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Ginsburg Showed How to be Friends with Foes, but Battle Ahead Will be Anything but Friendly

09-19-2020
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In this April 6, 2018, file photo, Supreme Court Justice Ruth Bader Ginsburg applauds after a performance in her honor after she spoke about her life and work during a discussion at Georgetown Law School in Washington. (AP Photo/Alex Brandon, File)

Carrie Severino of the Judicial Crisis Network clerked for Justice Clarence Thomas on the U.S. Supreme Court and actually knew and spoke with Justice Ruth Bader Ginsburg over many months.

"As a clerk to Justice Thomas, one of the things that was great about it was getting to meet the other justices.  And we had the chance to go to Justice Ginsburg's chambers.  She invited us for tea, which was just lovely," Severino told CBN News.

Banana Cake & Tea with the Ginsburgs

"Her husband…he passed away a few years before she did…but he was known as a wonderful cook.   He made a banana cake and we just got to sit and chat.   It's such an amazing opportunity to talk to someone who had an incredible impact on American law," said Severino.  

She continued, "I may not have agreed with her on all of her positions, but you have to respect the determination, her trailblazing approach, and really her relationship with her other colleagues on the bench, where she was known as being someone who got along very well with everyone; her famous relationship with Justice Scalia, despite the fact that they obviously disagreed very strongly on important jurisprudential issues.  They were still able to respect and love each other as friends."

They Were Genuine Friendships

"I think that's one of the positive things about life tenure on the Supreme Court is everyone there knows you're going to be working with these same people for the rest of your life," Severino commented.  "And so there's no point making enemies unnecessarily."

Court-watchers may think some of the friendliness could be a tactic to try to get five justices on your side to win a case, but Severino says not so in Ginsburg's case.

"Some of it you may think, 'this is strategic because they want to win some votes.'"  

But what Severino pointed out about Ginsburg is that "She wasn't winning a lot of Justice Scalia's votes because of their opera outings together or because of spending New Year's Eve together.   She wasn't winning Justice Thomas's votes because she was a good friend to him.  It was really just a genuine kindheartedness."  

She added, "And I think that's something that unfortunately our society nowadays has lost far too much.  So it's a lesson and a reminder that we need to be able to disagree with people – even about issues that we hold very strongly – while still recognizing their common humanity and being able to treat them with love and respect."

She Could Drive Conservatives Crazy

"Her history on the issue of abortion is one that definitely is something that a lot of conservatives would disagree with.  But really she was someone who very consistently was one of the most liberal justices on the Court on almost any issue you could come up with.

"In recent years we've seen Justice Kagan or Justice Breyer who might join the conservatives on an opinion or on a portion of an opinion.  But Justice Ginsburg and Justice Sotomayor were the ones you could pretty much count on: they're not going to budge.  So she definitely was on the opposite side of the spectrum on almost any of these major 5-4 cases.   However, we have to remember that 40 percent of the Supreme Court cases on average every term are unanimous," Severino explained.  "So there are a lot of important issues of law that across the very broad spectrum we see on the Court, you still do see agreement."

Is There Time Before the Election to Appoint a New Justice?

So how long does it usually take to pick and confirm a replacement after a justice has passed away?

"I think the average is in the 60s and 70s in terms of number of days, but certainly there's well more than that amount of time before the end of the year.  And that's what Leader McConnell has committed to.  He said we're going to have it before the end of the year.

"Obviously it varies widely and has across American history.  It used to be much swifter.  The last time we had a nomination in an election year where the presidency and the Senate where held by the same White House, it was confirmed in like nine days," Severino recalled.  "That's probably not what we'll see this time.  I think Justice Ginsburg's own confirmation process took about 50 days.  That was back in 1993.   I think that's much more close to what you'd expect nowadays, and she was actually almost unanimously confirmed."

Though she was ideologically miles apart from Brett Kavanaugh, Ginsburg was not happy with the drawn-out and drag-em-through-the-mud process Kavanaugh faced to get to the high court.

Severino recalled of Ginsburg, "She went on record saying I don't like the way things are now.  The way we did it then was how it should be done."

But what if the Senate is in the middle of the confirmation process and Joe Biden wins the presidency?  Is there anything in the Constitution or law to allow Senate Democrats or Biden to do anything to stop the confirmation of a Trump nominee?

Severino said emphatically no and commented, "You're president until the end of your term.  Chief Justice John Marshall for example – one of the most illustrious justices – he was actually a lame-duck appointment by John Adams and was confirmed in a lame-duck session.  So, there's no stop-line where you can no longer process a nomination.  And I think we will see this nomination continue, whether the vote is before or after the election."

Stalling Could Work, but also Blow Up in Their Faces

So about the only thing Senate Democrats could do if Biden should win November 3 is try to stall and drag out the confirmation process until Inauguration Day in January.

But this is a subject Severino is well familiar with as the co-author of "Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court."

"Stalling was definitely their technique during the Kavanaugh confirmation process.  I think it'll probably be their technique again," Severino guessed, but pointed out, "Last time it appeared to backfire.  Last time they pulled out all the stops and I think the American people were frustrated with the circus and particularly the smear campaign that was launched.  So if they overplay their hand again, I think that's going to come back to bite them."

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