Recorded on Thursday, Nov. 5, 2020
TRANSCRIPT
Jamie Stiehm '82: I'm delighted to welcome you on this day of great moments and we're very lucky to have three legal minds who will discuss the legacy and the memory of Ruth Bader Ginsburg from different angles. My name is Jamie Stiehm. I'm class of '82. I live in Washington. I'm a columnist and historian. So I will be moderating and let me introduce you first to judge, Judge Jed Rakoff.
Jed Rakoff '64: Hello.
Jamie Stiehm '82: And who is a federal district judge for the Southern District of New York. He's also a public intellectual and he was appointed by the same president as Ruth Bader Ginsburg - President Clinton. I understand that the judge was personal friends with Ginsburg and will share some memories. You know, more sort of off the record glimmers into her character. Second, we have Andrea Young, the class of '76. She is the ACLU executive director for the state of wait for it - Georgia. So she's [laughs] she's cut in crossroads right now, and she will address how the ACLU gave Justice Ginsburg her great career advocating for the cause and the status of women. And last but not least we have the Attorney General of Colorado Phil Weiser. Phil is the class of 1990 and he was a clerk for Justice Ginsburg around '95 or '96 shortly after she joined the Supreme Court and he'll share some glimpses of her work a day world and how she turned out so many opinions that was so incredibly on point and what her work habits were like. Is that fine with you Phil? And I might add that Judge Rakoff, Jed is class of '64. So we have a nice...
Jed Rakoff '64: You didn't know the college went back that far, did you? [laughs]
Jamie Stiehm '82: That's no time at all. So let me, let me just make a few observations. First and sound some themes and then you can develop them. The panel will have a discussion and the second half of the hour, I'll take questions and direct them to our panelists. They can expand on them. So first of all, there was such a groundswell of grief in Washington this summer, actually, it was September. And it was almost as if the Supreme Court was a Wailing Wall. People came from so far, they stood in long lines and for different reasons, but it all kind of added up to love and inspiration, because Justice Ginsburg was so much more than a Supreme Court Justice. She was a public friend to the city. You saw her, not only at the opera, but also at the theater, and the symphony, and she had this genius for making friends in different spheres. And more than any other prominent Washingtonian you would see her at the Kennedy Center, just because she wanted to hear Beethoven's violin concerto. She might not be with anybody else. And before we launch into a discussion, let me add that she reminds me of Lucretia Mott, a founder of the college who was a champion of anti-slavery and the founder of women's rights. She was an incredible visionary and she had moral charisma, just like Justice Ginsburg. I like to think they were like history sisters and Lucretia Mott was the most important woman in antebellum America. So let me make that statement or claim. And the thing that jumps out at me because I like to write and speak about outsiders. She was an outsider, when she graduated from law school she was excluded and shunned by the legal establishment. And so I think the rest of her life she remembered what that felt like to be an outsider and she became the you know, the most senior women in the American government along with Speaker Pelosi but she never forgot what it felt like to be discriminated against and I think that explains her incredible journey that took her not only to advanced her own career, but the legal status of women in her lifetime - think what progress she made. And she is very parallel to Thurgood Marshall in that way. Both of them before coming to the court made great advances for people of color and for women. So if you agree with that or disagree, please speak up. She was a giant of her time, but there was so much more to her than that. She was so much more than a justice, she was a giant.
Jed Rakoff '64: Just to put a footnote to what you said. It wasn't really until she got to law school that she began to appreciate how much she was being discriminated against. When she was in high school at James Madison High School, which I thought showed great, you know, prescient so on her part [laughs] she was a cheerleader. It's hard to think of Ruth Bader Ginsburg out there, you know.
Andrea Young '76: I was also a cheerleader, just saying.
Jed Rakoff '64: There you go. There you go. And then when she went to college she met Marty Ginsburg, who was her fantastic husband. She had a boyfriend at the time already, but Marty had a Chevrolet so there was really no contest. [laughs] But she was a much more traditional person until she got to law school.
Jamie Stiehm '82: She was politicized by that. Andrea, would you like to speak to that? Or Phil?
Andrea Young '76: Well, I think Phil probably has more insight into that. I was just defending the cheerleaders, that cheerleaders are still telling people what to do. So it's actually within the context of what was acceptable for women in that time; it is a leadership responsibility.
Jamie Stiehm '82: That's a revealing point, yeah.
Jed Rakoff '64: If cheerleaders are people who tell you what to do then I am sorry I haven't recognized that the Court of Appeals is my cheerleaders [laughs].
Jamie Stiehm '82: So Phil, you may want to comment on her character as you know, how she became politicized from going to law school and looking for a job that she couldn’t find at first.
Phil Weiser '90: Yeah, well, first I have to give them the Marty point, as I understand it was not about the Chevrolet, but in her words that he made her laugh, which I think is a beautiful standard to have in mind when thinking about a partner in life. So that's the first point. As for the moment that you've put it on, it's a really important point - so she graduated from law school. She's at the top of her class. And she couldn't get a job anywhere. And Sandra Day O'Connor had the same experience, no one would hire her. As she talked about it - she was a woman, she had a child, and she was Jewish and back then Jews were getting turned down by most of the major law firms. So for her, if you will, it was three strikes. What ended up happening is an inspiration for mentors. Her mentor Gerald Gunther, a professor said to a judge. I'm gonna let our good judge here, Jed explain a little more the backstory, because he was a judge on the I believe it was a Southern district.
Jed Rakoff '64: It was on my court - Edmund Palmieri.
Phil Weiser '90: So Edmund Palmieri was told by Professor Gerald Gunther “If you don't hire her we will never send you another clerk from Columbia again”. And by the way, I've got a man who if she has worked out I'll just swap him in for you.
Jamie Stiehm '82: Really? This is the beauty of having this, you know intersection because these are small details about her that kind of add up to a portrait. Somebody took a stand for her. Professor Gunther and if he hadn't done that, then she might not have had an entree at all. So maybe she carried with her, the sense that somebody stuck up for me and I've got to pass that along, carry it forward.
Andrea Young '76: I would pose also that sense of being the first but not the last, right. And so I think part of telling that story is, she is responsible for changing so much of that. So she had that experience and she used that to change it so that now young lawyers can't even imagine coming out at the top of your class and not getting an interview. I mean, the fact that some of the things she personally experienced are so unimaginable today is a result of her own work, her own intervention.
Jamie Stiehm '82: Absolutely. And her sense of like the greater good and opening doors that were locked. So her personality, I've never met her, but Jeffrey Rosen is a friend of mine and he wrote a book about her. She seems rather understated in person. Is that, is that right? Or? Phil maybe you'd like to carry that?
Phil Weiser '90: Understated may not be quite the right word. What I would say is, she is soft spoken. And when she speaks, she speaks slowly because every single word she uses she's thought about carefully. I'll tell you every word and every opinion, she ever wrote she thought about carefully. So for people who aren't familiar with her, don't know what to expect you would coach them and say - when she pauses, don't assume that she's done she might be thinking about what she's gonna say next.
Jamie Stiehm '82: Aha. That was the lesson you learned in the chambers where it happened. Tell us a little more about your just your daily, you know, education, working for Justice Ginsburg.
Phil Weiser '90: Well, let me just give a word about her work style which is not maybe widely known. She would often not get it until 12 noon, she kept graduate student hours, really. And she would often stay till 9-10 at night and then go home and work more. And but for Marty, she probably would have pulled regular all-nighters, because she was so engrossed in her work and she loved her work and she was great at it. So Marty would bring her away from doing work and would also, they had shared loves together, you mentioned the opera. She was really a perfectionist.
Jamie Stiehm '82: And you can sort of see it in the way she dressed and presented herself, everything was very meticulous and intentional.
Jed Rakoff '64: I think she was very lucky, in a way, in so many ways to have Marty as her husband because they balanced each other. So the way I first met her, this was in her pre icon days. When she was on the DC Circuit Court of Appeals and Marty was of counsel to the law firm that I was at at the time. And when I was in Washington he would invite me and my wife over to have dinner occasionally, and he would meet you at the door, he would be full of good cheer, he would immediately give you hors d'oeuvres that he had made and indeed he cooked the whole meal and he did a fantastic job. But she was there. And every few minutes, you know, very quiet, slow way she would say something and it was so effective - the very fact that she, not that she was artificially holding back, it was just her style but you hung on her every word because each word was slow, meaningful and insightful. And so they were a great balance. I should add that Marty Ginsburg, who died some years ago was in his own right, a very great lawyer, a tax lawyer, although he once said to me, and I think he said to others that he had spent his life helping the rich to prevent the deprivation to the poor, so. [laughs]
Jamie Stiehm '82: When we look Marty's way as much as she was a pioneer and ahead of her time he was ahead of his time too. They had a very unconventional marriage and he was proud of that. He didn't resent it in any way. And as I gather that he completely adored his wife, Ruth.
Jed Rakoff '64: No question.
Jamie Stiehm '82: The Honorable Ruth, as he referred to her in a letter that Peter Favor from the class of '60 shared with us. He wrote a letter to a third grader who wrote an essay about a tax reform bill, and he said, “The Honorable Ruth actually laughed out loud, that is a rare occurrence”. [laughs] Even in this letter he is affectionately lightheartedly teasing her and the friendship she had with Antonin Scalia. The very arch conservative jurist. He seems in personality to be a lot like Marty Ginsburg. Very jovial and outgoing and, you know, kind of loud.
Is that, is that why she was friends with Scalia? [laughs] Because they had that in common?
Jed Rakoff '64: So I asked her about that once. So I said, this is only a slight exaggeration “How can you be friends with that jerk?” and she said - “He is a fantastic guy, he makes me laugh”, apropos what was said about the fact she said there were a number of times on the bench in the Supreme Court when she had to kind of cover her mouth because of something he had whispered in her ear that was funny. And of course, they also shared a love for opera. He was a dynamic figure. He was a very good writer. So there, there was a lot there that drew them together in you know, when you think about this in the current climate it is such a contrast and such an example of what we should all aspire to, in our political life.
Phil Weiser '90: Well, let me let me jump on that theme and I know Andrea worked for Ted Kennedy. Ted Kennedy had that type of relationship with Orrin Hatch.
Jamie Stiehm '82: That's right.
Phil Weiser '90: And it is like Jed said, it's a sad statement that today we look at a friendship across viewpoints and ask - How does that happen? As opposed to asking - Why don't we see more of that? Because like Ted Kennedy and Orrin Hatch, Justice Ginsburg, Justice Scalia liked each other personally, respected each other and they both believed in the enterprise of what they're about doing even if they came at it from different perspectives.
Jamie Stiehm '82: I see. So you saw that in practice at the court, you know, whether they're in session or not they just had this warm mutual appreciation. Speaking of the Senate and Ted Kennedy, Andrea, you've come back to, you're from Atlanta, you're back where you came from, but when you were working for Senator Kennedy was there an overlap with what the ACLU was doing at the same time?
Andrea Young '76: Well, Laura Murphy Lee was the Washington office director, and so we certainly, you know, collaborated and was, you know, always influential. I mean, my connection to the ACLU actually goes back to my dad's first run for Congress.
Jamie Stiehm '82: Your father Andrew Young.
Andrea Young '76: Yeah, my father Andrew Young. You know we're coming up on redistricting. And of course, the Voting Rights Act was new at that time and the ACLU in between the time my dad ran and lost and then was running again they drew him out of the district, the one that was most recently represented by John Lewis. So the ACLU intervened using the Voting Rights Act to have those lines redrawn. Now, recently one of the Ruth Bader Ginsburg important descents and she started talking about this, she was writing descents sort of for the future is to eviscerate the Voting Rights Act as they did in Shelby v. Holder was like getting rid of an umbrella because it's raining and you're not getting wet in the rain. And so that's very much what we see, because we saw this explosion, you know, of efforts to restrict you know, access to the ballot, particularly for African Americans. So she has quite a good, quite a legacy in Voting Rights, which of course is very much on people's minds right now as we, you know, sort of witness, voter suppression attempts coming from the podium at the White House.
Jamie Stiehm '82: And you're right in the eye of the storm in Georgia right now as we speak. And can you discuss her vision of how the Voting Rights Act should have continued, you know, onward, forward from 2013.
Andrea Young '76: Yes, I mean her opinion is, her descent is something that in Shelby v. Holder is something we cite quite a lot and will continue to until it becomes, you know, the law again. Because of course, I was in the Senate when the Voting Rights Act was continually renewed and it was renewed with overwhelming bipartisan support, you know, overwhelmingly all across the Senate and so the idea that all of a sudden there's a gambling in the casino. It was just, you know, just doesn't. And I think the outrage, the intensity of her descent was, you know, quite an important one. And the other connection of course to Ruth Bader Ginsburg is that it was Jimmy Carter that put her on the Court of Appeals.
Jamie Stiehm '82: Ah, and she said, if it hadn't been for him- he gave her the first opportunity to be the judge.
Andrea Young '76: Rescued her from the ACLU.
Jamie Stiehm '82: Was that in 1980? I Think it was in 1980. So her judicial temperament was just percolating for years before that. And since you have personal knowledge and you know you knew her can you speak about her legacy and how the ACLU is trying to, is finding ways to further her legacy? Any programs or any fellowships or anything like that?
Andrea Young '76: I'm sorry I got distracted by the chat. Was that a question for me? [laughs]
Jamie Stiehm '82: What did you get distracted by? If it's a question you'd like to answer let me know. But you mentioned how her legacy was very alive and well at the ACLU.
Andrea Young '76: Oh, absolutely. I mean, we essentially, you know, had an all staff call, we had over 1,000 current and former staffers on a call to basically observe her passing. I mean for an organization that depends on the Supreme Court for a lot to be effective in its work. I mean, it was a dagger to the heart to lose Justice Ginsburg, I mean, you know, and for every woman lawyer at the ACLU, she is just the penultimate. Thurgood Marshall and Ruth Bader Ginsburg, that is why you went on and if you're an ACLU lawyer that is who you want to be when you grow up, that is like Mount Olympus.
Jamie Stiehm '82: Yes.
Andrea Young '76: And as we said, you know, Ruth Bader Ginsburg is like the most successful graduate of the ACLU [laughs]. She's like, you know, our absolute star. And we've renamed I mean, there is still a Women's Rights Project at the ACLU. There is now a young woman of color who is in who has that title that Ruth Bader Ginsburg had and she's had the opportunity to interview Justice Ginsburg And has that recorded. And we have renamed one of the centers for Justice Ginsburg.
Jamie Stiehm '82: And that's a memory that she'll carry for the rest of her life and she'll carry it to her daughters, and her colleagues, and there's so many stories of her kind of genius for [inaudible] and with people. Not only on the legal plane but she appreciated all kinds of people. I have a vignette, a charming vignette from Serge Seiden, Class of 85. He was directing a production at the studio theater here in Washington called "Bad Jews" and she came backstage, she met the cast, she invited the actors to come to the Supreme Court for oral arguments and she invited them to her chambers. Now, how many people in her realm would take the time, and the effort and enjoy the whole interaction? She wasn't doing that for show, she was doing that because she loves the theater and she appreciates the creative process as well as, of course, the legal visionary.
Jed Rakoff '64: Before though we continue with all the things that made her so special, I think it's important to recognize how admired she was by other judges and that's because she was a master of the craft. She was cautious, she immersed herself in the facts of every case before she let the law take over, so to speak. She was very open to views expressed by her colleagues and was not afraid to also try to persuade them to her point of view. These are traits that judges admire among their fellow judges and she had all those traits to a great degree.
Jamie Stiehm '82: Well, thank you for that testaments. That's something that we wouldn't necessarily know about the realm of judges.
Andrea Young '76: I know we want to get to some of the questions in the chat. If I could piggyback on that too is that her, the brilliance of her strategy of using cases where men suffered from sex stereotypes in order to expand the rights for women. I mean, was just, it was just brilliant. And I think one of the things she said in an interview with that well, the Supreme Court then was all men. So I had to have arguments that they, and of course it's a perfect ACLU philosophy, where we always are saying - We want this to be the rule, no matter what side of the question you're on, right, so you have to have a rule that works for everybody. That I think was just, when you look at when you look at the cases that she used to move rights for women. I mean the brilliance of the strategy was just, you know, beyond belief. And again, to come up with that at a time when people didn't question these things. People didn't question that men were the executives of estates. People didn't question that it was women that stayed home with the kids. And that was the thing that made her so-so brilliant. I mean her tactics were so brilliant.
Phil Weiser '90: Well, she came by it naturally. There's a great story she tells of her son, James, who was an active kid as sort of in elementary school and she gets like the fifth call in a row about James and says to the school administrator “James has two parents, I suggest you alternate calls between myself and James' father.” [laughs] And after that the frequency of the calls slowed down, because the administrator thought, “Oh, I couldn't bother the father, who's busy and working, but I could bother the mom even though she had a busy career as well.”
Jamie Stiehm '82: That's a great insight. I will move to the questions and let me see. We have one from Doug Perkins; he is the class of 1980 who asks how Ginsburg would feel about expansion, expanding the Supreme Court, which has come up in this campaign. Something to be studied. Would one of you like to take a stab at that?
Jed Rakoff '64: Well I think Phil knows more about this than I do. But I do know she was opposed to that idea. And to be frank I think it can only serve to further politicize the court so you expand the court to 11 during a Biden administration, then you have a Republican administration you expand it to 13 And so on it goes. You don't solve any long term problems and you solve the short term problems at the cost of the prestige and the cohesion and the non politicization of the court.
Jamie Stiehm '82: Thank you. We, we have a request from BoHee Yoon who is the president of the Alumni Council, she would like to know about your vacation, galavanting [laughs]
Jed Rakoff '64: Well, galavanting is something that Ruth Bader Ginsburg was, the two did not quite go together. So this was around 2015 or so. Marty had died and my wife Anne and I had the great privilege of going with Ruth Bader Ginsburg to Switzerland where she was also accompanied by her very close friend Donna Leone. Donna Leone is an author of 26 mystery novels and this is another whole side of Ruth Bader Ginsburg that I think most people are not aware of that she was a real mystery buff. And so we went through Geneva and Zurich and a whole bunch of places yodeling as we went, of course and I think what most sticks with me, there were two things, that stick with me about that trip. One was how totally unpretentious Ruth Bader Ginsburg was and by this time she was the rock star. And yet you would never know it from the way she spoke with everyone from, you know, the people she would just be casually to my wife and I, and Donna. She just was totally without pretense. And the other thing I remember not quite as favorably- she talked the four of us got to going to see a performance in Zurich of Wasik. And I have to admit, probably shows what a philistine I am that I think Wasik is totally pretentious and boring. But she loved it. I was sitting next to her and she was just mesmerized and then apropos what was said earlier by Phil she went up, or maybe Jamie, but she went up afterwards and spent a huge time with a cast and again, it was totally unsolicited so I consider her one of the great human beings that I've ever met.
Jamie Stiehm '82: We're getting questions fast and furiously, keep sending them. I have a question for you, Phil, which is, have you ever argued a case that involved Justice Ginsburg?
Phil Weiser '90: I did. I actually argued the last case you heard. It was a case involving the electoral college, faithless electoral college.
Jamie Stiehm '82: Really? How timely.
Phil Weiser '90: Yeah, when I delivered my rebuttal, the Supreme Court was sine die with the end of the session and that was the last case you heard. And I was able to anticipate the question she was going to ask me because we had made an argument involving standing, which involves the legal rights of a party to sue and she is quite the aficionado of civil procedure, and I very much enjoyed that dialogue with her. I only wish I had the chance to chat with her afterwards, where she might have ever said anything about what she thought of my argument. But I did have the ability to argue before her. Now, this is during the pandemic, so it was by telephone, it wasn't in person or in court. Nonetheless it's going to be one of the highlights of my life.
Jamie Stiehm '82: What an honor. I mean, that is tremendous and so timely for right now. I'm sure she thought your argument was swell.
Phil Weiser '90: I know that she was appreciative that I ran for office and at the time I was her only clerk who was elected to public office subsequently this election cycle, a new district attorney in Michigan. Eli, his name is now also a RBG clerk in public office and she said to me when I saw her, this would have been in 2019, a title sometimes used for attorney general that is a misnomer, but it's done with some affection is - “How's my favorite general doing?” [laughs]
Jamie Stiehm '82: Oh my goodness. What an incredible honor privilege. Speaking of the Supreme Court and its direction, Andrea someone asked whether the current conservative drift of the court, six-three, is her legacy of gender equality at risk?
Andrea Young '76: I think it's all at risk. I think it's, you know, it's true of a nightmare scenario, but you know, I think there was also an earlier question as to whether or not I think some of her tactics are absolutely tactics that we will need to revisit we've got to make members of the Court see how these things impact them. And I think we have to really look at a lot of the issues around marriage, even I think the nomenclature of talking about marriage equality instead of gay marriage was a really important nomenclature shift that helped people really understand I think we're gonna have to work very hard to craft arguments that take into account these different perspectives and help people see what they value is, you know, at risk. And so like for example for the ACLU on abortion one of the issues which Ruth Bader Ginsburg thought Roe v. Wade was decided on the wrong grounds. And I think even as we've sort of lift up this issue, politically, legally, you know, the issue is still right to privacy, but politically, it's really about who decides. Right. And so, who do you want to empower in terms of people's very intimate and personal decisions. And so I think we have to, you know, I think we do have to think about how we craft arguments that take into account. the interest of people who have maybe more conservative leanings. I think that's also part of unifying the country. I think that we have to talk about these issues, not so much in terms of liberal, left and right. But really, in terms of you know the real human costs of a lot of these choices that we have and that's you know, that's an important legacy of hers is really being able to get what we would consider to be a liberal result but really on such solid intellectual grounds.
Jamie Stiehm '82: I see, so learning those lessons and carrying them forward. That question was from Jody Williams class of '66, just FYI. There was also a question about term limits for Supreme Court justices. They're living longer and I think Clarence Thomas has been on the court since 1991. Did you ever have any informal exchanges with her about whether justices should be limited to 25 or 30 years? Any of you on the panel?
Phil Weiser '90: She was asked the question, and she basically pushed it aside and said something to the effect of, "it will never happen because it'll acquire a constitutional amendment." The other thing that I know she was aware of is that we've had some Justices, of course RBG herself, but also Brandeis and others who served well past what might be an age limit we could have or a year limit. It's worth noting a lot of states do have forms of term limits and I haven't seen a careful study of how that plays out. Part of the issue now isn't term limits, per se, but it's the issue about are we seeing Court appointments being more ideologically and politically driven in ways that are dangerous for the legitimacy of the court. If you had an 18-year limit you would ensure that every two years we had a new appointment and the risk that we're facing right now we look at, let's say the last 20 years, we've had only one election where the Republican elected to President won the popular vote. Yet we have had a lot of Supreme Court appointments by Republican presidents and so the Affordable Care Act is very popular right now, but this supreme court is considering whether to strike it down its entirety.
Jamie Stiehm '82: Next week. It's happening November 10th.
Phil Weiser '90: I and other states are defending the law. If that were to happen, that would be akin to some of other periods of judicial activism that are at odds with the political process so we have to separate two separate issues, I think - one is are you doing this because you believe that justice is our judges will lose their effectiveness after a period of time. And I think that's where her criticism is probably strongest. But then the second problem is one that a number of questions have touched on, what do we do about the fact that our political polarization is now intersecting with the judicial branch in a way that is threatening the integrity and legitimacy, and credibility of the judicial branch. And I know that Chief Justice Robert has thought a lot about this and is trying mightily to protect the institutional judiciary. We're going to learn a lot this term, including in this Affordable Care Act case. I'd love to hear what Judge Rakoff thinks about that because I think the judiciary is as Alexander Hamilton put it the least dangerous branch because it doesn't have the power of the purse or the power of the sword. It has to build popular confidence in the judiciary and that's something I'm sure all judges think about.
Jamie Stiehm '82: And Jed if you could use mix in if you had any conversations with her about Bush v. Gore 20 years ago.
Jed Rakoff '64: So on the general topic like Phil my impression was that she was not in favor of term limits, although she didn't come out specifically about that in a way that she came out against court packing. But the critical virtue of the federal judiciary is its independence and anything that can be done to maximize that independence I think in the long term serves us very well. Lifetime tenure is one of the things that gives judges independence and there are many, many cases of Supreme Court justices who have evolved over time and become much better justices as they developed their independence. Oliver Wendell Holmes, which many people think was one of the greatest, if not the greatest Justice of the Supreme Court was there till he was 98. Now I will say by way of a joke, you may ask the question, what happens to a judge when he develops dementia? The answer of course is - nothing because no one knows the difference. [laughs] But they get serious. I never had an opportunity to discuss Bush v. Gore with Ruth Bader Ginsburg, I know from mutual acquaintances that she regarded it as maybe the worst judicial opinion of the period of recent decades, but I don't know that for firsthand. So I can't swear.
Jamie Stiehm '82: Well, certainly, she would not be thrilled that the Supreme Court choosing the next president. One man, one vote or one woman, one vote. Andrea would you like to comment on originalism and what she would, what her critique of originalism might be?
Andrea Young '76: Yeah, that's not, you know, I'm more in an administrative role these days. [laughs] I do want to say something about, I think today we do have the fence of a constitutional crisis. I look at Maine and I was looking at the vote count in Maine and that Maine has two senators and Fulton County doesn't have, Fulton County, Georgia. You look at all the African Americans across the state across the United States and we've got two senators - one's getting ready to leave that are African American. We do have this constitutional crisis, the court is part of it. That nine justices for you know 325 million people that people who never won the popular vote can have so many, put so many people on the court. The Senate, which is again the majority in the senate represents a minority of the American population and yet they're packing the court, and I would say stole two Supreme Court seats. So, I mean, I think the Republican Party has de-legitimized the court by its own overreach. So something has to be resolved about it, I think if Biden becomes president he's going to set up some sort of a commission to really look at this issue. Baby boomers are not good at succession planning. I think we have a succession planning problem. And something like what Phil is discussing where you just knew routinely that every four years there will be two new justices rotating around the court would be something that would, not make it this, what really feels from my perspective, and for many people in my circles in the ACLU the mourning for us is like our marriage is on the line or our right to bodily integrity on the line, is the Civil Rights Act next, which you know judge says it's one of the most important law in the United States? Like a state of emergency. [inaudible] that reverse those things before. So for many, many Americans this is an existential crisis, the current constitution of the United States, the people who currently [inaudible].
Jamie Stiehm '82: It sounds like you feel like a state of emergency. A lot of things happening at once, and you're in the eye of the storm at the ACLU and I might add three Justices of the nine were appointed by I was gonna say one term president. [laughs]
Andrea Young '76: You know, it becomes this chicken and egg and of course, things like the Electoral College and all these things are messages of the slave history, you know our history as a slave society, and so these things are also, they're just also fraught and then a minority, right now, Joe Biden has 3 million more votes, but that doesn't make him president
Jamie Stiehm ‘82: Actually I think he has 4 million more votes.
Andrea Young '76: You know you turn off the TV...
Jamie Stiehm '82: Yeah, that is very true. And President Clinton in eight years only had two appointments to the Supreme Court and with Ruth Bader Ginsburg was dispersed and then Stephen Breyer was second. And Stephen Breyer is 82 or he's getting up there, so he won't. Who knows, all I can say is that what a great irony it is that we're having this conversation on this day when a new president, maybe emerging, given her dying wish, that the new president would name her successor.
Andrea Young '76: Well, she thought I think that Hillary, what she wanted I think was for the first woman president to be, correct me if I'm wrong Phil and Jed, my understanding, for the first woman president to be able to appoint her successor, that was one of the things she was hoping would happen, but...
Jamie Stiehm '82: Can you comment on that Phil?
Phil Weiser '90: It's interesting, I would say it a little differently, which is there was pressure in, I forgot the year, before the Republicans took the Senate and at that point, here's the problem from an empathy perspective - she was on top of her game. And that is not an easy thing to do, to step away when you're on the top of your game. The other thing that is notable is she didn't have Marty anymore. So this was her life. So it was a lot just on a personal level to ask her to step away and, as for when people step away and when they die, obviously, Clarence Thomas retired in 1991. And right before Bill Clinton was elected and I'm sorry, Thurgood Marshall retired in 1991 then Thomas replaced him in 1991. Very different perspective on the issues that [inaudible].
Jed Rakoff '64: My understanding from the questioning of the Supreme Court justices is that Clarence Thomas also retired in 1991. [laughs]
Phil Weiser '90: In any event, so Thomas, by the way, in defense of Thomas in my argument we had he asked a great question. He usually doesn't ask questions, but because of the pandemic rules every justice was given a chance and he had this great question about under my opponent, opposing counsel under his theory would Frodo Baggins be someone who could be voted for president and anyway.
Jamie Stiehm '82: That was this question?
Phil Weiser '90: That was his question, it was a great question. Anyway, but Marshall retired in 1991. And they asked him how come? He said, "because I'm old and I'm tired."
Jamie Stiehm '82: Yeah. I remember that very well.
Andrea Young '76: Yeah, you know, my view of Clarence Thomas was that, well, no wonder Bush opposed affirmative action if he thought this was an example of it. Because, of course, Clarence Thomas wasn't fit to wipe Thurgood Marshall's boots, but I'll say that because I don't have to go practice in front of them. We had the same you know tragedy with John Lewis that this icon is given this whole, this is his whole life, his wife is deceased, being in Congress was his whole life and even though he also developed cancer, there's just no idea that you could say don't run for re-election. So we had this crisis when he died while on the ballot. He had already won the Democratic nomination. We had to have an undemocratic, we had to have the party appoint someone who would fill his seat. But it's quite a crisis - there's a person who stood for voting rights and yet his successor was chosen in a way that was not democratic, it was according to the existing rules.
Jamie Stiehm '82: We lost him in July and we lost Ruth Bader Ginsburg in September. And they both had this groundswell of mourning and very spontaneous shared grief. I know people that just went straight to the Supreme Court to to be with each other, to say goodbye, to share their sorrow and it was the same thing with John Lewis and people were lining up the blocks, just to pass by his catafalque, which was the Lincoln catafalque.
Phil Weiser '90: If I can remark on that because there's an important connection to two of them. They were both Civil Rights heroes with a very positive attitude. They understood what it meant to change hearts and minds. John Lewis, there's this great story he tells in a podcast with David Axelrod, where a young man and his grandfather show up at his office and the grandfather says, “I was there on the bridge that day beating you. I'm sorry.” And John Lewis said “I forgive you”.
Jamie Stiehm '82: I've heard that story. I heard that he went to Congressman Lewis's office. And they both prayed and cried. But John Lewis was so humble and so great at the same time and I think you could say the same thing about Ruth Bader Ginsburg. I don't know if they were personal friends, but I'm sure that they were kindred spirits and understood each other. That's a very valuable point about being shining a light.
Phil Weiser '90: And let me give you another example for RBG. RBG argued before the Supreme Court in the 1970s and then Justice Rehnquist, mocking her argument for gender equality said “You're not just going to settle for Susan B. Anthony on the dollar bill?” [laughs] Rehnquist joined her opinion in the VMI case that said women had a right to be admitted to the Virginia Military Institute.
Jamie Stiehm '82: She calls him 'my chief', right?
Phil Weiser '90: She loved him and called him 'my chief' and she said Rehnquist grew because he had daughters, and he was able to be empathetic, seeing how his daughters were treated, and that helped shape his thinking in a way that brought him around to her position.
Jamie Stiehm '82: Oh that's fascinating. I'm one of three daughters and my mother says something similar about that.
Jed Rakoff '64: It's really important to remember how so many great Supreme Court justices have evolved over time and the two obvious examples that come to mind are Earl Warren and William Brennan appointed by Eisenhower. Warren had been a conservative governor of California, Brennan was a Democrat on the New Jersey bench, but he was considered a cautious and conservative democrat in terms of his record up to that point. But once given the independence, the freedom that they got on the Supreme Court, they became people to whom we are just as indebted as we are to Ruth Bader Ginsburg.
Phil Weiser '90: On Warren by the way, to put a fine point on it. He was an enthusiast of putting Japanese American internment camps. That was his priors on civil rights.
Jed Rakoff '64: Right.
Jamie Stiehm '82: Incredible. Did Justice Ginsburg have a particular historical figure on the court that she put first in her pantheon?
Phil Weiser '90: Well, let me add an element here. I don't know that it's fully satisfactory, but I do think she had a soft spot for Justice Brandeis, who was the first Jewish justice. And she did have a real strong connection to her Jewish heritage, she had in her office a quote from the Bible, which was "Justice, Justice shall you pursue".
Jamie Stiehm '82: "Justice, Justice shall you pursue"
Jed Rakoff '64: I'm sorry, I wanted to just because we're running out of time to take the liberty of mentioning that all of us who were very close to Justice Ginsburg, were constantly urging her not to retire, not to, even though the argument was being made “Oh, well, you know, do so before who knows what will happen and so forth”. But as Phil pointed out, she was absolutely at the top of her game. And at her 25th anniversary of her being on the Supreme Court I had the very great liberty of being asked to write a song in her honor and the last verse of which I will now impose on you. [laughs] And it's to a tune of a 1930s Gershwin musical called "Of Thee I Sing":
Of thee I sing Ruthie,
You have got that certain zing Ruthie,
Everything that you dare
seems to reach the heights,
were it not for you
where would be women's rights.
Oh, of thee I sing Ruthie,
Madam Justice you're our everything Ruthie.
You're the warmth of our environment,
please don't even think retirement.
Of thee I sing.
Anyway, that was my contribution.
Jamie Stiehm '82: Bravo!
Andrea Young '76: I don't know what anybody can say after that. [laughs]
Jamie Stiehm '82: All I can say is that she was discriminated or excluded on the way in and then at the end of her arc she refused to leave when that was the right thing to do. I mean, how many men justices have that pressure put on them. I think she recognized that she had every reason to stay and that's the way it is.
Andrea Young '76: Well, she became a rock star. I think one of the most unlikely things was for her to have become such a pop icon. And usually people who really deserve to be heroes are not pop icons and in this was one instance where someone who absolutely deserved every single bit of it actually did get the rock star treatment to where little girls have the lace collar. And as the mother and grandmother of a granddaughter, I think she's just such a fabulous role model Right down to Marty. [laughs] Every girl should marry a Marty.
Jamie Stiehm '82: Absolutely. Phil would you like to add anything? We'll have to close the conversation after that.
Phil Weiser '90: I will say that for those who watch the documentary movie ‘RBG’ or the 'On the Basis of Sex' movie, you get a sense of her and her and Marty and I do think his commitment to supporting her is part of this story that is so exceptional. And all of us can be inspired to be our best authentic selves as a partner, as a parent, as someone who works for equality, a more inclusive 'we the people' and towards a more perfect union that is a legacy that she absolutely leaves us all with and we should hold on to.
Jamie Stiehm '82: She expanded the meaning of 'We the people'. Now, I must say it's been a pleasure, a joy to visit with each of you and I thought the insights to broaden the crevices of her character are so illuminating. Thank you very, very much. Andrea, Phil and Jed, our singer. [laughs]
Jed Rakoff '64: Who knew indeed, right?
Phil Weiser '90: Thank you all, really a pleasure.
Andrea Young '76: Thank you.
