Supreme Court Justice Ruth Bader Ginsburg, addressing the annual conference of the 2nd U.S. Circuit Court of Appeals on Friday, signaled her admiration for 2nd Circuit Judge Sonia Sotomayor, the nominee to replace retiring justice David Souter.
"As much as I will miss Justice Souter's company," she said, reviewing top Court events of the last year, "I was cheered by the next banner headline," namely President Barack Obama's selection of Sotomayor as the next associate justice.
"The nominee will bring to the Supreme Court, as she did to the district court and then the Court of Appeals, a wealth of experience in law and in life," Ginsburg said. "And I am so glad no longer to be the lone woman on the court." Implicitly assuming that Sotomayor will be confirmed, she added, "I look forward to a new colleague well-equipped to handle the challenges our work presents."
It is unusual, but not unheard of, for sitting justices to comment favorably on possible future colleagues. While the ultimately unsuccessful nomination of Robert Bork was pending in 1987, Justice John Paul Stevens publicly described him as a "well-qualified candidate," and then-Justice Byron White let it be known that it would be "all right with me" if Bork joined the Court.
C-SPAN aired Ginsburg's speech on Saturday, and the video is available here. The conference took place at the Sagamore Resort on Lake George in Bolton Landing, N.Y.
Ginsburg's comments about Sotomayor were not the only ones of interest to Court-watchers. Other nuggets:
• Noting that 20 per cent of the Court's rulings this term have been decided by 5-4 votes, Ginsburg added mysteriously that "there will be more" 5-4 decisions before the term ends.
• The Ricci v. DeStefano, brought by non-African-American New Haven, Conn., firefighters who claim they were victims of reverse discrimination when they were denied promotions, "one can safely predict, will be among the last to come out before the term ends."
• Another controversial pending case, Northwest Austin Municipal Utility District Number One v. Holder, a challenge to the Voting Rights Act, is "perhaps the most important case of the term." She added, "What the Supreme Court will do with this case remains to be seen."
• With evident glee, Ginsburg mentioned three 5-4 decisions this term -- Oregon v. Ice (pdf), Vaden v. Discover Bank (pdf) and Arizona v. Gant (pdf) -- in which she was the only justice in the majority in all three. "I emerged in these cases as the swing justice."
• Monday was "D-Day" at the Court, Ginsburg said. That, she explained, is when "all the pending decisions must be in circulation," meaning that draft majority opinions had to be ready to be circulated to the other justices for comment by Monday. She mentioned the deadline by way of explaining why she needed to return to Washington on Friday, rather than staying at the conference through the weekend.
CLEARING UP A 'FLEETING EXPLETIVES' MYSTERY
In an additional comment worth special attention, Ginsburg partly answered a nagging question about the oral argument last November in FCC v. Fox Television Stations, the so-called "fleeting expletives" case.
The case involved whether the isolated use of profanities such as the "f-word" or the "s-word" during non-news, over-the-air broadcasts violate the FCC's policy against broadcast indecency. During oral arguments at the 2nd Circuit, Carter Phillips of Sidley Austin repeatedly used the real words -- not the sanitized version -- before the judges. Phillips said that "unless instructed otherwise," he would use the unvarnished words before the Supreme Court as well.
There was ample precedent for doing so. In the 1971 case Cohen v. California, involving a man arrested for wearing a jacket with the words "Fuck the Draft" in a California courthouse, lawyer Melville Nimmer freely spoke the slogan during argument at the high court -- even after Chief Justice Warren Burger had pointedly told Nimmer that the justices were well aware of the facts of the case and he did not need to recite them.
But in the Fox case, the hour-long argument came and went without either Phillips or then-Solicitor General Gregory Garre using the real words at issue. Both said "f-word" or "s-word" or even, in one instance, "f-bomb." Afterward, Phillips declined to say why not, or whether he had been "instructed otherwise."
During her speech Friday, Ginsburg reviewed the Fox case and said, "the words, I'm told, were spoken" at the 2nd Circuit argument. Then came the disclosure. Matter-of-factly she added, "the lawyers were alerted that some of the justices might find that unseemly, so only the letters 'f' and 's' were used in our court."
Ginsburg did not say which justices might have been offended, nor did she say who alerted the lawyers -- though it seems unlikely that such a command, speaking for several justices, would have come from anyone other than Chief Justice John Roberts Jr., either directly or through the clerk of the court. Phillips could not be reached for comment, but now it is clear why he did not use the words; the Court told him that some justices would be offended if he did.
GINSBURG WILL MISS SOUTER'S FRIENDLY 'TAP ON MY ARM'
On Monday morning there were even more gems from Ginsburg to report, contained in an op-ed column that appeared Sunday in the "Concord Monitor" in Souter's home state of New Hampshire.
Ginsburg wrote fondly about her departing colleague, calling Souter a man who "thrives in his work, but does not like celebrity status." Souter was a great raconteur, she added, whose stories at the justices' conferences "helped relieve tensions."
But she acknowledged that Souter, whom she sits next to on the bench, was a special help "on mornings after a very long night at my desk." On such days, even as he was engaged in asking questions of the advocates, he kept an eye on her. "I could rely on him for a gentle tap on my arm when I was in danger of giving way to sleep."
Ginsburg also revealed that in the shuffle of office space that usually follows a retirement on the Court, she will be taking over Souter's space after he departs. "Though he will be many miles away," Ginsburg wrote, "the move will be a constant reminder of the prince of a man with whom I had the privilege to serve."
This article first appeared on The BLT: The Blog of Legal Times.