Wisdom is in short supply
by Tom Sullivan
CNN last night ran the film RBG. Ginsberg, says IMDB’s introduction to the documentary on the life of U.S. Supreme Court Justice Ruth Bader Ginsburg, “has developed a breathtaking legal legacy while becoming an unexpected pop culture icon.” It’s not the kind of act any prospective Supreme Court colleague would prefer to follow. Judge Brett Kavanaugh will have to when his Senate confirmation hearings open today soon after this post goes live.
“Damn, she’s good,” I whispered during Ginsberg’s confirmation hearings in 1993. She was relaxed, frank, and fiercely intelligent, with clear, thoughtful answers to questions senators posed. Ginsberg spoke her mind. She spoke from experience. One never got the feeling she was giving answers tailored to landing her the job. Senators asked her what she thought. She told them. It is an experience yet to be repeated. She was as impressive as Clarence Thomas two years earlier was not, nor anyone confirmed after her. (Where I had the opportunity to watch hearings subsequent to hers as closely, they left little impression.) What for Ginsberg was a serious discussion of constitutional principles and theories even her Senate interlocutors seemed to enjoy has since become a strategic exercise in evasion and running out the clock.
The U.S. Senate Judiciary Committee approved Ruth Bader Ginsburg’s nomination 18-0 and the full Senate confirmed Ginsberg on August 3, 1993 by a vote of 96-3.
GOP senators now reference what they call “the Ginsberg rule,” claiming she set a precedent for evading answers about issues that might come before the court. NPR’s Nina Totenberg’s recollection, however, matches mine. That’s not how it went:
By the time she had finished testifying, Ginsburg had also answered questions about affirmative action, gender discrimination, single-sex education, the limits of congressional powers, even Indian treaties and government funding for the arts. Indeed, a recent study shows that she was among the most responsive nominees ever to appear before the senate Judiciary Committee.
Conversely, Neil Gorsuch, Trump’s first nominee, was the least responsive nominee in 50 years, according to the study. The evasiveness titleholder, according to the study, was Justice Abe Fortas, nominated by President Lyndon Johnson to be chief justice in 1968. Pummeled by hostile senators, both Democrat and Republican, Fortas said next to nothing at his confirmation hearing, then saw his nomination filibustered to death. He ultimately was forced to resign from the court in disgrace.
Don’t hold your breath waiting for forthright responses from Brett Kavanaugh. They will be in short supply, as is wisdom.
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