Tuesday, November 15, 2005

All About Ginsberg

There are two news items involving Ruth Bader Ginsberg that I want to cover. The first involves what I see as the changing nature of federal court appointees. I have argued before that Democrats need to be more reasonable when it comes to approving President Bush's Supreme Court nominees. I thought Roberts had enough experience and his views were reasonable enough that he should have received near unanimous approval. As evidence for the changing nature, I look back to the appointments of Ginsberg and Scalia, both relatively on the extreme. Although I still stand by that, it appears that Ginsberg was more of a consensus pick than I realized. Ruth Marcus of The Washington Post writes;

Far from being a crazed radical, Ginsburg had staked out a centrist role on a closely divided appeals court. Don't take it from me -- take it from Sen. Orrin G. Hatch (R-Utah). In his autobiography, the Utah Republican describes how he suggested Ginsburg -- along with Clinton's second pick, Stephen G. Breyer -- to the president. "From my perspective, they were far better than the other likely candidates from a liberal Democratic administration," Hatch writes.


According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats. In cases that divided the court, she joined most often with then-Judge Kenneth W. Starr and Reagan appointee Laurence H. Silberman; in split cases, she agreed 85 percent of the time with then-Judge Robert H. Bork -- compared with just 38 percent of the time with her fellow Carter appointee, Patricia M. Wald.

So what this tells us is that Ginsberg was a consensus pick (despite what Lindsey Graham is spinning). And it would have been amazing if Bush had decided to act in the same way. But I am still worried about the now highly partisan nature of Supreme Court picks.

On another note, the Supreme Court in a 6-2 vote sided with Montgomery County Public Schools yesterday in Shaffer v. Weast. (O'Connor wrote the majority opinion. She certainly will be missed.) The decision leaves the burden of proof on the parents who bring suit against a school for not providing adequate individual education plans for special education students. The two justices who dissented were Ginsberg and Breyer. This decision should have been unanimous. Burden of persuasion rests on the plaintiff, not the defendant. Done. Next case.

One thing I am highly interested in is whether Roberts as Chief Justice can create more unanimous decisions on cases like these.