Ginsburg And The Civility Of Justice

 

Ruth Bader Gingburg

The death from cancer of Justice Ruth Bader Ginsburg certainly came as no surprise. Cancer is a relentless foe. Democrats, it must be supposed, were preparing for her departure long before she expired last Friday.

It did not take long for Mother Jones to issue marching orders to Democrats: “It will be bare-knuckles politics from the right. Do or die. By any means necessary. To replace Ginsburg with a young right-wing extremist. And for the Democrats to have a chance of thwarting them, they must realize that this fight is not only a matter of persuasion. They will not win by writing well-reasoned op-eds. Cable host tirades will be of little use. Panel discussions will be irrelevant. Clever ads highlighting GOP hypocrisy won’t do the trick. Angry editorials in the New York Times won’t help. Not even a freckin’ David Brooks column (“conservatives should realize they have an interest in preserving democratic norms!“) will do them any good. Passionate speeches on the floor of the US Senate? Fuggedabout it.

“This is about power.”

Indeed, one of the things fatally wrong with the modern Supreme Court is that it has become inordinately powerful. And that is why the battling over Supreme Court justices has become a battle in earnest rather than a battle of wits.

It was not always so. Seeking to persuade the patriots of his day to accept the U. S. Constitution, Hamilton wrote that the Supreme Court never could be more powerful than the governor of New York.

How times change.

In the modern period – sorry, post-modern period – the court has become yet another political player, along with ANTIFA domestic terrorists, the Marxists street organizers who gave birth to the Black Lives Matter movement, and ambitious state attorneys general like William Tong, who appears to have his political heart set on occupying U.S. Senator Dick Blumenthal’s vacant seat, should the senator choose not to run for re-election. Blumenthal was for two decades Connecticut’s consumer protection attorney general, his prosecutorial teeth having been sharpened on business men and women in his own state.

The preponderance of “bare knuckles” thrown during modern Supreme Court hearings on appointments to the court have come from the left. Feminist icon Ginsburg, confirmed by a 96–3 senate vote in 1993, sailed through her nomination process with nary a scratch on her hide. It was pretty hard to beat U.S. Senator Edward Kennedy’s depreciation of Judge Robert Bork – “Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens” – until Judge Brett Kavanagh hove into view. One of Kavanaugh’s most boisterous opponents was Blumenthal. Twenty years as chief business denunciator in Connecticut had perfectly fitted him for the job.

Before Kavanaugh, Blumenthal had ripped Judge Neil Gorsuch. It was Gorsuch who, surviving the tumult of the usual Democrat maulers on the U.S Judiciary Committee, went on to write an opinion that brought gays under the protective umbrella of the 14^th amendment. Gorsuch, gored by Blumenthal, told The Senator From Planned Parenthood during his own hearing that Roe v Wade was settled law and, as such, not likely to be consigned to the flames of Hell by justices mischaracterized by the senator as flaming rightest revolutionists prepared to sack Roe v Wade and put a torch to gay marriage. The Supreme Court has its own delicate judicial and ethical gyroscope, which is thrown out of balance by political interference from either the executive or judicial branches.

Like Blumenthal, Ginsburg was a non-observant Jew. She was, however, not given to personal attacks. Ginsburg’s warmest personal friend on the court was originalist Justice Antonin Scalia. The two often dined together and shared a love of Opera. Ginsburg had the temerity to criticize the judicial architecture of Roe v Wade as poorly constructed, terminating a nascent democratic movement to liberalize abortion laws which might have built a more durable consensus in support of abortion rights. But for Blumenthal, Roe v Wade is an imprescriptible 11^th commandment: Thou shalt not propose any restrictions on Planned Parenthood that impede the power of the abortion provider to engage in late term abortions, an impediment that does not rescind Roe v Wade; nor shall one prevent abortionists from harvesting and selling baby parts to doctors.

Mother Jones is right – it’s all about power. The civility Ginsburg showed to Scalia, handsomely returned – and also, one imagines to Gorsuch and the much mauled Kavanaugh -- is a residue of the past, pushed off track by senators with sharp elbows.