In Hub, Justice Ruth Ginsburg Hints at Vacancy 'Soon'

Supreme Court Justice Ruth Bader Ginsburg yesterday said there could be an opening on the nation’s highest court in the near future but didn’t say which judge might step down. Supreme Court Justice Ruth Bader Ginsburg yesterday said there could be an opening on the nation’s highest court in the near future but didn’t say which judge might step down.

In a Q and A session with students at New England Law’s annual Law Day, Ginsburg said the nine justices are photographed together only when a new member is appointed.

“We haven’t had any of those for some time,” she said, “but surely we will soon.”

Five of the nine justices are at age 70 or older, but none has given any public hint of contemplating retirement.

She declined to take questions from reporters. In a Q and A session with students at New England Law’s annual Law Day, Ginsburg said the nine justices are photographed together only when a new member is appointed.

“We haven’t had any of those for some time,” she said, “but surely we will soon.”

Five of the nine justices are at age 70 or older, but none has given any public hint of contemplating retirement.

A couple of years ago I published this Vanity which as far as I am concerned should stand as Justice Ginsburg's obituary:

Ruthie "Remidies" is Preganant! A different view of Gonzolas v. Carhart

The monotone dragged on utterly unrelieved by a variation of range or pitch, witticism, or any evidence of emotion, much less passion, when I was electrified by a sudden flash of insight: Professor Ginsburg is pregnant! How did I know? It was not obvious, it was not detectable by the eye, but I just knew it! And so it was by starting a pool on Ruthie "Remedies" Ginsburg's condition and ultimate delivery date, I was able somewhat to relieve the excruciating boredom of her lectures. Although I was the first to mark her condition, I did not win the pool.

As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” 505 U. S., at 869 (plurality opinion). See also id., at 852 (majority opinion)....

Note carefully, Justice Ginsburg is plowing the ground here to establish a moral claim to abortion preliminary to customary legal arguments based on precedent etc. She is clearly personally upset by the majority opinion and she explicitly says so in deploring the majority's use of descriptive phrases which failed to show abortionists proper respect. I believe this is an emotional reaction because Justice Ginsburg feels threatened- and rightly so-but not vicariously on behalf of physicians who can't get proper respect from Justice Kennedy.

Let us a depart for a moment from Justice Ginsburg and take note of an astonishing portion of the majority opinion (the reader should be warned that the following quoted passages of Justice Kennedy are extremely graphic) :

Haskell explained the next step as follows:

“ ‘At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and “hooks” the shoulders of the fetus with the index and ring fingers (palm down).

“ ‘While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.

“ ‘[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening.

“ ‘The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.’ ” H. R. Rep. No. 108-58, p. 3 (2003).

This is an abortion doctor’s clinical description. Here is another description from a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee:

“ ‘Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms-everything but the head. The doctor kept the head right inside the uterus… .

“ ‘The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

“ ‘The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp… .

“ ‘He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.’ ” Ibid.

At a stroke of the pen, Justice Kennedy has just put Ruth Ginsberg on the wrong side of baby killing. After four decades, at long last the Supreme Court of the United States of America is beginning to come to grips with the grotesque moral consequences of its own opinions. No wonder Justice Ginsburg is upset. How in the world can she climb to the moral high ground in the wake of this god awful description?

What she does in its way is even more appalling, more frightening, then the description cited by Justice Kennedy which we just read. What is her path to the moral high ground? We have already quoted her opening proposition: As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” Note, Justice Ginsburg does not tell us that what is "at stake" in these cases is a woman's life. She does not tell us that it is her health which is at stake (although she will argue later along those lines, but here, where she's establishing a moral case she does not argue life or health). She does not tell us that it is the elusive constitutional right of privacy which must be preserved. She does not tell us that what is at stake is "a woman's control" over her own body. Rather, she says that were fighting over a woman's right to control her own destiny.

The choice of this word is not accidental and it is not used generically to encompass issues of constitutional right, privilege, health and physical survival. Justice Ginsburg defines what she means:

“There was a time, not so long ago,” when women were “regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.” Id., at 896-897 (quoting Hoyt v. Florida, 368 U. S. 57, 62 (1961) ). Those views, this Court made clear in Casey, “are no longer consistent with our understanding of the family, the individual, or the Constitution.” 505 U. S., at 897. Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” Id., at 856. Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Ibid. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature. See, e.g., Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions ofEqual Protection, 44 Stan. L. Rev. 261 (1992); Law, Rethinking Sex and the Constitution,132 U. Pa. L. Rev. 955, 1002-1028 (1984).

There you have it, Justice Ginsburg justifies breaking open a baby's skull and sucking out its brains so that is mother can get a job ("participate equally in the economic... life of the nation") or get dates ("to participate equally in the... social life of the nation"). Lay this down next to the description presented by Justice Kennedy and one starkly sees why Justice Ginsburg's worldview is not only appalling, but frightening.

Can this woman, this mother, actually believe that it is a higher moral good to kill a baby for career advancement? Having endured the grinding boredom of attending lectures three hours a week for a year from Justice Ginsburg about 40 years ago, I can personally confirm that she is one of the coldest fish who ever swam in the chill waters of moral relativism. Otherwise, I cannot answer the question.

There is, however, another clue in the quoted portion of her opinion which, significantly, is where she feels compelled to set forth the overarching moral justification for abortion. Quoting Casey she says "Their [women's] ability to realize their full potential, the Court recognized, is intimately connected to' their ability to control their reproductive lives.”' Is not a reasonable man (okay a reasonable woman too-the phrase is used in its generic sense) entitled to ask, in a reproductive process that consumes nine months, from seduction to birth, at what point does the woman need to exercise "control?" Could she have evaded the seduction? Could she have been on the pill? Could she have provided a condom? Could she have taken a morning after pill? Could she have simply kept her knees together? Could she have planned her pregnancy and her career more intelligently- as Justice Goldberg evidently did in her own life about 40 years ago? Could she not have worked it out with her employer? Could she put the baby up for adoption? In this nine-month and longer period of time are there no other points of intervention in which a pregnant woman can “control her reproductive life” except during the last minutes counting down to a healthy birth?

When compared to the moral catastrophe of dismemberment of a baby, the choices of this apocryphal woman are feckless in the extreme. (So hapless is such an apocryphal woman that one is compelled to challenge the cited "finding" in Casey Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” -What talent? What capacity? Why would any employer want such a loser? Cannot such a "talented" woman make better choices? ) Why does Justice Goldberg exalt this choice over everything else? Why is it necessary to dismember babies?

I do not attack Justice Ginsburg for her intellectual acuity. I concede that she has as fine a mind as now sits on the court, Justice Scalia himself not excepted. She will go on in her dissent to cogently argue issues of the woman's health but it no longer carries the same weight. The debate on abortion has now forever changed. Justice Ginsburg's moral compass has been exposed as having no true North. With ultrasound providing the visual confirmation of Justice Kennedy's description, we have moved to a new point of departure. Justice Ginsburg will carry on to the bitter end, living in her 1960s world of extreme feminism and seeing the whole world through the prism of the ACLU but she will no longer set the terms of the debate.

I vividly recall inwardly cringing and writhing every time President Bill Clinton alluded to his nomination of Ruth Ginsberg to the Supreme Court with a goofy look of triumph on his face as he pointed to her as a credit to his administration. She was there because she was a feminist and because she was female. Ultimately, and I mean only after decades, history will judge her as it judges Janet Reno, who occupied her place for the same shallow reasons. Let her be enshrined by the Clintons as the woman who "did it all" with both career and children- presumably without resort to the abortion which she makes so cheap- nevertheless, in the fullness of time, the juridical epitaph for Justice Ginsburg will be that political correctness is no substitute for The Fear of God.

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