Commentary: I Dissent (Paul)

Justice Ruth Bader Ginsburg was a major American jurist who made historic contributions to American law, as well as a ground-breaking, glass-ceiling-smashing woman in a man’s field. She deserves accolades and her passing calls for deep mourning. But our times call for self-examination as well. Ginsburg should have retired far earlier than she did. Her selfish refusal to step down left America in a terrible place – a place we never should have gotten to. Although she was a cautious centrist and a hypocrite who did not walk the walk, liberals created a cult of personality around her, stealing valor from a whole generation of genuine activists and radicals and intellectuals who were willing to live the values they professed.

I was saddened to hear of Ginsburg’s death, but was not terribly surprised. While the media gushed about her fitness regimen and the number of push-ups she could do, the truth was that she was a frail elderly woman who was first diagnosed with cancer twenty-one years ago, in 1999. She was treated successfully for colon cancer, then in 2009, for pancreatic cancer. In 2014, she received a heart stent.

She did not retire during Obama’s presidency, allowing Obama to appoint a replacement.

It’s obvious that in retrospect, this was a poor strategy. But less obviously, it was a poor and risky strategy at the time. Per Mother Jones,

The calls for Ginsburg to step down began in 2011 when Randall Kennedy, a Harvard law professor and former clerk to the late Thurgood Marshall, wrote a piece in The New Republic gently urging Ginsburg, then 78, to retire while Obama was in office. (He had suggested the same of Justice Stephen Breyer, now 80.) Kennedy was publicly airing private concerns among Democrats that it could be Ginsburg’s last chance to be replaced by a Democrat.

And:

After Obama’s 2012 reelection, the Ginsburg retirement calls came with a new urgency. In December 2013, the National Journal ran a piece titled Justice Ginsburg: Resign Already!, in which writer James Oliphant observed that the passage of Obamacare would likely hand Senate control to the Republicans in 2014, thus preventing Obama from naming a Ginsburg successor.

Ginsburg was not in good health. The article’s author, Stephanie Mencimer, describes how

When a Supreme Court session adjourns, the public isn’t allowed to depart until all the justices have left the bench. After the arbitration arguments were gaveled to a close, I got up to leave with the rest of the onlookers. But then everyone stopped. All of the justices had left except for Ginsburg, who was having trouble getting out of her chair. There was an embarrassed silence as members of the press, the bar, and the public tried not to gape as Ginsburg mustered the courage to descend a single step off the bench and finally disappeared behind the red curtain. The contrast between the real-world Ginsburg and the comic-book superheroine of social media was striking.

And how

It’s not considered polite to point this out, but Ginsburg has been falling asleep on the bench during oral arguments for years. Back in 2006, she dozed off during a redistricting argument for a good 15 minutes – long enough for the courtroom artist to sketch her in repose.

Ginsburg famously dozed during Obama’s 2012 and 2015 State of the Union addresses, as well. But that was, she insisted, just because she had drunk a lot of wine. That’s fine and reflects well on both the justice and the institution of the Supreme Court, and no one would have criticized a male justice for doing the same thing. That gurl power, though!

I hope that if I ever, G-d forbid, become a major public figure, if I reach the point where I’ve become a public laughing-stock, my family will take me aside and gently insist that it’s time to return to the private sector and spend more time with my grandchildren.

Ginsburg’s age started to get attention from scholars willing to publicly recommend that she step down. Per the New York Times,

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.”

But

In an interview with Elle Magazine in the fall of 2014, Ginsburg said that “anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.” No one as liberal as she was could get confirmed, she suggested.

It is probably true that Obama would have had a hard fight to get anyone confirmed during his second term. But how liberal was Ginsburg, really?

In my experience, liberals embedded in institutions often think of themselves as about as left as it is possible, or at least reasonable, to be. But they neglect the fact that working within institutions limits and shapes a person’s whole world view, and there is a whole world outside those institutions; a world filled with all kinds of political praxis, off the institutional radar, acts that are direct, and not necessarily polite or politic, which makes them “radical,” because they get at the roots of our problems, and therefore fall outside the world views and purviews of those inside the beltway.

In any case, didn’t want to step down. She joked that she was, in fact, making some concessions to her age:

“I don’t water-ski anymore,” she said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”

Ha-ha, it’s funny. Laugh!

And

Dorothy Samuels, a former legal editorial writer for The New York Times, conducted interviews for a book on Ginsburg starting in 2018. She asked friends and former clerks of the justice to look back to the period in 2013 and 2014. “I was struck by how many people I spoke with, including friends, acquaintances and former clerks, felt she should have resigned at the time and that her staying on was terribly self-centered – a view I share,” Samuels emailed me. “I was also struck that normally forceful advocates I spoke with would not express their dismay on the record while she was alive.”

Liberal identity politics is a hell of a drug. Apparently no one wanted to leave dirty fingerprints on the hem of her garment.

The New York Times reported that President Obama himself had a low-key meeting with Justice Ginsburg, in the summer of 2013, in which

…he did not directly bring up the subject of retirement to Justice Ginsburg, at 80 the Supreme Court’s oldest member and a two-time cancer patient.

He did, however, raise the looming 2014 midterm elections and how Democrats might lose control of the Senate.

But

…the effort did not work, just as an earlier attempt by Senator Patrick Leahy, the Vermont Democrat who was then Judiciary Committee chairman, had failed. Justice Ginsburg left Mr. Obama with the clear impression that she was committed to continuing her work on the court, according to those briefed.

Taking Obama’s advice would have been a good opportunity for Ginsburg to bow out gracefully, and to demonstrate her respect for the first Black president. In an alternate timeline, would she have accepted the guidance, had it come from Hillary Clinton in 2017? Her daughter implied this. Again, per Emily Bazelon in the New York Times:

“I think that Mother, like many others, expected that Hillary Clinton would win the nomination and the presidency, and she wanted the first female president to name her successor,” Jane Ginsburg [Ruth Bader Ginsburg’s daughter] emailed me on Sunday.

Ginsburg loved identity politics, all right, as long as the identity in question was hers.

Will you brand me irredeemably sexist or anti-feminist if I suggest that her failure to retire was a selfish act, and may have had more to do with her marketing campaign than with wise and careful deliberation?

Does it make me a heel to suggest that it might have had something to do with

four biographies, five children’s books, a coloring book, a workout book, an action figure, an “historic Ruth Bader Ginsburg notebook,” a throw pillow and a robe-bedecked figurine

available on Amazon?

While an awful lot of “resisters” ordered those tchotchkes from Amazon, lining Jeff Bezos’s already well-stuffed pockets, Ginsburg gambled on her own health, knowing better than anyone else just how ill she had been, and knowing her family history better than anyone else as well – her mother had died from cancer, right around the time of Ginsburg’s graduation from high school.

In 2018, Ginsburg was diagnosed with lung cancer. That was treated. But in 2019, she was found to have yet another recurrence of cancer, with lesions on her liver. She withheld this news from the public.

She gambled on her health, and she gambled on the outcome of the election, too. These were two big, big gambles.

It never should have come down to this, of course – the story of the modern Supreme Court is largely a story of the relentless abuse of politics by one party in pursuit of power by any means necessary – but when she lost, we lost.

Ginsburg’s tenacity served a different role after Trump’s inauguration; it further politicized the Supreme Court. In a storybook, for every villain, one must have a hero; Politico points out that

The Ruth Bader Ginsburg celebration, therefore, isn’t strictly about RBG at all; it’s about DJT. With a president who knowingly sets himself up as an icon of one pole of American politics, it’s about picking (or even inventing) a rival icon to rally around – a way to rebel against a president who openly vows to fill the nation’s courtrooms with like-minded judges, most of them hostile to the concepts of due process and equal protection that liberals hold dear. But in its very presence as an anti-movement, a liberal call to arms to thwart Trump and Mitch McConnell and the Federalist Society, the cult of RBG furthers the politicization of the court. It’s a form of surrender to the “everything’s political” argument that enables Trump to traduce boundaries of propriety that have existed for decades, dismissing the existence of any sort of independence or professionalism in government institutions.

I would also point out that every time Ginsburg was held up in the media as the anti-Trump, Trump’s name was mentioned. Again. For free.

In her late career, Ginsburg embodied the politics of identity and representation. In pursuit of her feminist agenda of enabling the first female president to replace the most famous female Justice, depriving the first Black president of the privilege, she wound up handing the vacancy to a kleptomanaical white supremacist and his administration of kakistocrats.

So forgive me if I don’t join in the chorus of Rosh Hashanah Hosannas to her amazing gurl power.

Justice Ginsburg, Institutionalist

There’s no doubt that Ginsburg did some great work over the course of her long and storied career. I respect her accomplishments. But I don’t believe that she was the beacon of hope for the downtrodden that liberals give her credit for, especially when those downtrodden folks were entangled with the criminal justice system. She did some good work on the Supreme Court, but it wasn’t truly “all that.” Per the Times again,

When Obama nominated Merrick Garland to replace Justice Antonin Scalia after his death in February 2016, Ginsburg had a chance to become the senior justice of a liberal-moderate majority of five. She would have capped off her career by writing majority opinions in major cases, making a mark on the law that largely eluded her (with the important exception of her 1996 majority decision that found the all-male admissions policy of the Virginia Military Institute, a state-supported military college, unconstitutional).

In other words, her contributions to American jurisprudence, in her years on the Supreme Court – twenty-seven of them! – were significant, but not monumental. Ultimately, she was a centrist on the Court, and an Institutionalist above all. Per the Post:

“She tried to work through the system,” said Eisner. “She very much believed in institutions and incremental change. That’s an outgrowth of her experience as a Jew. The law protected minorities – not all, and not equally – but there was a great reverence among the Jews of that generation in the power of government to protect them and pave the way for their achievement.”

Ask Black Americans, and poor Americans of all races, how well those institutions are protecting them.

Or, to put it another way, there is a long tradition of radical Jewish activism and advocacy on behalf of the down-trodden, rooted in the moral imperatives at the heart of Judaism. I’ll mention Michael Lerner, Nat Hentoff, and Noam Chomsky. It’s too bad Ginsburg wasn’t a part of that tradition.

In her confirmation hearing, she described herself as neither liberal nor conservative. Liberal commentators seem to have concluded that, therefore, she was a radical. But that does not accurately characterize her thought at all. Russell A. Miller of the Washington and Lee University School of Law writes in “Clinton, Ginsburg, and Centrist Federalism” that

As regards federalism, it seems that President Clinton got exactly what he wanted from his first nomination to the Supreme Court: a judicially modest centrist that contributed to his attempt to refashion the Democrats as a party embracing “ideas and values that [are] both liberal and conservative.”

and

Justice Ginsburg is best known for her long campaign to promote gender equality. Her successful advocacy on that issue before the Supreme Court throughout the 1970s led President Clinton to conclude, when announcing her nomination to fill Justice Byron White’s vacated seat on the high court, that “she is to the women’s movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African-Americans.”

That’s frankly offensive to the descendants of slaves living in a nation that oppresses them with not only widespread bigotry, but racist institutions. And yet, liberals found it funny to appropriate hip-hop culture and dub her the “Notorious RBG,” borrowing imagery from Black rapper and songwriter Christopher Wallace, better known as Biggie Smalls or the Notorious B.I.G. Biggie, though, might have had a few things to say about Ginsburg’s appropriation of his branding, as well as her record on the Supreme Court.

Per Nathan J. Robinson in Current Affairs, Ginsburg

…was a spectacular law student in the face of rampant sexism and personal challenges. She became a formidable civil rights lawyer, dedicating her career to eradicating laws that discriminated on the basis of gender. Her use of male plaintiffs to demonstrate how sex-based classifications harmed men and women alike was shrewd strategy and smart politics. If you were a young, fiery liberal looking for a role model, you could do worse than Ruth Bader Ginsburg, civil rights lawyer.

Yet the recent outpouring of ardor has celebrated not just this period, but her time the court as well, and Justice Ginsburg is a different story. Empirical measurements of ideology confirm the eye test: Ginsburg is a center-left Justice roughly in line with President Obama’s two appointees and Stephen Breyer. This gang is less liberal than the recently retired John Paul Stevens (appointed by Republican President Gerald Ford) and miles to the right of recent justices Thurgood Marshall and William Brennan.

Ginsburg is rightly celebrated for her dissent in the case of Shelby County v. Holder, an important voting rights case. But I wonder what Biggie would have thought of her opinion in Integrity Staffing Solutions v. Busk, in which she joined the majority in agreeing that Amazon warehouse workers who had to spend half an hour in line every day, waiting to go through security screenings, didn’t need to be compensated for that time, because it was not “an integral and indispensable” part of their job.

Thus, helping those liberal “resisters” hand yet more money to Jeff Bezos, whose pockets surely didn’t need to bulge any bigger.

I wonder what Biggie, who spent nine months in jail for dealing crack cocaine, would have thought of her work on Davis v. Ayala, a case in which the Supreme Court upheld the death sentence for a Hispanic defendant who was convicted by an all-white jury, and whose counsel was excluded from the peremptory challenge hearings that the prosecution used to strike all the Black and Hispanic jurors from serving in his trial. Justice Kennedy wrote a separate concurring opinion in which he criticized the fact that Ayala had been held in solitary confinement for more than twenty-five years. Justice Sotomayor wrote a dissenting opinion which Ginsburg, Breyer, and Kagan joined, but Ginsburg didn’t join Kennedy’s concurring opinion and apparently had no strong opinion on Ayala’s twenty-five years in solitary.

I wonder what Biggie would have thought of her work on other cases involving the rights of defendants? Per Current Affairs,

In Heien v. North Carolina, the court held that the police may justifiably pull over cars if they believe they are violating the law even if the police are misunderstanding the law, so long as the mistake was reasonable. In Taylor v. Barkes, the Court held that the family of a suicidal man who was jailed and then killed himself could not sue the jail for failing to implement anti-suicide measures. In Plumhoff v. Rickard, the court held that the family of two men could not sue the police after they had shot and killed them for fleeing a police stop. Ginsburg joined the opinion in every case.

And

The Kansas Supreme Court had overturned a pair of death sentences, on the grounds that the defendants’ Eighth Amendment rights had been violated in the instructions given to the jury. The U.S. Supremes swooped in, informing Kansas that it had made a mistake; nobody’s Eighth Amendment rights had been violated, thus the defendants ought to have continued unimpeded along the path toward execution. The Court’s decision was 8-1, the lone dissenter being Sonia Sotomayor. Ginsburg put her name on Justice Scalia’s majority opinion instead.

To me, the single most offensive thing about Ginsburg’s centrism is that she apparently was morally opposed to the death penalty, yet chose never to use the bench to share her views on the subject.

Robinson writes more on Ginsburg’s record on the court; I recommend his piece. You should read it, if you’re willing to consider her record, rather than her legend. He makes a strong case that it is Justice Sotomayor, not Ginsburg, who deserves accolades for taking important and moral stands on issues of racial and criminal justice.

Liberals celebrate her chummy relationship with Antonin Scalia, but as Robinson points out, discussing Notorious RBG, the book:

…one of Notorious RBG’s few mentions of race is particularly strange. In the book’s discussion of Bush v. Gore, the contentious decision that decided the 2000 presidential election, the authors mention that Ginsburg’s draft of her dissent had a footnote alluding to the possible suppression of Black voters in Florida. Justice Scalia purportedly responded to this draft by flying into a rage, telling Ginsburg that she was using “Al Sharpton tactics.” Ginsburg removed the footnote before it saw the light of day.

In other words, to Ginsburg, friendship with Scalia was more important than taking a stand for the voting rights of Black Americans.

Robinson writes

On the one hand, it seems a charming parable about the setting aside of differences and the embracing of common ground. But it’s also odd that anyone who takes their values seriously could simply “set aside” the fact that, by their own metric, their friend was one of the most powerful enforcers of systematized bigotry and repression in the country.

In fact, what it tells me is that despite her ardent feminism, Ginsburg didn’t really disagree with Scalia’s bigotry, at least not in any way that mattered. Decent people don’t tolerate bigotry. The narrator of the song “Your Racist Friend” by They Might Be Giants expresses the feeling this way:

I know politics bore you
But I feel like a hypocrite talking to you
and your racist friend.

Perhaps, like the bigot in the song, Ginsburg let “the contents of the bottle do the thinking,” because I truly don’t believe that one can “shake the devil’s hand and say you’re only kidding.” But liberals will celebrate the oddest things, even writing an opera about Ginsburg’s friendship with Scalia – an opera that comes with footnotes referencing Supreme Court decisions, naturally. It features a scene in which Scalia is imprisoned for “excessive dissenting,” but Ginsburg rescues Scalia:

COMMENTATOR:
Ruth Bader Ginsburg!
But how did you get in?
I have sealed all the exits!

GINSBURG:
(To the COMMENTATOR)
Then you have no idea with whom you are dealing.
(It’s not the first time I’ve had to break through a ceiling.)
I heard you say: “No man can leave or enter.”
So as for any woman – what’s to prevent her?

Liberals made her into Arwen, but in this telling, Arwen came to Sauron’s rescue. Go gurl!

Later in the opera, Ginsburg scolds Scalia about affirmative action,singing

And people need protection
Against the vile infection
Of rank discrimination in the form of racial caste,
Which looks like it could last
Unless we end it fast.
And saying that our future’ll
Be suddenly “race-neutral”
Is acting like an ostrich with its head stuck in the sand –
Because it cannot stand
To see what plagues our land.

The librettist’s Ginsburg is, unfortunately, a far cry from the real Ginsburg. Per The Washington Post in 2018, she hired far fewer Black clerks than Brett Kavanaugh:

Kavanaugh has engaged in one of the most diverse hiring practices of any federal appellate judge. Of his 48 law clerks, a little more than 25 percent have been nonwhite. And as a justice, he has already hired one African American clerk. She is one of only three blacks clerking on the Supreme Court this year — two of whom previously clerked for Kavanaugh on the Court of Appeals.

Explaining his selection of law clerks whom other judges overlook, Kavanaugh said: “What it takes is not accepting the same old answer, oh, there’s a disparity. Well, why and then do something about it.” As part of that effort, Kavanaugh frequently speaks to black law student organizations to encourage clerkship applications.

Ginsburg, on the other hand, has hired only one African American law clerk in her 25 years on the Supreme Court. This is an improvement from her 13-year tenure on the U.S. Court of Appeals for the District of Columbia Circuit, when Ginsburg never had any black clerks. When this issue was raised during her Supreme Court confirmation hearings in 1993, Ginsburg said: “If you confirm me for this job, my attractiveness to black candidates is going to improve.” This remains a promise unfulfilled.

In other words, she practiced a a sort of laissez-faire, “color-blind” approach to hiring clerks: let the (job) market decide. She left it to other people to actually apply the affirmative action that she championed:

…but Ginsburg represents a familiar person to people of color: someone who espouses a progressive politics committed to racial justice, but whose old-boy-and-girl networks are as segregated as a senior staff meeting of the Trump administration.

Stolen Valor

Per The Nation,

Ginsburg’s extraordinary life certainly has a cinematic quality. But so does that of Pauli Murray, a brilliant black female lawyer whose law-review article arguing that the Equal Protection Clause in the 14th Amendment applies to women was later used by Ginsburg. An orphan, who taught herself to read at age 5, Murray was the first African American to receive a JD from Yale Law School and laid some of the theoretical legal groundwork for both the women’s-rights and civil-rights movements. She helped Betty Friedan found the National Organization for Women, socialized with Langston Hughes, Eleanor Roosevelt, and James Baldwin, and later became a poet and Episcopal priest.

Unlike Ginsburg, she actually was an activist, starting as a child when she refused to ride segregated streetcars and later was arrested for sitting in the front of the bus. But no movies or mugs bear her visage, and she is very far from being a household name. The RBG cultists don’t help: In their heroine-worship, they end up erasing those women of color, who may not fit any conventional feminine standards, and their righteous, often more brave contributions to the cause.

Liberals stole valor and iconography from the Black community, in Ginsburg’s name – and Ginsburg did not earn it with service to that community.

Ginsburg was not a particularly observant Jew, and per The Washington Post “rarely attended services.” Her parents were observant; she was secular. It’s not an uncommon pattern, of course. So of course mourning her passing according to Jewish traditions is appropriate. This didn’t stop some liberals from engaging in a very muddled tribute, singing “Amazing Grace” on the steps of the Supreme Court. Salvation by Grace is, very simply, not a Jewish concept, but whatever. (John Lennon’s “Imagine,” which they also sang, was probably a more appropriate choice, although I cannot actually tell you with any certainty whether RBG was an atheist, or not.)

Candace R. Kwiatek wrote in The Dayton Observer, back in 2015, that

In Jewish thought, it is through doing that we open the door to tikun olam (repair of the world) and God’s favor, mercy, and forgiveness.

Mourn, Then Organize

So go ahead and blow the shofar and sit shiva and mourn if you like – but do it because it is your tradition, or because you want to honor where RBG came from. But don’t let liberals steal valor, on her behalf, from her ancestors, and the radical Jewish activists who strove to truly repair the world for all its people – activists whose moral beliefs would not have allowed them to drink wine and break bread with the likes of Antonin Scalia.

Remember Ginsburg’s significant and groundbreaking career. But we need to be clear-eyed to face the challenges ahead. Rose-colored glasses don’t allow us to see clearly. Cults of personality distract us from reality and prevent us from pointing out the times when our public servants could have served more of us, and better.

Let’s not forget the dire straits we in, made worse by Ginsburg’s failure to advocate for the vulnerable, and her poor judgment in failing to retire. Representation is great, and important, but let’s not let people’s media images cloud our judgment, and perhaps their own, OK?

Change doesn’t always happen “one step at a time,” as Ginsburg said. Fascism tends to grow, and states fall, slowly at first… but then, much more quickly.