Justice Ginsburg’s Staying Power

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Justice Ruth Bader Ginsburg opened a speech at the American Bar Association in San Francisco this week by observing, “I have lived long enough to see great changes in our profession.”

A question I’ve heard many times in my travels this summer is how much longer Justice Ginsburg, age 77, a cancer survivor and now a widow, will serve. Watching Justice Ginsburg on Monday (see the ABA video here) and following her activities since the death of her husband, Martin, I believe she will not step down in the next two years and is ready for the long haul, eager to see more changes in the law and profession.

That means it is likely President Obama’s Supreme Court nominations for a first term are over and that, after four appointments in five years (John Roberts, Samuel Alito, Sonia Sotomayor, Elena Kagan), we will see a new period of stability at the Supreme Court.

Justice Ginsburg has been saying for years (most recently in an interview this month with the Associated Press’s Mark Sherman) that she wants to serve as long as Justice Louis Brandeis. Brandeis, who sat 1916-1939, racked up nearly 23 years and retired at age 82. Now age 77 and a 17 year veteran of the Court, Ginsburg has survived two rounds with cancer, most recently pancreatic cancer in 2009. Through her treatments, she kept up an energetic speaking schedule and remained one of the most active justices on the bench.

At the ABA, she looked healthy and seemed as spirited as ever, despite the June death of her husband of 56 years. She addressed the great change in the profession since the 1960s with the influx of women, who are no longer rare “curiosities at the bar.” Ginsburg graduated from Columbia law school in 1959, after first attending Harvard 1956-58. (She transferred when Martin graduated and got a job in New York.)

In San Francisco, Justice Ginsburg referred to the support for her career that she received from her husband, who died June 27, the day before the last sitting of the Supreme Court’s 2009-10 term. Even in her grief, Ginsburg took the bench that last day. I could not help but recall all the other times she had been so tested in her family life. Her mother died of cancer the day before her high school graduation. And while she and Martin were at Harvard, he was diagnosed with cancer. She helped him complete his studies as he recovered. She was also caring for their infant daughter at this time.

As she received the ABA Medal, the group’s highest honor, Ginsburg noted that “my only sadness” is that Martin did not live to see the day. But the justice said that her husband had known of the award before his death and had said “he would be cheering for me.”

Justice Scalia was not on the bench last Thursday, when the Supreme Court, nearing the end of its term, handed down five decisions. When I inquired, I discovered that he had been at Langley High School in McLean, Va., to speak at the graduation of a grandchild. I was curious about his remarks, especially because I had just given the commencement address to graduates of the National Cathedral School in Washington, D.C. 

My audience at the all-girl private high school was different from Justice Scalia’s and my approach more personal. I didn’t expect much overlap in the speech themes, yet I was curious about what Justice Scalia had said and the voices of wisdom he drew on. 

Justice Scalia opened with his signature brand of humor: “Giving a commencement address is not as safe an enterprise as it used to be. I am told that the graduating classes in some schools, to while away the time as the speaker drones on, have devised a kind of contest, with an appropriate prize, to see who can write out in advance the greatest number of the platitudes that the speaker will deliver.” He said the exercise has been likened to playing Bingo. 

Justice Scalia then sought to debunk several platitudes, beginning with that students today face “unprecedented challenges.” Not true, he said. Things have always been pretty bad. “Today, to be sure, we have the capacity to destroy the entire world with the bomb. I suppose you can consider that a new problem, but it is really new in degree rather than in kind. If you were a teenager graduating from the Priam Memorial High School, in Troy, about 1500 B.C., with an army of warlike Greeks encamped all around the city walls; and if you knew that losing the war would mean, as it did, that the city would be utterly destroyed, its men killed, its women and children sold into slavery – I doubt that that prospect was any less terrible to you than the prospect of the destruction of the world.” 

My remarks were specifically addressed to young women about to make their way in the adult world. I invoked the experiences of Justices Sandra Day O’Connor and Ruth Bader Ginsburg and other “firsts” I’ve known in law, publishing and academia. While I reminded the graduates of the sex discrimination that still exists even in 2010, there probably was little I said that would have been deemed cynical. (I have to admit that I did find a way to work in one of my favorite New Yorker cartoons, one that captures the zero-sum-game attitude of Washington. In it, one dog says to another, “It’s not enough that we succeed. Cats must also fail.” This, I heard later, amused the lawyer-parents in the audience.) 

Justice Scalia quoted English philosopher Lord Acton and, from the Federalist Papers, James Madison. I gave the most air time to some thoughts from the late lyricist and Broadway producer Oscar Hammerstein, whose essay from the original “This I Believe” series I’d recently heard on the radio. Hammerstein opened his essay this way: 

“I have an unusual statement to make. I am a man who believes he is happy. What makes it unusual is that a man who is happy seldom tells anyone. The unhappy man is more communicative. He is eager to recite what is wrong with the world, and he seems to have a talent for gathering a large audience. It is a modern tragedy that despair has so many spokesmen, and hope so few.”

Having experienced the death of loved ones and much despair about his work, Hammerstein said he could easily present a case to prove he was not happy.

“I could,” he said, “but it would be a false picture, as false as if I were to describe a tree only as it looks in winter. I would be leaving out a list of people I love, who have not died. I would be leaving out an acknowledgement of the many successes that have sprouted among my many failures. … I would be leaving out my faith that the goodness in man will triumph eventually over the evil that causes war.”

Hammerstein earned a law degree from Columbia University. But fortunately the man who went on to produce such shows as South Pacific, Carousel, and Showboat left the law for the theater. He gets the last word.

For years, Supreme Court justices, lower court judges and law professors have argued over the merits of Scalia’s approach to constitutional interpretation. Yet last weekend in a commencement speech at Harvard, retired Justice David Souter offered a powerful counterpoint to “originalism” that might eclipse those arguments by virtue of the setting and timing.

 “Even a moment’s thought is good enough to show why it is so unrealistic,” Souter said in his dry, direct manner. “The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. … But this explanation hardly scratches the surface.”

Speaking before thousands of graduates under a blue sky, he added that, “The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony.”

It is precisely that tension that brings cases to the marble steps of the nation’s highest court. Scalia has always professed that his approach — tied to the 18th Century understanding of the text — is straightforward, even easy, because the answers are right there and judges’ values need not enter the mix.

Souter dismissed that out of hand and concluded: “The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. …. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”

Now, debate over originalism is hardly new. Justice Breyer wrote a whole book, Active Liberty (2005), countering Scalia. And two years ago, in a case testing whether the Second Amendment holds an individual right to bear firearms, District of Columbia v. Heller, originalism was the backdrop. Scalia prevailed with his reading for an individual right to handguns. In dissenting opinions, both Justice Breyer and Justice Stevens (from different angles) wrote at length against Scalia’s interpretation. Justice Souter, who was still on the Court then, dissented but did not write separately.

Yet now, retired and shed of his robe and the yoke of a particular case, Souter in a single speech may be more effective against Scalia’s originalism.

Washington Post columnist E.J. Dionne, who wrote admiringly of Souter’s Harvard speech, says it has received far too little attention. But I would bet that changes.

Souter’s timing seems just right. We are entering a confirmation season (Elena Kagan’s Senate Judiciary Committee hearings begin on June 28), and large constitutional questions will be in the air. We are also nearing the end of another Court term. Among the many awaited cases is one (McDonald v. City of Chicago) requiring further interpretation of the Second Amendment.

Souter’s sharp words, delivered while wearing a cap and gown, rather than a black robe, are likely to reverberate louder.

Rehnquist: Stopping to Smell the Roses

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After I wrote last week about the justices and graduation speeches, a longtime Supreme Court employee reminded me of the late Chief Justice William Rehnquist’s advice for graduates: Stop and smell the roses. “Do not let the law be too jealous a mistress,” he used to say. “You must give yourself time not only to do a variety of things, but to allow yourself time to appreciate and enjoy what you are doing.”

A leader of the Court’s conservative revolution, Rehnquist cut a stern, sometimes cold, figure in the courtroom. Yet he had plenty of friends, liberals among them, outside the marble columned building. He was a man of many interests, travels and recreational pursuits.

Some of Rehnquist’s best tales were recalled against the backdrop of a party, charade game or travel adventure. He told me that the offer to be an assistant attorney general in the Nixon Justice Department (the job that first brought him to Washington) was made by his old Phoenix pal Richard Kleindienst (deputy to Attorney General John Mitchell) at a Christmas party. One of Rehnquist’s favorite stories of time with Sandra Day O’Connor’s family arose from a shared two-week pack trip along the Gila River. The Rehnquists and O’Connors also played regular charades and bridge together in Phoenix.

In Washington, Rehnquist took up painting and once missed a State of the Union address because it conflicted with his evening art class. In 1995, when he had four gold stripes sewn on each sleeve of his black robe, he was copying a character in Gilbert and Sullivan’s “Iolanthe.” Rehnquist drew on a set of “Iolanthe” lyrics for one of his favorite quips, too: “I did nothing in particular, and I did it very well.”

Rehnquist, in fact, lived large and beyond his legal interests.

Earlier this month, NBC’s Norah O’Donnell asked me on the Chris Matthews’s show if I thought — as some critics did — that Elena Kagan was too “programmed,” too ambitious and calculating in her climb up the legal ladder. My response was that no one gets to the Supreme Court without ambition and that Washington is filled with such focused people who never step outside predictable lines. But in recalling Rehnquist, I’m thinking that maybe it wasn’t always that way.

Graduation Apprehension

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When I was doing research some years back in the files of the late U.S. Appeals Court Judge Skelly Wright, of the District of Columbia Circuit, I came across an exchange between Wright and Justice William Brennan in which they shared their apprehension about giving Commencement speeches. These two giants in the law had regular-Joe worries about boring the graduates and having their words fall flat.

I’ve been thinking about their Commencement aversion this season because I am giving two speeches and have found that for those of us down some rungs, the mental burden is much lighter. We can plumb their most intriguing thoughts to make our points.

I spoke Saturday at Marquette University Law School’s Hooding Ceremony, and – focused on the importance of preparing to be challenged ethically and avoiding the fallacy that you automatically make the right choices – I turned to something Chief Justice William Rehnquist had told me related to the Watergate scandal. The break-in at the Democratic headquarters that led to the cover-up and fall of President Richard Nixon in 1974 occurred in June of 1972. Only five months before that precipitous incident, Rehnquist had left the Justice Department and taken his seat on the Supreme Court.

Several of Rehnquist’s former colleagues ended up embroiled in Watergate, indicted and convicted. In fact, when the Watergate tapes case came to the Court in summer 1974, Rehnquist recused.

Rehnquist told me he was relieved to have been gone from the Justice Department when the Watergate cover-up occurred. And he said something interesting about the temptations he might have faced if he had remained behind. “You presume you will do the right thing,” he said, “but you never know how you might handle the pressure at the time.” Rehnquist spoke of potential pressure from his bosses and of simply being caught up in a bad situation while thinking you are doing good.

It occurred to me then, and many times since, what a wise thought this was. None of us can presume we are immune from the pressures of politics or money or any of the enticements that come to people who have power — but that especially come to lawyers.

Since President Obama’s nomination of Elena Kagan last week to succeed retiring Justice John Paul Stevens, there has been a lot of talk about whether she would be a persuasive force in moving Justice Anthony Kennedy to the left. I’ve felt that much of this discussion ignores the limits of a new, junior justice, and I think Monday’s decision in the juvenile sentencing case offers a reminder of Justice Kennedy’s own force.

Kennedy wrote the Court’s decision that declared for the first time that juvenile offenders cannot be locked up without a chance of parole for crimes that do not involve homicide. (Read stories on the ruling here and on Kennedy here.) The decision in Graham v. Florida demonstrated Kennedy’s continuing role as the crucial fifth vote on the Court, as well as his dominant voice on the Eighth Amendment, which prohibits cruel and unusual punishment.

Monday’s decision flowed from two earlier Kennedy opinions, the 2005 Roper v. Simmons, which forbade the death penalty for juvenile criminals, and the 2008 Kennedy v. Louisiana, which prohibited the ultimate punishment for the crime of child rape.

As Kennedy, joined by the Court’s four liberals, extended the reasoning of Roper v. Simmons beyond the realm of capital punishment Monday, he wrote, “It is true that a death sentence is unique in its severity and irrevocability, yet life without parole sentences share some characteristics with death sentences that are shared by no other sentences.” Life without a chance of parole, he said, “deprives the convict of the most basic liberties without giving hope.”

Chief Justice John Roberts tried to make the case – beginning with his remarks at last November’s oral argument and then in his separate opinion in Graham – for an individualized approach, rather than a blanket rule against life-without-parole. But Roberts could not persuade Kennedy. And while senior liberal Stevens can often be credited with convincing Kennedy to join those on the left, in this Eighth Amendment dispute over penalties for young offenders, Kennedy was – more likely than not — already there.

With only two women among the nine justices, one line of thinking goes, President Obama will pick a woman. No, another argument goes, he would not feel so compelled and, anyway, he should save his strongest woman candidate for when pioneering feminist Justice Ruth Bader Ginsburg, 77, retires.

The president needs to go young, for his own legacy at the Court. No, age doesn’t matter, and isn’t 60 the new 50 anyway? What about religion? With the one Protestant (John Paul Stevens) retiring, the president can’t appoint another Catholic or Jewish justice, can he? But who these days would object to a nominee based on her (or his) religion? What about a nominee beyond the “judicial monastery,” as Senate Judiciary Committee Chairman Patrick Leahy likes to say? Yet what about all the baggage a governor or other politician might bring to the confirmation hearings, not to mention the problem with getting up to speed on the Court. And on that score, shouldn’t President Obama choose someone who can win over centrist conservative Anthony Kennedy? Or, should he focus on finding a “Scalia of the Left”?

Such are some of the many scenarios that preoccupy journalists these days. Just as I am at the point that all theories spawn counter-theories and I have over-thought the whole thing, I am reminded that President Obama likely knows more about constitutional law than any president and is coming at this in his own distinct way. Obama is one of only two U.S. presidents who graduated from Harvard Law School. Rutherford B. Hayes was the first. Obama was elected to the top editor position (president) of the Harvard Law Review, the first African American to attain such an honor, and he went on to teach constitutional law at the University of Chicago.

“Overall, Obama has, and had then, a problem-solving orientation,” Harvard Law Professor Laurence Tribe, a mentor to Obama in Cambridge, told David Remnick for his new book The Bridge. “He seems not to be powerfully driven by an a-priori framework, so what emerges is quite pragmatic and even tentative. It’s hard to describe what his presuppositions are, other than that the country stands for ideals of fairness, decency, mutual concern, and the frame of reference that is established by our founding and the critical turning points of the Civil War and the New Deal, as a frame to identify who we are. When Earl Warren was Chief Justice, he would ask, after an oral argument, ‘But is it fair?’ For Barack, the characteristic question is, ‘Is that what we aspire to be as a country? Is that who we are?’”

Last year, President Obama made the choice of Sonia Sotomayor essentially on his own. He weighed advice from staff, interviewed finalists, made a preliminary choice, and then spent a weekend making sure he was satisfied. No doubt he’ll follow a similar pattern this time, whatever narrative most appeals to him and whoever best meets the question of “who we are.”

Could Freud Help the Supreme Court?

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It has now been two weeks since Justice John Paul Stevens announced his retirement, and from last year’s pattern and what White House aides are saying now, numerous interviews already have been conducted. About ten people are in the mix, with three inside favorites: U.S. Solicitor General Elena Kagan and U.S. Appeals Court Judges Diane Wood, of Chicago, and Merrick Garland, of Washington, D.C. Last year, within about two weeks of Justice David Souter’s May 1 retirement announcement, then-Judge Sonia Sotomayor had been interviewed by a half dozen top administration lawyers. President Obama interviewed her on May 21, offered her the job on May 25, and made his choice public on May 26. Read her dramatic recounting of his call to her here.

President Obama is weighing what he wants in a justice this time around and how much of a fight he can expect with Republicans – who’ve already thrown up plenty of hurdles to his lower court nominees. (My early take on his dilemma is here.) Last week I was on a panel at New York University that explored some of Obama’s choices as we primarily considered how a justice’s life experiences influence his or her decisions.

 The most senior member of our group, NYU Professor Norman Dorsen, who was a clerk to Justice John Marshall Harlan (1955-1971), talked up the value of a multitude of backgrounds on the bench. Harlan served with former California governor Earl Warren, former Attorney General Tom Clark, and former Securities and Exchange Commission member William O. Douglas. Harlan had been a prosecutor, long-time member of a Wall Street firm and, briefly, a U.S. appeals court judge. All nine of our current justices, of course, were U.S. appeals court judges (and not briefly) before being elevated to the Supreme Court.

George Washington Law Professor Jeffrey Rosen offered the most provocative argument of the day, saying that as much as life experience matters for a justice, it is “ultimately less important than the relationship with Mommy and Daddy.” He used Stevens as an example. He said that he was sure the justice was shaped, for example, by his World War II service. But he said he found more determinative to Stevens’s rise and actions on the bench that his mother constantly spurred his ambition by saying he’d never be as good as his Chicago businessman father. So, Rosen quipped, with a nod to Sigmund Freud, he hoped Obama’s vetters were not just reading candidates’ rulings but looking at relationships with Mom and Dad. Watch the discussion moderated by Barry Friedman, whose book on the Court, The Will of the People, came out last fall, here. And look for a nomination around the second week of May.

Now that President Obama has officially launched the process to replace Justice Stevens, who announced his impending retirement on Friday, it is interesting to recall the approach President Ford took in 1975. While it represents a more non-ideological model than today’s Supreme Court selection process, there are likely to be similarities in administration screening, timing — and an eye to the political atmosphere in the nation. 

Justice William O. Douglas, who had been in failing health for months and being pressured by some colleagues to retire, wrote to Ford on November 12, 1975 to let him know he would step down. (Douglas had served since 1939; he holds the record for longevity on the bench.) 

Attorney General Edward Levi shepherded the process to name a successor. (This time around it will be Obama’s White House Counsel, Robert Bauer.) Levi gave Ford a list of ten candidates, which he and his staff had pared down from a field of twice that number. Levi also included a personal note that said the top three on which he “would place greatest emphasis” were U.S. Appeals Court Judge Stevens, Solicitor General Robert Bork, and Dallin Oaks, who was then president of Brigham Young University. Ford also initially was drawn to U.S. Appeals Court Judge Philip Tone, who, like Stevens, was on the Chicago-based 7th Circuit. 

Levi and the rest of the team had set an informal age limit of 55. Stevens was exactly that. Levi, who knew Stevens from Chicago legal circles and steered Ford particularly to him, deemed Stevens “a judge of the first rank, highly intelligent” and “a moderate conservative in his approach to judicial problems.” Of Bork, who was known for his legal brilliance yet had played a controversial role in the 1973 Watergate-related “Saturday Night Massacre,” Levi said, “If Mr. Bork was appointed to the Court, there would be little doubt of his intellectual capacity for the work. There would be equally little doubt that, on the Court, Mr. Bork would provide strong reinforcement to the Court’s most conservative wing  … .” 

President Ford did not want an ideological lighting rod. He put a little “No. 4” next to Bork’s name on the list he carried around. He gave Stevens “No. 1” and penned himself a separate note regarding Stevens: “Supreme Ct – good man.” 

Stevens’ name was announced November 28, a little more than two weeks after Douglas had made his retirement official. (Then, as now, administration aides had been working on their lists months before the official retirement announcement.) In 1975, many House and Senate leaders did not know the low-key Stevens, so initial reactions were dominated by questions. House Majority Leader Tip O’Neill said, “Who? … I never heard of him.” 

Senate Majority Leader Mike Mansfield asked whether the reputed moderate  jurist would “cause trouble with the Reagan people,” known for their highly charged conservatism and preparing to mount a presidential challenge to Ford.

Today, the Obama administration cannot help but take account of upcoming elections, weighing how a nominee might fare in confirmation hearings that would be held as the midterm campaign season begins and how Obama’s Court choice could then help or hurt Democrats in the fall elections.

A colleague who covers the Court asked that in an e-mail today. He said he had thought that Justice John Paul Stevens was ready to retire at the end of this term but said the justice’s recent remarks might be read as a signal he truly is undecided and may stay. My response: He’s leaving.

I base that not only on what Justice Stevens has said in interviews but that he is even giving interviews.

Justice Stevens does not like to talk about himself. I have interviewed him several times over the years but mostly under circumstances focused on other people, for example, in 2001, when a Stevens friend and former associate (Kenneth Manaster) wrote a book on a 1969 judicial investigation in which Stevens played a key role, or when I needed information on Sandra Day O’Connor and Antonin Scalia. Only recently has Stevens indulged questions centered on his own work and legacy.

When I saw Justice Stevens in his chambers last week and asked about his retirement plans, he said, “I still like the job, there’s no doubt about it. That’s why I still keep my options open.” With some disbelief, I said to him, “Have you really not yet decided?” He responded, “Wait and see.”

His remarks on retirement were in keeping with what he had told me last October in an interview and what he told the New Yorker, New York Times and Washington Post in recent weeks.

I think the fact that Justice Stevens says he is torn reveals how hard it is for someone who loves his job — and has been at it for nearly 35 years — to say he is packing up his briefcase for good. I think he might also think it is better to wait a little longer into the term, perhaps until after oral arguments, which conclude on April 28. (He turns 90 on April 20.) In the past, retiring justices did not announce they were stepping down until the end of the term in late June, after all the decisions had been issued (see my post of February 16). In recent years, some justices have announced in early spring, partly to give the president more time to choose a successor. David Souter made his decision public on May 1 last year, in large measure, however, because it had leaked out.

Although Justice Stevens is now more willing to talk about himself in interviews, it is still like yanking teeth. He tends to be a one-sentence-answer kind of guy. He has a steady approach, a flat Midwestern twang — and nothing especially riles him. That is the exact opposite of Justice Scalia, who I happened to visit after my interview with Stevens. When Stevens does retire, Scalia will become the longest tenured justice on the bench.

Stevens abhors the conservative shift in the Court, yet he talks about it with a shrug: “There are a lot of cases that I’m disappointed with and I think they (the majority) make mistakes. But you learn to live with it.”