should be more forthcoming in their views of past cases. We all know they hold opinions about them. Why the secrecy?

    Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present.

    This does not seem accurate to me, at least as far as SCOTUS goes, since its decisions are binding on lower courts.

    1. – “This does not seem accurate to me, at least as far as SCOTUS goes, since its decisions are binding on lower courts.”

      ??? How in the world does SCOTUS’ binding authority render the following in any way inaccurate?:

      “Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present.”

      1. Well, let’s see.

        Was the impact of Brown limited to the single case, or did it have more widespread implications?

        Substitute whatever famous case you want.

        Lots of cases do in fact establish principles which are to be applied in similar matters.

    2. “This does not seem accurate to me, at least as far as SCOTUS goes, since its decisions are binding on lower courts.”

      Well, all judges, including appellate judges and SCOTUS judges, are supposed to simply decide the case at bar, and lower courts are supposed to decide if there is a precedent from a former case that applies to the current case. But that’s not what they do.

  3. “”We really should get back to the way it was when people were examining qualifications of what it takes to be a judge, rather than trying to guess how they would vote on contentious cases,””

    I guess everybody does long for the world of their childhood. She was born in 1933. The last time things were the way she suggests, she was a toddler.

    1. They were never the way she remembers.

      1. I think that goes a bit too far: FDR really did seriously change practice as far as the selection of federal judiciary was concerned. It wasn’t perfection before FDR, to be sure, but after him the Democrats were just relentless about selecting judges who would rule their way regardless of the merits of a case.

        He did it while she was a toddler, though, so I doubt she actually remembers any time when her dream world was even a distant approximation of reality.

        1. I think she just shares the same deluded mindset as John “There are on Obama judges or Trump judges” Roberts. They both want the vision they have for the judiciary to be reality, because if it’s not, then they’d have to admit to themselves they’re just an unelected super legislature. They don’t want to have to do that.

        2. FDR may or may not have triggered the change, but the major piece of it happened after he died.

          The (perceived?)change RGB complains of ultimately starts with public Senate committee hearings on Judicial nominations.

          The first public hearings on any presidential nomination happened in the very early 20th century. However, such hearings did not become routine for all judicial nominations until 1946, the year after FDR died in office.

          Now things may have been just as political prior to then, but it’s really impossible to judge, as prior to 1946, no part of the confirmation process happened in the view of the general public.

  4. These confirmations need to not be televised.

    Current state makes them into political theatre for the members of the committee to be able to virtue signal.

    1. “Put away my hair gel and get me my edition of the complete works of Hegel in the original German and Cicero in the original Latin – I’m going to a camera-free hearing where I can finally give my intelligence free reign!”

    2. That **might** change the hearings, but wouldn’t change the voting or other grandstanding associated with them. Senators would still fake open mindedness and then give all the talking points as to why they were voting for or against a given person. In fact, it’d probably be worse because you’d just have people arguing over what was or was not said. Either that or carefully crafting questions to look good in the transcript.

      The only way you’d probably get through it would be to have a secret ballot where senators couldn’t release their votes and we’d just know whether the outcome was pass or fail.

    3. “These confirmations need to not be televised.”

      The committee hearings, the only part of the process that gets televised, doesn’t need to happen at all.

      Prior to the 19th century, the relevant Senate committees for various nominations held no hearings at all, they didn’t even take testimony from the nominee. The committee issued a recommendation on the nomination to the full Senate, but had no say in even whether or not the full Senate held a vote on the nomination.

      Committee hearings on Presidential nominations started in the early 20th century, IIRC the very first was shortly before WWI. However, such hearings did not become routine for all judicial nominations until 1946.

  5. Of course she liked a system that results in poor GOP nominees (Souter, Kennedy, Roberts ad nauseam).

    1. That same system produced Byron White and Felix Frankfurter as nominees of Democratic presidents, Bob.

  6. Please stop with the “Notorious RBG” nonsense professor.

      1. Based on the rapper Notorious B. I. G., one of whose nastiest raps is her:

        https://www.youtube.com/watch?v=dQw4w9WgXcQ

  7. Hey, Great website basically a heads up that I was getting instantly sent straight to the homepage if I viewed this internal web page; It looked like a web browser hi-jack or something, https://imaphotic.com/ I’m not too absolutely certain but imagined you might be informed about it. Take care

  8. “We really should get back to the way it was when people were examining qualifications of what it takes to be a judge, rather than trying to guess how they would vote on contentious cases,”

    The best way to get there would be to have fewer high-states contentious cases. Which isn’t going to happen as long as the government (at all levels) wants to have it’s fingers in every pie.

    1. I would make a different claim. I think the Supreme Court has increased in importance in part because of gridlock and the lack of bipartisanship in the other branches. That makes the Court the only place where either side can rack up “wins”, except in the rare instance of a President, majority in the House, and 60 votes in the Senate.

      1. But complaining of gridlock makes no sense apart from the assumption that legislation SHOULD be passed. I tend to think that all the stuff we can easily agree on is out of the way, and that’s why it’s hard to pass new laws: The only stuff left is the stuff we fundamentally disagree about.

        1. the assumption that legislation SHOULD be passed.

          Passed, repealed, amended, brought up to date to deal with new problems, etc.

          And some more or less needs to be passed, like appropriations, or dealing with the debt ceiling – a good example of something that a sensible legislature would repeal in two minutes.

          Not passing legislation is not a neutral stance.

      2. I would argue that the lack of bipartisanship and resulting gridlock in Congress (you can’t get gridlock in the executive) ultimately stems from the same cause, the increasing size and scope of the Federal government ultimately increases what’s at stake for everyone in everything the federal government does.

    2. Another thing that would help would be a return to the political question doctrine.

  9. it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide

    Maybe. Probably. But why wouldn’t it be reasonable to ask how one would have decided a prior case? Or how one would have voted? Or what the limits of stare decisis are? Or what precedents are currently unworthy of stare decisis?

    This whole idea that a judge is just a fair arbiter, and their principles don’t matter, is simply ludicrous. You can be entire fair and be capable of evaluate the case at hand on its merits and have principles I entirely disagree with.

  10. As her ex-rectum decisions are a good part of the reason why we are in this mess, I’ll assume this is a lie.

    I assume she just wants the opposing side to just lie down

    1. ‘I disagree with her so hard I can’t believe she’d say anything I would agree with – she must be lying!’

      She’s not nearly as hateful as you would like to think. She has a long history of camaraderie with her conservative colleagues.

      1. Which does NOT change the fact that the court has become an unelected super legislature, usurping power and turning themselves into political/gods.

        FUCK the bitch

        1. The subject change from your cartoonish view of one Justice to generalized issues with judiciary generally seems tellingly off-point.

          Just because you’re really angry doesn’t give you license to make stuff up and not care that it’s untrue.

          1. Nothing I said was untrue — the judiciary was to be the weakest of the 3 branches. If the Democrats could get their ideas passed they would, but they can’t. The hearings would not be contentious if the stakes for the left were not so high.

            The Democrats started this mess and the warfare came out in the open with Bork.

            That the GOP is weak and is largely afraid to fight is neither here nor there …

            1. You are assuming Justice Ginsberg is lying and actually hates the other side. That’s demonstrably BS. Whatever beef you have with the judiciary or war you want to create out of policy does not change that your assumption turns out to be demonstrably BS.

              As to your Rush Limbaugh judiciary fulminating playbook, the standard ‘the judiciary is super liberal’ doesn’t fly anymore anyhow. Your Bork talking point is undermined by how crazy and authoritarian Bork turned out after his nomination failed (and his high-handed manner during the confirmation itself).

              The judiciary has always been important – there have been powerful sweeping cases since Marbury. Like education, the media, the Deep State, etc. etc. this is the usual conservative railing against all institutions that are not wholly their own.

              That you turn that into a personal rage against someone you don’t know is also standard, and also tiresome.

              1. Ginsburg’s rape of the constitution and immorality is what I object to, neither is it personal or partisan. It is not “hatred” I object to — I cannot read her heart and I defer to God to judge that. It is her disrespect of the people in that she overrules the people, the constitution and the rule of law with HER personal “morality.”

                Bork (like Ginsburg herself) should have been confirmed because they were appointed by the winning presidential candidate and were within the mainstream of judicial thought and were both qualified intellectually.

                I oppose Bork’s judicial reasoning — he is in the John Roberts vein — majoritarian fools. The zeitgeist is NOT moral — no constitutional decision is to be carved in stone until we get it right.

                Cut the crap — their is NOTHING more authoritarian than Ginsburg’s defending the slaughter of children in the womb to ensure the “wrong” ones are not born – her stated position!!!!!

                Whether Marbury was wrong depends upon if the founders left a loophole for tyranny or the people demanded one.

                Democracy is, after all, 2 wolves and 1 sheep voting on what to eat for dinner.

                1. I’ll assume this is a lie.

                  I assume she just wants the opposing side to just lie down

                  Your melodramatic rape of the constitution wankery does not mean the above is not you making things up, is the point.

                  Bork is not a majoritarian fool. He wanted to gut the First Amendment.

                  Your abortion whinging is the usual prideful impotence I see from your lot. Abortion doesn’t justify you being a partisan rage-blister. Which you are not always, but I guess have gone full on for this thread.

                  Marbury’s correctness is beside the point – the point is it was a powerful and sweeping decision which puts the lie to your ‘Ginsberg was part of why the Court is tyrants’ unless it’s all Roe to you, in which case your case is all emotion and not history or fact.

                  The Court is a bullwark against tyranny of the majority, if only you’d quit mainlining partisanship and see it.

                  1. That “Marbury’s correctness is beside the point” IS THE FUCKING POINT!

                    The court IS tyranny, From Dredd Scott, to Plessy to Bell, to Korematsu to Roe to Obergefell — tyrants like Ginsburg ARE the norm.

                    But then again, slavery would not have been abolished if we had not killed over 300,000 Democrats and disenfranchised most of the rest.

                    I understand why you live in an alternate reality — history ain’t your friend.

                    1. You list overruled cases (plus Roe and gay marriage) to show that the Court is tyrannical?
                      You cite the Civil War as proof that Democrats are awful?

                      Your history is as carefully curated as any Soviet comrade’s.

                  2. “Bork is not a majoritarian fool. He wanted to gut the First Amendment.”

                    In what universe is gutting the first amendment not a foolish, majoritarian thing?

                    1. Because Bork wasn’t a populist – he didn’t want to replace the First with things from the political branches, but rather a moral police state.

                      I read Slouching Towards Gomorrah while bored in law school one afternoon. Short, but eye-opening.

                      I don’t love Roberts, but he’s nothing like Roberts.

                    2. “he didn’t want to replace the First with things from the political branches, but rather a moral police state.”

                      Even in a moral police state, the majority hold a strong advantage. It’s just a different kind of majoritarianism.

                    3. I always assumed a moral police state would be more elitist than majoritarian.

                      I mean his book is railing against the corruption of the masses, with the only solution being authoritarian reforms.

                  3. As approximately 44,000,000 children have been murdered since 1973, I don’t need to go back very far — nor will I overlook the crimes of the past — 1619 IS aching after all.

                    We wanna go there — let us go there!

                    1. Your prideful assuming of what a fetus is on behalf of all Americans doesn’t
                      A) let you make things up about someone on the other side of the issue, or
                      B) Change the subject from the aforementioned you making stuff up.

                      To review: I’ll assume this is a lie.

                      I assume she just wants the opposing side to just lie down

                      This is BS, you are wrong, and your pounding on the table about abortion doesn’t change anything about that.

                    2. Sarcastro : Your prideful assuming of what a fetus is on behalf of all Americans

                      Now that is a seriously weird expression. Your objection ito DWB’s opinion is that…. it’s his own ?! It’s “prideful” to express an opinion that other folk may disagree with ? What use is a moral opinion that requires majority support ? It’s rooted in mush.

                      I have to say I have failed to notice a standard preamble to the typical Sarcastro post, donning sackcloth and ashes, humbly confessing that the opinion to be expressed may be gravely in error, not to mention offensive to listeners, before a view is hesitantly offered.

                      More typical is a brief, combative and sarcastic sally, phrased with sufficient gnomic ambiguity as to present the smallest target for a response. A bit like playing battleships. You have to guess what you’re firing at.

                      Sorry if you find that prideful.

                2. Bork would have been confirmed, except that he lost a lot of support from the right with his “inkblot” remarks. Nobody on the right likes a judge who thinks the Constitution is unreadable. That, plus he was an arrogant jerk, that didn’t help.

                  1. He also had a notoriously limited view of the First Amendment, holding, in print, that freedom of expression was limited to expression about political matters.

                    That ought to have been enough to disqualify him without any other problems.

                    I often wonder why the alleged libertarians here find that authoritarian asshole such an admirable, yet unfairly treated, figure.

                    1. I thought the speech craziness was was after, though?

        2. In addition to everything else, it’s really, really offensive that you would use a sexist epithet to describe someone who you have political disagreements with.

          1. As Ginsburg has praised Kavanaugh for openly discriminating on the basis of sex, you can take your “sexism” worries and shove ’em.

            1. Your partisanship is making you ugly, maybe lay off it a bit.

              1. Mass murder is an ugly thing — it is WELL past time to fight with the enemies weapons

                1. In Ruth Bader Ginsburg’s America …!

                2. Sexist insults are not the left’s weapons. They are yours.

                  1. Really? GTFOOHWTBS

                    I want to see a man beaten to a bloody pulp with a high-heel shoved in his mouth, like an apple in the mouth of a pig. Andrea Dworkin

                    The more famous and powerful I get the more power I have to hurt men. Sharon Stone

                    I believe that women have a capacity for understanding and compassion which man structurally does not have, does not have it because he cannot have it. He’s just incapable of it. Barbara Jordan, former Congresswoman

                    I feel that ‘man-hating’ is an honorable and viable political act, that the oppressed have a right to class-hatred against the class that is oppressing them. Robin Morgan, Ms. Magazine Editor

                    1. Yes, as an man oppressed by those quotes being reactionary about sexism you truly have the justification to go full misogyny against Justice Ginsberg.

                3. The weapon of justifying your own ugliness by looking to other people?

                  That kind of fallacious rationalization can justify anything up to and including murder.

                  1. You never admit you are wrong, do you Sarc?

                    You do not give a shit about sexism any more that you do about racism I see. When you can condemn ALL sexism (or racism for that matter, let me know.)

                    I would not consult you on sexism any more that I would Sharpton/Obama on racism or Clinton/Trump on being faithful to your wife.

                    1. 1) that is not relevant, and does not justify your making things up and deploying sexist slurs against Ginsberg.
                      2) those quotes are not the same as your ‘fuck that bitch.’ Nor do they come from the same cohort. Googling bad quotes about men doesn’t justify your actions.
                      3) Justifying your behavior based on the worst behavior on the other side is basically rationalizing being a nut. Tu quoque is a fallacy.

                      Your defenses are all ‘look a the bad liberal thing/quote.’ That’s not a defense.

                      You: ‘Ginsberg is awful. I’ll bet these nice-sounding quotes are lies because she is so awful.’
                      You: ‘Ginsberg is awful. Fuck that bitch.’
                      You: ‘It’s okay I say that because of Roe v. Wade and also feminists.’

                      Look at yourself. Is this who you want to be? I’m partisan, but somehow don’t need cover myself in bile like you’ve been doing.

                    2. Truth is the ultimate defense of slander (and whether something is slur)

                      I await your condemnation of ALL racism and ALL sexism.

                      Until then, your opinions are meaningless … like Trump criticizing Mark Sanford for cheating — our Barak Obama complaining of ANYBODY’s racism.

                      Why do you find it so hard to condemn racism???

                    3. I’ll assume this is a lie.

                      I assume she just wants the opposing side to just lie down

                      This is untrue. There is no defense to that.

                      I couldn’t sue you for saying Fuck that Bitch, but that doesn’t justify you being an angry misogynist.

                      Demanding I look at all examples of the thing I’m condemning you for is ridiculous, and not how logic works. At worst I’m a hypocrite and you’re still making things up and then doubling down on rage-sexism in a lame attempt to justify.

                    4. A bit of honesty, Sarc? Awesome!

                      *bows deeply*

                      If Ginsburg wants to lower the heat, then she could actually stick to the Constitution instead of trying to recreate it in her image. She does not … and her dissent jewelry tells me much so please, save me the defense — she is clear.

                      Along with my earlier condemnation of racism, I hereby publicly condemn ALL sexism (whether it be anti-male or anti-female). I invite you to do the same — it is liberating and, frankly, the right thing to do.

                      I submit to you the proposition that the slur is gender specific, but not sexist. Men and women are different, and annoy in different ways. While not polite, language has evolved to recognize this. And yes, while a man can be a bitch, I’m not sure a women can be a dick.

                      I would ask George Carlin, but sadly … he is not here to rule on the subject — and we are lesser for it!!!

                    5. I crap the bed.

                      “Here is a list of other people who have crapped outside of toilets. Unless you condemn all of them, you can’t judge me.’

  11. Looking at some old articles from 1993 – I think I see why she got confirmed:

    Clinton started by describing her as the Thurgood Marshall of the women’s movement, but then the article drew back a little:

    “Described by advocacy group as moderate to liberal, Ginsburg, who is married to Georgetown Law Prof. Martin Ginsburg and the mother of two grown children, will be “an able and effective architect” for consensus building of the often-divided court, Clinton said.”

    https://www.nydailynews.com/news/national/ruth-ginsburg-appointed-supreme-court-1993-article-1.2306849

  12. And here’s an article from when the Judiciary Committee unanimously endorsed her:

    “The committee session Thursday morning was not without humor.

    “After listening to Sen. Orrin Hatch, R-Utah, quote figures that showed Ginsburg voted many times with Judge Robert Bork when he served on the D.C. Circuit, Sen. Howard Metzenbaum, D-Ohio, said he was ‘almost convinced to vote against her.’

    “Metzenbaum is one of the Senate’s most fiery liberals.”

    https://www.upi.com/Archives/1993/07/29/Ginsburg-unanimously-approved-by-Senate-panel/9435743918400/

  13. A follow-up UPI article when she was confirmed:

    “Ginsburg’s confirmation hearings were marked by a collegial atmosphere that was notably absent from the emotional and hostile theater surrounding the hearings of Clarence Thomas, who was alleged to have harassed his assistant, Anita Hill.

    “The confirmation hearings of Ginsburg, regarded as a centrist, lasted less than a week, during which few if any fireworks were apparent from the committee, which had changed its complexion since the Thomas hearings.”

    https://www.upi.com/Archives/1993/08/03/Senate-confirms-Ginsburg-as-Supreme-Court-justice/6356744350400/

    1. Ginsburg, regarded as a centrist

      Good spot. Another little reminder for right leaning folk that “respected on both sides of the aisle” and “a bipartisan candidate” and “a Republican that Democrats are willing to work with” means “fully paid up Swamp creature.”

  14. Ah, for the good old days when people didn’t question judges’ natural right to be God-Emperors with no scrutiny or accountability.

  15. It is unfortunate that there probably won’t be room on Rushmore for Justice Ginsburg after America celebrates enactment of universal health care by placing former Pres. Obama on that mountain.

    I hope the universal health care system is formally named Obamacare, so that every American gets to recite the name periodically.

    1. It’s difficult to tell the parody Kirkland from the real one.

      1. You figure conservatives will come up with a way to avoid universal health care? The Republicans’ health care proposal is like Boris Johnson’s ‘promising negotiations — illusory.

        The Democrats are positioned to win this one by default. The clingers aren’t even trying.

        1. “You figure conservatives will come up with a way to avoid universal health care?”

          I thought Obama already brought us universal health care.

          Or maybe those darned kulaks and wreckers are ruining everything again.

  16. Why isn’t everybody condemning Ruth Buzzi Ginsburg for gamesmanship the way they did Cocaine Mitch in the Garland affair?
    She’s 86 (that’s both her age and her weight) and clearly dying, anybody in any other job would have retired; but she’s hanging on by her fingernails to deny Trump the chance to nominate her successor…but that’s cool…because…?

    1. She did the same thing to Obama, the fiend!

      1. So, you believe–and this is the only truly relevant point–that she would not have retired by this point, had Hillary won?
        Also: not being ready in 2014 has little to do with being ready in 2019.
        Lastly: she, like everyone else, probably assumed Hillary would win.

        1. No need for you to go into speculative telepathy. She was asked to retire during Obama’s Presidency, she said she wouldn’t. Partially because of the filibuster. but mostly because no one can tell her what to do:

          “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.”
          https://www.newsweek.com/ruth-bader-ginsburg-explains-why-she-wont-retire-272876

          You have no idea about the counterfactual, and neither do I.

          1. It’s kind of funny, because Scott Lemieux over at Lawyers, Guns & Money- a political scientist who fancies himself an expert on the law- actually has been taking the position that she was supposed to read the 2014 Senate election and the Republicans’ Merrick Garland strategy and strategically retire before then. And there are some other academics (again, mostly liberal poli sci types, though there are a couple of law professors who should know better) who are echoing that position.

            The point being, Ginsburg is damned if she does and damned if she doesn’t.

          2. I do know that she is 86 and has just had a malignant tumor removed from her pancreas; there are approximately 0 out of 100 reasonable people who, under these circumstances would not retire absent some exigent circumstances like extortion or, in this case, spite.
            Still my original point stands: how is Ginsburg’s gamesmanship less despicable than McConnell’s?

  17. She noted in particular the confirmations of Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan. Nominated by President George W. Bush in 2005, Roberts was confirmed with a 78-22 vote. Sotomayor and Kagan—nominated by President Barack Obama in 2009 and 2010, respectively—each received fewer than 70 affirmative votes.

    Shocking of course. But I have a feeling there was one between Roberts and {Sotomayor and Kagan} who didn’t just get fewer than 70 votes, he got fewer than 60. In fact none of the 5 GOP appointees on SCOTUS, except Roberts, got as many as 60 votes.

    1991 : Thomas 52
    1993 : Ginsburg 96
    1994 : Breyer 87
    2005 : Roberts 78
    2006 : Alito 58
    2009 : Sotomayor 68
    2010 : Kagan 63
    2017 : Gorsuch 54
    2018 : Kavanaugh 50

    There does seem to be a pattern of later Justices getting lower numbers of votes, but it seems to be set within an even more obvious pattern of GOP nominees getting a bigger kicking than Dem ones.

    The average vote for GOP nominess is 58, for Dem nominees 78.
    The four Dem Justices got more votes in total than the five GOP Justices in total.

    So if there is work to be done to subtract partisan rancour from the judicial appointments process, we know where to start.

    1. You assume symmetric partisanship and qualification in the candidates.

      1. No, I’d say he’s pointing out asymmetric partisanship. When was the last time Republicans went looking for somebody to accuse a Democratic nominee to the Court of being a rapist? Democrats have done that twice now.

        Further, the Democratic justices vote together much more reliably than the Republican justices do.

        I think it’s clear that the Democrats have taken having control of the Court much more seriously than the Democrats have, and for a long while, since FDR approximately. So they’ve devoted much more effort to finding candidates who will be reliable.

        1. Brett, if the candidates are asymmetrical, then the partisanship stats are borked.

          The other way to look at the rapist bit is that maybe the GOP should stop nominating rapey guys.

          Don’t know what the relevance of what voting together means.

          Your usual speculation about a focused judicial agenda on the left is taken as your usual mild paranoia. GOP voters have cared about the Court with much more intensity than Dems for decades now up until Gorsuch and Kavanaugh.

        2. Don’t know what the relevance of what voting together means.

          Then try moving the telescopr to your other eye.

          It goes directly to your suggestion of symmetric or asymmetric partisanship. If the GOP appointed judges vote together less than the Dem appointed ones , then that’s evidence that they are less partisan.

          As to asymmetric qualification, yes, that’s the usual excuse. That the media runs anti-Clinton stories 20% of the time, anti-Bush stories 80% of the time, anti-Obama stories 5% of the time and anti Trump stories 95% of the time is not a reflection of media bias, but a reflection of the fact that GOP Presidents are objectively awful.

  18. In my youth, a common response was ” Wow! lets not make a federal case out of this”.

    The clear meaning was, the federal government is of limited scope.
    Yes I long for the good old days when the federal govt was limited to enumerated powers.Not killing babies and defining marriage.

  19. She noted in particular the confirmations of Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan.

    I wonder (but not really) why her analysis didn’t include the two most recent appointments to the Supreme Court. Neither received as many votes than either Justices Sotomayor or Kagan.

    Going back 8 nominees (2 each for Trump, Obama, Bush, and Clinton), we see that Rs cast 87 votes for D nominees, while Ds only cast 28 votes for R nominees. You can add another 3 to the D total if you want to count I.

    Across all 8 nominations, there was 1 R vote against an R nominee and 1 D vote against a D nominee.

    It’s probably notable that in none of those votes was the Senate held by an opposing party.

    If we include Bush 41’s two nominees (making 6 R nominees and 4 D nominees), Ds cast a total of 85 votes (+3 I) for R nominees. The Ds controlled the Senate for both of those nominations, so it is likely that Bush was more deferential to D interests.

    Opposing party “yea” votes (last 10 nominees):
    46 – Souter
    11 – Thomas
    40 – Ginsburg
    33 – Breyer
    21 – Roberts
    3 – Alito
    9 – Sotomayor
    5 – Kagan
    3 – Gorsuch
    1 – Kavenaugh

    In short, Senators are good at voting for nominees when their party holds the Presidency. Senators are less good at voting for opposing President’s nominees, and have been getting worse for 30 years.

    1. It would be interesting to see that list taken back to the 1870s.

      1. Most votes were voice votes and are not recorded, let alone by party affiliation. However, some judges do have vote totals (at least, according to Wikipedia):

        Clifford (1858) 26-23
        Swayne (1862) 38-1
        Bradley (1870) 46-9
        Waite (1874) 63-0
        Woods (1880) 39-8
        Matthews (1881) 24-23
        Gray (1881) 51-5
        Lamar (1888) 32-28
        Fuller (1888) 41-20
        Brewer (1889) 53-11

        I suppose there are probably some sort of records that could be dug up to get party votes on this data. It would be an interesting research project for an aspiring law student.

  20. “It’s very hard to do anything as a loner, but if you get together with like-minded people, you can be a force for change,”https://www.easydrivingtest.com.au/rta-driving-test Ginsburg said. “If you look at things over the long haul, we have come a long way from how it once was.”

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