Problematic Women: Ginsburg’s Legacy and the Supreme Court’s Future

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Legal experts have described the late Supreme Court Justice Ruth Bader Ginsburg as “a lioness of the law.

Ginsburg died last Friday at 87 after serving on the Supreme Court for 27 years. President Donald Trump has said he will nominate her replacement this Saturday from a short list of five female candidates. 

Elizabeth Slattery, senior legal fellow and deputy director of the Pacific Legal Foundation’s Center for the Separation of Powers, joins “Problematic Women” to break down Ginsburg’s legacy and share what is known about the women being considered by the president for the open seat on the high court.

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Plus, many millennials aren’t getting married, and researchers are trying to understand why. We discuss dating and marriage trends among young people with the help of our colleague Philip Reynolds. And as always, we’ll be crowning our “Problematic Woman of the Week.”

Listen to the podcast below or read the lightly edited transcript. 

Virginia Allen: Last Friday, Supreme Court Justice Ruth Bader Ginsburg passed away at the age of 87 after a long battle with cancer. Ginsburg was considered to be one of the most prominent female legal minds that this country has ever seen. And though we may disagree with some of her views and some of the things that she voted on, we do want to take some time during today’s show to remember her legacy and the impact that she did have.

And here to help us break down that legacy is our good friend Elizabeth Slattery, the senior legal fellow and deputy director of the Pacific Legal Foundation Center for the Separation of Powers. Elizabeth, welcome back to “Problematic Women.”

Elizabeth Slattery: Thanks for having me. It’s great to be back.

Allen: So, you and The Heritage Foundation’s John Malcolm wrote a really wonderful piece for the Daily Signal last week, detailing the legacy of Ruth Bader Ginsburg, and you all describe her as “a lioness of the law.” And Ginsburg, she really did live such an incredible life. Can you just tell us a little bit more about her early years and how she came to be a lawyer?

Slattery: Sure. So, she went to Harvard Law School in the 1950s. She actually followed her husband’s path. He was a year ahead of her at the law school, and she was one of nine students, nine female students in a class of 500. …

There was a dinner party or something at some point in her first year, and the dean turned to the women and said, “Tell me, why do you justify taking the place of a man in this class?” And classic Ginsburg wit, she said, “Well, I’m at Harvard to learn about my husband’s work so that I might become a more patient and understanding wife,” and that was just classic Ginsburg, and of course, she went on to excel at Harvard, ultimately, graduate from Columbia, because after her husband graduated a year ahead of her, she followed him along to New York City, where he got his first job.

So, she graduated from Columbia, tied for first in her class. Sadly, just like Sandra Day O’Connor, her contemporary, she couldn’t find a job when she graduated. She … ultimately landed a clerkship with a district court judge, and she would find out years later that a professor, or perhaps it was the dean at Columbia, had basically threatened the judge not to send any more clerks to him if he didn’t take Ruth Ginsburg.

He promised if she didn’t work out that he had another young man who would fill in for her if she didn’t work out as a clerk. Well, she exceeded expectations as a clerk. She went on to become the first tenure-track law professor at Columbia, one of the only female tenure-track law professors in the country at that time, and then of course, she entered the world of legal activism in the 1970s.

Allen: So, what are a few of the decisions that she is really well-known for? What will the history books write of Ginsburg?

Slattery: Well, certainly, the history books will start with the decisions that, not the ones that she wrote, perhaps, but the ones that she argued before the Supreme Court in the 1970s to advance equal rights for women.

She argued six cases throughout the 1970s. She started the ACLU women’s rights project, and she devised a litigation strategy that mirrored in some ways what Thurgood Marshall had done for African Americans.

She tried to attack laws that put women on a pedestal. She said, “They’re not putting us on a pedestal. They’re putting us in a cage, and women need to be treated on equal footing as men, whether or not that is to their detriment.”

So, I think that’s what the history books will first recall, is the strides that she made for women throughout her cases in the 1970s. Then, of course, she was appointed first by [President] Jimmy Carter to the D.C. Circuit [Court], often called the steppingstone to the Supreme Court, given how many of our justices have come from that Washington, D.C.-based court.

Then, she was elevated to the Supreme Court by President [Bill] Clinton in 1993. I would note by a [Senate] vote of 96 to 3, not something we see these days.

Allen: Not at all. That’s incredible. I hadn’t realized that there was so much support right off the bat for her.

That’s incredible just to hear some of her background. I love those stories of just fiery women that have gone on to succeed and really be trailblazers for all women. As President [Donald] Trump is considering the next nominee to fill that seat, it’s exciting to hear that he is planning to nominate another woman.

So, I want to talk a little bit, though, about the timing, because there’s contention, obviously, right now, with some people saying that for the president to nominate someone as soon as Saturday, just about a week after Ginsburg passed, that that’s not normal.

What is the norm as far as timing for the president after a justice either passes or retires to then name the next one?

Slattery: If you look at the arc of history and the Supreme Court nominations, there were some in the early years where the process was very quick. Until the early 20th century, we didn’t even have Senate confirmation hearings.

But, of course, now that is baked into the process, and it’s something that we expect. In recent years, the average confirmation takes about 11 weeks and sometimes they are a little bit faster.

Chief Justice [John] Roberts was confirmed a little bit faster because, of course, he was initially appointed to be an associate justice, and then the chief justice at the time, William Rehnquist, passed away, and President [George W.] Bush moved him to the chief justice spot, and his nomination, his confirmation went through perhaps a little bit more swiftly because everyone wanted to have a chief justice at the start of the new court term because this was in the summer leading up to that term.

Allen: So, we know the names of three of the women that President Trump says are on his list of five. So, I want to take a minute and talk a little bit about what we know of these women.

So, let’s begin with Amy Coney Barrett. She serves on the 7th Circuit Court of Appeals. She’s a graduate of Notre Dame, and a mother of seven, actually. You have interviewed her in the past. So, can you just tell us a little bit more about her qualifications and why you think the president has put her on his short list of five?

Slattery: Amy Barrett, Judge Barrett certainly has a lot of support. … There’s been a lot of outpouring for her even before there was actually a vacancy on the court. We’ve been hearing a lot about her name for a couple of years, and we do know that she was in the running for the seat that ultimately, the nomination went to Justice [Brett] Kavanaugh.

So, Judge Barrett, she clerked at the D.C. Circuit for Judge [Laurence] Silberman and then for Justice [Antonin] Scalia and she is, I’m told, beloved by the Scalia clerk network. She’s very popular among all of them.

She worked in private practice, a brief stint in Washington, and she was part of the legal team that actually represented President Bush in Bush v. Gore. She then went on to teach at, primarily, at Notre Dame for the bulk of her career for about 15 years.

She taught basically everything under the sun: federal courts, constitutional law, statutory interpretation, evidence, civil procedure, the list goes on. She was a prolific writer in her time in the academy. She’s written extensively about originalism, about the supervisory power of the Supreme Court, about federal court jurisdiction.

So, her academic writings are very extensive, and she’s clearly given a lot of thought to how to approach the law. And of course, as you mentioned, she’s currently serving on the 7th Circuit. This is the circuit court that covers Illinois, Indiana, and Wisconsin.

She weathered a tough confirmation battle already. She exhibited extreme grace under fire. She was personally attacked for her religious beliefs, and senators during her confirmation hearing asked questions about her religion, and I think they maybe missed the part of the Constitution that forbids religious tests as a qualification for public office, but ultimately, she was confirmed.

We’ve seen on the bench that she isn’t following her Catholic views to guide her jurisprudence. She’s doing what she promised she would do and the oath that she swore. She’s following the U.S. Constitution.

Allen: So, Barbara Lagoa is also one of those names on the list. She was nominated to the 11th Circuit Court of Appeals by the president in 2019. She was actually confirmed by a bipartisan vote. There were only 15 Democrats that voted against her confirmation. Why do you see her as also being a strong candidate?

Slattery: Well, the fact that she was confirmed with only 15 “no” votes in these days is remarkable.

Judge Lagoa is from Miami. Her parents fled Cuba during [dictator] Fidel Castro’s reign.

She worked in private practice for a number of years. She’s a former federal prosecutor in southern Florida, and she has quite a bit of legal, of judicial experience. First, she served, I think, 13 years on a Florida [court], the 3rd District Court of Appeal. She was appointed by then-Gov. Jeb Bush, and then the current governor, Ron DeSantis, elevated her to the Florida Supreme Court in early 2019.

But it wasn’t long before President Trump snatched her up and nominated her to the [federal] 11th Circuit, where she served since last year.

Allen: Now, Allison Jones Rushing. She’s the other name that we know for sure is on this list of five. She was a graduate of Duke, and in 2018, was nominated by the president to serve on the 4th Circuit Court of Appeals.

So, what do we know about Rushing’s legal career? We’re not hearing quite as much about her in the news, but what is known of her?

Slattery: Well, Judge Rushing, she made headlines during her confirmation process because she’s young. She’s in her late 30s, and that is pretty young to become a judge, but certainly within … . There have been plenty of other, particularly in President Trump’s time, he’s nominated many highly qualified individuals in their 30s.

If you go back to President [Ronald] Reagan’s time and office, he also nominated a number of people in their mid- to late-30s, who many of them are still on the bench today.

A great example is Judge Edith Jones, who is celebrating, I think, her 35th year on the bench in the 5th Circuit. She has certainly been an inspiring woman on the court as well.

So, Judge Rushing, she worked at Williams & Connolly, which is a big [law] firm in Washington. She also clerked for Justice [Clarence] Thomas. I think before that, she had clerked for Justice [Neil] Gorsuch when he was on the [10th Circuit] Court of Appeals, and then Judge [David] Sentelle on [the U.S. Court of Appeals for] the D.C. Circuit.

So, she’s certainly well-rounded in her clerkships, and she worked on a number of Supreme Court matters when she was at Williams & Connolly.

Allen: So, obviously, we are in an election year. Does the Constitution say anything regarding a president’s right or authority to nominate a Supreme Court justice during an election?

Slattery: No. The Constitution doesn’t say anything about an election year or not an election year. That’s really just … To quote the Democratic [vice presidential] nominee, Kamala Harris: “That’s just politics.” So, we’ll see what happens.

Allen: Well, obviously, the president, he has a number of very strong candidates to choose from. I think most Americans are just hopeful that the process can really remain focused on constitutional issues.

Are you hopeful that this nomination process can actually really stay professional and focused on the Constitution?

Slattery: I certainly hope so, but one thing I would point out is that the escalation we’ve seen over the nomination battles on the Supreme Court for the last 30 years, it’s not going to fix itself.

I think one of the root problems is that too often, we look to the Supreme Court to settle policy debates that should be argued in Congress or in statehouses across the country.

We look to the U.S. Supreme Court to constitutionalize everything that we like, or argue against everything that the other side is a proponent of.

So, I think until we have a proper understanding of the court’s role in our system of government and until Congress takes back its role of actually legislating, I think that we’ll only see this escalation continue and that every vacancy on the court will be treated like a four-alarm fire.

Allen: Elizabeth, we just so appreciate you coming on, breaking this down for us. Really appreciate your time. It’s always a pleasure having you on “Problematic Women.”

Slattery: Thanks so much for having me.

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