Justice Ruth Bader Ginsburg seems to have settled on a response to the liberals who have urged her to step down now so that President Obama can appoint her successor:
It’s probably already too late in the poisoned atmosphere of Capitol Hill.
“So who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?” Ginsburg asked rhetorically in response to a question posed by the Associated Press’s Mark Sherman in an interview Thursday afternoon.
The 81-year-old justice said almost exactly those words to Joan Biskupic of Reuters that same afternoon. Ginsburg added that she had lunch with Obama last summer at the president’s invitation but that she doesn’t think he was “fishing” for her retirement plans.
If so, she probably would have given the same response she gave Katie Couric, who broadcast an interview with her on Yahoo! News, also on Thursday.
“All I can say is that I am still here and likely to remain for a while,” she said. In the past, Ginsburg has said she had a role model in Justice Louis Brandeis, who retired at 82. Now, she says, she’ll take it year by year and stay “as long as I can do it full steam.”
Don’t think that the cluster of interviews is a coincidence. Just as she did last summer — in conversations with The Washington Post, New York Times and others — Ginsburg had some points to make before departing for her annual late-summer binge of family and opera.
While some of her colleagues would rather write a term’s worth of tax law decisions than sit down with reporters, that has never been true for Ginsburg.
She uses the opportunities to stake out positions, express disappointment in the decisions of her colleagues and — most of all — make clear that she is enjoying her role as the leader of the court’s liberals and is not ready to give it up.
“Thank goodness I haven’t slowed down,” she told Reuters. Ginsburg battled cancer in 1999 and 2009 but told her interviewers she is cancer-free and continues to work out with her trainer.
She was cagey about what she and Obama talked about and why he might have invited her. “Maybe to talk about the court. Maybe because he likes me. I like him,” Ginsburg said.
She has made that clear before. On one of the walls in her chambers is a photo of Obama hugging her before delivering a State of the Union address. Her son, who lives in Chicago, had brought Obama to her attention when he was still in Illinois politics, and Ginsburg requested to be seated next to him at a dinner after Obama was elected to the Senate.
Asked what Obama would think about whether she should retire, Ginsburg said: “I think he would agree with me that it’s a question for my own good judgment.”
Ginsburg has had other things on her mind as well in recent interviews. She told the AP that she felt that by June 2016 — if not sooner — the court will have supplied the answer as to whether state bans on same-sex marriage are unconstitutional, a question the court sidestepped in 2013.
She predicted the justices would not delay as they had in rulings on interracial marriage.
“I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” Ginsburg said. “If a case is properly before the court, they will take it.”
And she said, in various ways, that her male colleagues displayed a “blind spot” in the court’s recent Hobby Lobby decision. The court ruled 5 to 4 that some private companies do not have to cover in their employees’ insurance plans all contraceptives for women, contrary to requirements of the Affordable Care Act, if doing so would violate the religious beliefs of the companies’ owners.
“I have no doubt that if the court had been composed of nine women the result would have been different in Hobby Lobby,” Ginsburg said.
That said, she told Couric, “justices continue to think and can change. They have wives. They have daughters. By the way, I think daughters can change the perception of their fathers.”
She might have been referring, as she had done before, to former Chief Justice William H. Rehnquist. Ginsburg said she believes the single-mother experiences of Rehnquist’s daughter changed the conservative justice’s views over time.
Ginsburg’s outspokenness is not always well-received. Some court commentators say it is inappropriate for justices to be so expansive off the bench, although her friend on the other side of the court’s ideological divide, Justice Antonin Scalia, can be equally loquacious.
Ed Whelan, a conservative commentator at National Review Online, critiqued Couric’s interview as being filled with softball questions. He said the media would have been outraged if President George W. Bush had invited Rehnquist over for lunch.
And others have pointed out that several female lower-court judges voted just the way the Supreme Court’s male conservatives did in the Hobby Lobby case.
Ginsburg seemed to agree that gender is hardly determinative in court decisions.
Asked in the Reuters interview whether, when she finally does retire, she should be replaced by a woman, Ginsburg said not necessarily.
“There are some women I definitely would not want to succeed me,” Ginsburg said. But she added, “A man like (former justice) David Souter, that would be great.”