Fault Lines
17 May 2017
silberman rbg

Judge Silberman to Notorious RBG: Shut Up!

March 3, 2017 (Fault Lines) — Justice Ginsburg reminds me of my grandmother. My grandmother would have been almost the same age as Justice Ginsburg. She was a first-generation American, born and raised in Manhattan. So, like our President, she said ‘yuge,’ which is how my mother pronounces it to this day. While I cannot recall Ginsburg saying it that way, it’s probably a safe bet. Like the Justice, my grandmother was always willing to speak her mind, uninvited and often unwanted. She would be brutally direct and remained that way until near the end.

But my grandmother was never nominated by the President of the United States and confirmed by Congress to be an Associate Justice of the Supreme Court. Ruth Bader Ginsburg was. Nor was my grandmother turned into a liberal icon by the media. When my grandmother complained about something, only her family, friends, and bridge club had to hear about it. The microphone of an Associate Justice is much, much louder, and her words carry much further.

So, when, as Justice, you complain about a Presidential candidate, it’s news:

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

Although Adam Liptak said the Justices rarely grant interviews, Ginsburg gave another shortly afterwards:

“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

A lot of people said similar things about Trump, but there are only nine Justices, which makes her statements newsworthy. Ginsburg later said sorta sorry, but it was hard to see even that as genuine. Making a flippant statement once is a mistake, giving substantially the same comments to two different news outlets seems purposeful.

Recently, Laurence Silberman, Ginsburg’s former colleague on the D.C. Circuit, spoke about Ginsburg’s comments. In a Wall Street Journal op-ed, which was adapted from a speech he gave, Silberman lays a lot of blame at the feet of the press:

A major factor was the influence of the press. Hence the “Greenhouse effect,” referring to Linda Greenhouse, who covered the justices for the New York Times. The Supreme Court press is increasingly dominated by lawyer-journalists who reflect the change in the composition of law-school faculties, which are now almost uniformly left-activist. That political flavor was recently demonstrated by the stunningly uniform opposition at law schools to the nomination of Jeff Sessions as attorney general.

Like the ‘Streisand Effect,’ this is not a positive appellation. Sure, the legal academy is left-activist or progressive. And the press increasingly sees its role as advocacy, rather than reporting. These folks hope that through public shaming and out-grouping, they can get the Supreme Court (and others) to bend to their wishes. It’s a point of view that Presidents Obama and Trump appear to share, both of whom were publicly critical of the federal judiciary.

But the ‘Greenhouse effect’ is an insufficient explanation. Eventually, the power bill needs to get paid. And promises to advertisers buying time on a 24-hour cable network need to be fulfilled. So the news outlets need to get eyeballs reading and watching their stuff. In turn, this means that the press is always competing for our attention. Good entertainment needs storylines, such as fights between Ginsburg and Trump.

So, it ends up that everybody is using everybody for their own ends—no one is an innocent bystander. Greenhouse is being used by sales; Ginsburg is being used by Greenhouse to create an appealing story; and the audience is being used by Greenhouse, Ginsburg, and sales, each for their own reasons. It’s a perverse application of Adam Smith’s butcher’s beneficence, but everyone seems to get what they want out of the deal.

Thus, Silberman is wrong to act as if Ginsburg is merely a dupe or useful idiot for the press. Somebody shoved a microphone in her face, and she got her thoughts in front of a wide audience. And it’s quite likely that most of her friends approved of the content of her statements.

The nation heard Ginsburg’s thoughts. Most of us have to be content with social media posts that get likes from our mom and our second-grade teacher. She’s not a victim; she’s a willing participant in the game of ‘look at me!’ Don’t think so? Days ago, she again alluded to her distaste for Trump. She kissed the media and liked it.

Silberman goes on to criticize Ginsburg for discussing her support for Merrick Garland’s nomination, and speaking out (approvingly) on how Scalia’s death influenced the outcome of cases. This upsets Judge Silberman:

It showed how much the decision-making on the Supreme Court had become result-oriented, at least on the part of some justices. But I thought it terribly sad. I knew Justice Ginsburg once as a disciplined, relatively restrained colleague on the District of Columbia Circuit, and therefore I regret very much her evolution.

It’s like he’s never heard of Judge Posner or of Lord Acton. The Supreme Court is frequently asked to resolve issues that the other branches have failed to solve themselves or have punted to the courts for political expediency.

Thus, it is at least comprehensible how members of the Court can begin to see themselves as political actors. Because really, what about a law degree makes you more competent to opine on marriage, abortion, or any other hot-button social issue? Far too often, even judicial fact-finding is fed through a political lens, to say nothing of the more mysterious legal arts.

So, it often boils down to ‘somebody has to decide this issue; we’re somebody; so, we’re going to decide this issue.’ After all, they’re the only ones donning sacramental robes. At the level of the Supreme Court, it appears increasingly difficult to ignore personal policy preferences, particularly over time.

Silberman concludes by discussing his worry about the irreversible damage Ginsburg has done. The institution survived Dred Scott, Plessy, court-packing, and others. It’s difficult to imagine that one Justice can damage the institution. Frankly, if it’s that fragile, then we’d best scrap it and start over.

Still, I understand where Silberman is coming from. We want to believe that judges will be umpires, calling balls and strikes. He appears to see himself as that type of person—interested in the law but disinterested in the parties. But, on the other hand, we want to believe that a judge will order the federal marshals to protect children being integrated into a new school. In the exercise of power like the latter case, it’s far too easy for personal policy preferences to creep in.

After decades of trying to balance the two poles of Hercules and the Umpire, it’s understandable that judges, specifically the Justices, might come to favor one role over the other. But that’s a failing of the judge, not the media. It’s likely that the attention Justice Ginsburg gets from SNL, media, fawning law professors and students, as well as others, influences her behavior. And developments like David Lat’s Underneath Their Robes and ‘Article III groupies’ were probably not a terribly positive one for the judiciary.

Yet, she’s still responsible for what she says or does. Silberman wants to protect her from herself, but he can’t effectively do that without squarely criticizing her. Justice Ginsburg isn’t my grandma, who couldn’t get a New York Times reporter to cover her if she was on fire. Ginsburg’s problem is not the press influencing her to be indecorous. Her problem is that she likes talking to the press about whatever is on her mind. And if that makes her a bad justice, then let’s quit making excuses for her and instead call shenanigans.

2 Comments on this post.

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  • RICHARD KOPF
    3 March 2017 at 10:01 am - Reply

    Andrew,

    I really, really enjoyed reading this post.

    Silberman is correct that RBG broke some china. But, it was only a teacup or two. But Scalia was also known for some very public china breaking himself. And, of course, there is Posner too. We could throw in Judge Bennett and Judge Kane and me too.

    Do judges like RBG or Scalia or Posner and others write and speak publicly ’cause they grave attention or because they are truly endeavoring to educate and also let the public see through the misty mystic of judging? My view is that it is probably a bit of both.

    I have a rule of thumb (which I frequently break) when I write for public consumption. It is: Make an effort to know your motivation.

    If you have ever seen a top-flight therapist (as I have and do now), you learn the mind will never allow you to fully understand why you do what you do. But, you also learn that trying to honestly assess your motivation is worth the effort anyway.

    So, if I were so bold as to give advice to RBG (and others), it would be this. It is OK to keep breaking the china, but please ask yourself why you are doing so.

    All the best.

    RGK

    PS Is this both “awkward” and too much information?

  • David Meyer Lindenberg
    3 March 2017 at 2:40 pm - Reply

    Maybe my favorite ever post at FL, Andrew. Superb work.