When U.S. Supreme Court Justice Ruth Bader Ginsburg was confirmed to the high court in 1993, it was by a 96-3 vote from the U.S. Senate. While the three votes against her all came from conservative Republicans, the justice remarked Tuesday on the importance of that vote, which was not divided along party lines.
Ginsburg, who was interviewed Tuesday by New York Law School professor Nadine Strossen as part of the Sidney Shainwald Public Interest Lecture, said the same was true for Justice Stephen Breyer, who was also confirmed in the ’90s. But for the last four nominees, she said, it has been different.
“The vote divided on party lines, and this is a plague on both your houses because that was true not just of Elena Kagan and [Sonia] Sotomayor, but also my current chief, Chief Justice [John] Roberts, and Justice [Samuel] Alito,” said Ginsburg.
Despite the current trend, Ginsburg remains optimistic that the confirmation process will return to being less divided by party. “My hope is that we will one day get back to the way it was, and the way it should be,” she said. “I think it will happen. And I expect to live to see it.”
Ignoring party lines is not only important for the confirmation process, but Ginsburg explained that it’s also integral to the way the justices work with one another. “We know that the institution can’t work that well for the people of the United States if we don’t respect, and in most cases genuinely like, each other,” she said. “We begin every conference and every sitting day by going around the room, each justice shakes hands with every other, and that’s to say— you circulated a nasty dissent yesterday— but we’re all in this together.”
Ginsburg was later asked what her advice is to law students and lawyers when it comes to advocating before the high court. For oral advocacy, she said the key is to be flexible. “You’re there to answer the questions that are on the court’s mind. If you come with a prepared spiel, you will be distracted,” she explained. “You don’t need to lecture the court, because they will have read the main lines of your argument in your brief, so use the time.”
“And don’t have a painful expression when you’re asked a question. Welcome it and kind of ride with the wave,” Ginsburg recommended.
For brief and opinion writing, Ginsburg emphasized both clarity and brevity. “Lawyers tend to fill the space allotted, so no matter how many words we say a brief can include, even in a single issue case, the lawyers will fill it up to the last page,” she said. “Lawyers who do that are losing an opportunity to keep the court’s attention. If you want to be sure that not only the law clerk, but the justice, will read beyond the summary of the argument, then keep it clear and concise.”