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Ginsburg Laments SCOTUS Confirmation ‘Dysfunction’ in Senate (1)

July 25, 2019, 12:41 AMUpdated: July 25, 2019, 1:15 AM

The U.S. Supreme Court confirmation process is dysfunctional, and both political parties are to blame, Justice Ruth Bader Ginsburg said July 24.

Ginsburg said high court vetting in the Senate has devolved from weighing a nominee’s qualifications to how they’ll vote on a particular issue.

She said Donald Trump conservative nominees Neil Gorsuch and Brett Kavanaugh are “decent and smart,” but their confirmations were divisive, while she, describing herself as a “flaming feminist” at the time of her 1993 nomination, met little resistance and was confirmed overwhelmingly.

Speaking at an event for prospective law students held by Duke University at the Washington offices of Jones Day, the oldest justice at 86 said both Republicans and Democrats are responsible for the partisan confirmation climate.

Her hope is that “patriots on both sides of the aisle” will say enough with this “dysfunction,” and return to how it used to be.

Trump and the Republican-led Senate have pushed a slate of conservatives in their bid to reshape the judiciary, capped by the Gorsuch and Kavanaugh appointments. Frustrated Democrats have had little recourse outside of complaints that a number of nominees are not qualified for lifetime tenures or are ideologically unsuitable. The partisan political stakes are elevated over how a court might rule on hot-button issues like guns, executive power, and abortion.

Kavanaugh’s confirmation process last year was searingly partisan and marked by sex assault allegations stemming from his high school years, which he’s denied.

Agree More Often

Ginsburg contrasted the congressional partisanship with the strong working relationship among the justices at the court, calling it the most collegial place she’s ever worked.

She noted that in the just-completed term they issued 20 decisions in which the court split 5-4, and 26 where they were unanimous.

It shows that the justices agree “considerably more often” than they “sharply disagree,” Ginsburg said.

The statement contrasted with one she made weeks before the term ended in which she said she couldn’t predict “that the relatively low sharp divisions ration will hold.”

Ginsburg warned in an interview on July 23 about the dangers of making the court appear overtly partisan, rejecting calls from some Democratic presidential candidates to “pack” it as a way of countering the conservative majority fortified under Trump.

“There is no fixed number in the Constitution. So this court has had as few as five as many as 10,” Ginsburg told NPR.

“Nine seems to be a good number and it’s been that way for a long time,” she said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com