Friday, February 06, 2009

Ruth Bader Ginsburg

News that Ruth Bader Ginsburg has been diagnosed with early-stage pancreatic cancer and undergone surgery at New York's Sloan-Kettering Hospital to treat this particularly aggressive and difficult form of the disease is not how anyone who has admired her career -- and even those with have disagreed with her on the issues -- would want to see it end. Since Thurgood Marshall retired from the Supreme Court in 1991, Ginsburg, chosen in 1993 to replace John F. Kennedy-appointee Byron White, has been the only justice to serve on the high bench who can claim to have represented Americans who felt shunned and excluded by the political system. Of the four justices described as the Court's "liberals," -- the others are John Paul Stevens, David Souter and Stephen Breyer -- Ginsburg is the only one whose pre-judicial career was devoted to advocacy on behalf of what political scientists and legal academics call "outgroups," or people who found themselves discriminated against as a matter of policy and had little or no recourse through the political system to right the wrongs to which they had been subjected. From the Court's conservative wing, a grouping much more conservative than the liberals are liberal -- bear with me, please --only Chief Justice John Roberts has had any extensive experience as an advocate. And his client-base was not exactly drawn from those on the margins of our nation's political, legal and social mainstream -- quite the opposite, in fact.

Justice Ginsburg has been cancer before, in 1999, when she was treated for colon cancer and, true to her fighting spirit, didn't miss a day of oral argument. Ginsburg has said she intends to return to the bench when the Court takes up oral argument again on Monday, February 23rd. Let's hope she's right. Ginsburg's presence on the Court is not just about a reliable vote on behalf of is more accurately described as the Court's status quo ante wing, or justices whose primary goal has been to preserve, where possible, the law on civil rights, liberties and, more recently, presidential power and federalism from efforts by the conservative justices to reshape, at minimum, and, where possible, to dismantle key precedent in those areas. The nation's second female justice is also the only link to a moment in time where bright and talented young lawyers viewed the law as a means to bring the marginalized into the mainstream of American life. Compare that to now, when just as many bright and talented young lawyers with a different political bent are crashing the judicial system at all levels to protect the racially, religiously and economically privileged.

I have never subscribed to the conventional view that Ruth Ginsburg is the "feminist equivalent" of Thurgood Marshall. That comparison is unfair to both parties. No matter how difficult life was for women seeking to enter politics, the workforce or education on the same terms as men, their plight did not compare to the African-American condition in pre-1960s America. Whatever they couldn't do, women -- and white women at that -- could, for starters, still vote, attend public schools, sit anywhere they wanted in public accommodations and go to the court. They weren't found hanging from trees for daring to express their opinions or disproportionately punished in the nation's criminal justice system because of their gender. Marshall and Ginsburg are linked by their common experiences as liberal public interest advocates. Attempting to elevate one at the expense of the other diminishes both their legacies.

This much is true, though. Ruth Ginsburg may be the last Supreme Court justice to spend the formative years of her career on the advocate's side of the podium. Sure, the current justices are all smart and accomplished individuals. But, without exception, their careers have taken the familiar path of the high-status Washington lawyer-turned justice -- a pre-judicial life spent in think tanks or government agencies debating legal abstractions with very little understanding how a life mind-numbing, intellectually deceptive panel discussions and ultimately self-satisfying exchanges about "the law" actually affect real people. If you think it's ridiculous, as I do, to pay much attention to what soft-money funded economists from the Heritage Foundation, Cato Institute or Brookings Institution "think" is best for unemployed workers who will never return to their jobs -- and health care plans -- from dying industries, then extend that analogy to judges who have never had a door slammed in their face or endured the ugliness of private and public discrimination. President Barack Obama might well be tested sooner than he expected on what kind of nominee he thinks best suits the contemporary Court. My unsolicited advice to our new president is this: remember Oliver Wendell Holmes, Jr.'s admonition that the "life of the law has not been logic; it has been experience." Obama will not trivialize Ginsburg's career the way that President Bush I did Thurgood Marhsall's by appointing the equivalent of Clarence Thomas to succeed her. In law, like in everything else, experience matters -- especially the kind that connects to people as they really live, not just jurists, professors and think-tankers believe they should.

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