Justice Ruth Bader Ginsburg, who’s previously hinted that she would retire from the Supreme Court in 2015, told Reuters’ Joan Biskupic last week that Court watchers shouldn’t gear up for a confirmation fight quite yet. Indeed, Ginsburg now labels Justice John Paul Stevens, who retired at age 90, as her new “model.”
The 80 year-old justice’s announcement certainly raises the stakes for the next presidential election, but it also extends the period that the Supreme Court’s most accomplished litigator will remain on the Court. Even before joining the bench, Ginsburg was the single most important women’s rights attorney in American history. She authored the first brief to convince the Supreme Court to hold that the Constitution’s guarantee of “equal protection of the laws” applies to women. And her brief in Craig v. Boren led the Court to hold that laws that engage in gender discrimination are subject to heightened constitutional scrutiny. Next to Thurgood Marshall, the late Supreme Court justice who argued Brown v. Board of Education, it’s unlikely that any other future justice did more for the cause of equality than Ginsburg did before joining the Court.
For this reason alone, the president tasked with replacing Ginsburg will be hard-pressed to find a similarly accomplished lawyer. Admittedly, there are potential Supreme Court nominees who have won major women’s rights victories — the most notable being United States Court of Appeals for the District of Columbia Circuit nominee Nina Pillard, who argued and won Nevada Dept. of Human Resources v. Hibbs. But Hibbs merely warded off an effort to convince the Court to reduce existing legal protections for women (and men) with families. For most of American history, the Supreme Court has shown little interest in improving the lives of the marginalized, and Ginsburg rose to prominence during a rare period when the justices were actually interested in expanding the blessings of liberty.
There is, of course, one area where a bare majority of the conservative Roberts Court has been willing to expand freedom: gay rights. And there are a number of attorneys engaged in this fight — Paul Smith and Pam Karlan probably the most prepared among them for a seat on the Supreme Court — who could conceivably fill the Ginsburg seat.
These lawyers, however, suffer from a structural problem in the legal profession that makes it difficult for any attorney with a background in progressive litigation to be elevated to the bench. The second-most accomplished litigator on the Supreme Court is Chief Justice John Roberts, who spent many years representing wealthy clients before the Supreme Court while he was a partner at a major D.C. law firm. We now know that Roberts’ work for corporate clients aligned perfectly with his political ideology, but lucrative jobs representing primarily corporate clients are largely viewed as politically neutral credentials during the judicial confirmation process. Both of President Obama’s appointees to the Supreme Court, Justices Sonia Sotomayor and Elena Kagan, once held jobs representing wealthy corporations in private practice.
While well-paying corporate defense firms are often the default job for elite lawyers with degrees from top schools, top progressive attorneys who land at public interest non-profits, who work at plaintiff or union-side law firms, or who engage in many years of pro bono work on behalf of an important cause, effectively flag themselves as targets for a conservative filibuster. Indeed, anti-gay groups successfully pressured Senate Republicans to oppose openly gay Judge Alison Nathan’s appointment to the lowest-rank of Article III federal judges due to her work to ensure gay people would have full access to their constitutional rights. Imagine the conniption that would result if a future president tried to nominate a major gay rights attorney to the Supreme Court.
Justice Ginsburg herself warned of this problem two years ago — saying that her “ACLU connection would probably disqualify me” if she were nominated to the Court today. The ACLU connection that Ginsburg refers to, of course, is her time as director of the ACLU’s Women’s Rights Project, when she ushered in the modern era of women’s rights under the Constitution.
Today, young conservative lawyers can take a job that pays them wheelbarrows full of money which also allows them to advocate on behalf on their political ideology, yet face few, if any, consequences for taking this job if they are later nominated to the federal bench. Meanwhile, young progressive attorneys who take much less lucrative jobs representing the marginalized and the less fortunate might as well brand the words “filibuster me” across their foreheads. So long as this state of affairs continues, conservatives will be able to place their top legal talent on the bench while progressive presidents will often be relegated to appointing their second string.
The Senate is expected to vote on filibuster reform later this month. Ending the Senate GOP’s ability to unilaterally veto judicial nominees is probably the only way to ensure that Justice Ginsburg will be replaced by someone worthy of her accomplishments.