A reader forwarded me a blistering article from far-left Mother Jones magazine excoriating Ruth Bader Ginsburg for not retiring prior to 2014, when Democrats controlled the White House and Senate, allowing them at the time to appoint a Ginsburg-like liberal Justice.

The article by Stephanie Mencimer was from November 2018, and seemed a precursor to what is to come, What the Cult of Ruth Bader Ginsburg Got Wrong. The article was blistering — but I repeat myself — asserting that Ginsburg created a cult of media personality that concealed how frail she was to perpetuate the image of “Notorious RBG”. The article first lays out the history of calls from liberals for Ginsburg to retire in her late 70s:

The calls for Ginsburg to step down began in 2011 when Randall Kennedy, a Harvard law professor and former clerk to the late Thurgood Marshall, wrote a piece in The New Republic gently urging Ginsburg, then 78, to retire while Obama was in office. (He had suggested the same of Justice Stephen Breyer, now 80.) Kennedy was publicly airing private concerns among Democrats that it could be Ginsburg’s last chance to be replaced by a Democrat.

After Obama’s 2012 reelection, the Ginsburg retirement calls came with a new urgency. In December 2013, the National Journal ran a piece titled, Justice Ginsburg: Resign Already!, in which writer James Oliphant observed that the passage of Obamacare would likely hand Senate control to the Republicans in 2014, thus preventing Obama from naming a Ginsburg successor. His concerns were echoed by prominent liberal legal scholars, notably Erwin Chemerinsky, now dean of the University of California-Berkeley law school, who wrote in early 2014 in the Los Angeles Times, “I do not minimize how hard it will be for Justice Ginsburg to step down from a job that she loves and has done so well since 1993. But the best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor.”

In response to the retirement calls (mostly from men), Ginsburg gave an interview to the New York Times’ Adam Liptak laying out the reasons she planned to ignore them. “There will be a president after this one and I’m hopeful that that president will be a fine president,” she said. Ginsburg added that she planned to keep working “as long as I can do the job full steam.”

Mencimer connects Ginsburg’s refusal to retire to the rise of the Notorious RBG personna:

In retrospect, it doesn’t seem like a coincidence that the making of Notorious RBG happened at a time when many liberals were begging her to step down. The canonization began in 2013, after Ginsburg issued a furious dissent in Shelby County v. Holder, a case that gutted a big chunk of the Voting Rights Act. Inspired, New York University law student Shana Knizhnik launched a “Notorious R.B.G” Tumblr. The meme took off and ultimately led to a 2015 book, Notorious RBG: The Life and Times of Ruth Bader Ginsburg, which Knizhnik co-authored with fellow fangirl Carmon, then an MSNBC reporter.

Ginsburg has since been tattooed on women’s arms, immortalized in song and a children’s book, and featured on SNL. She’s had her face plastered on everything from tote bags to water bottles. This merchandising could not have happened without the justice’s blessing; the law gives her a fair amount of control over the use of her image, as she well knows. Rather than start copyright battles, Ginsburg has encouraged her cult following. She assisted Carmon and Knizhnik with their book, appeared in the CNN documentary and makes a cameo in On the Basis of Sex, carries an RBG tote bag in public, distributes RBG T-shirts to friends and admirers, and generally has reveled in her celebrity.

Perhaps the savviest element of Ginsburg’s pushback against calls for her retirement is the promotion of her workout regime. Details of it appear in Notorious RBG, and Ginsburg allowed the RBG documentary makers to film her doing pushups and tossing a medicine ball—proof, the film implies, that she is nowhere near death’s door.

This media personna of Notorious RBG was something of a charade, according to Mencimer, because Ginsburg in reality was more frail than she allowed to be known:

Ginsburg’s turn as an unlikely pop culture heroine has been facilitated by social media, but it could never have happened were cameras allowed in the Supreme Court. If you pay attention to Ginsburg’s public appearances, it’s pretty clear many are carefully stage managed; video of her is tactfully edited. She’s usually shown sitting graciously in a chair, or linking arms with someone as she walks, as though from affection and not from need. But in the courtroom, away from the cameras, she projects a very different image—the one that probably inspired all those liberal lawyers to her call for her timely retirement seven years ago.

About a week before her latest fall, I sat through a pair of tedious Supreme Court arguments about arbitration, so I got to see the Ginsburg most Americans do not. She was engaged in the arguments, but her speech is increasingly difficult to understand. As has long been the case, people strained to listen when she asked a question—a hot bench went quiet.

When a Supreme Court session adjourns, the public isn’t allowed to depart until all the justices have left the bench. After the arbitration arguments were gaveled to a close, I got up to leave with the rest of the onlookers. But then everyone stopped. All of the justices had left except for Ginsburg, who was having trouble getting out of her chair. There was an embarrassed silence as members of the press, the bar, and the public tried not to gape as Ginsburg mustered the courage to descend a single step off the bench and finally disappeared behind the red curtain. The contrast between the real-world Ginsburg and the comic-book superheroine of social media was striking….

It’s not considered polite to point this out, but Ginsburg has been falling asleep on the bench during oral arguments for years. Back in 2006, she dozed off during a redistricting argument for a good 15 minutes—long enough for the courtroom artist to sketch her in repose. The Washington Post’s Dana Milbank wrote, “It’s lucky for Ginsburg that the Supreme Court has so far refused to allow television in the courtroom, for her visit to the land of nod would have found its way onto late-night shows.”

The result, Mencimer concludes, is that the window of opportunity closed on Obama being able to get a liberal replacement through the Senate when Repblicans took control in 2014:

The RBG action figures and the pushup videos will be a paltry balm for the damage likely to be done to racial equality, LGBT rights, and reproductive freedoms if Trump is allowed to replace Ginsburg. By refusing to gracefully transition off the court when Obama could have named her successor, she has raised the very real risk of her seat being filled by someone who will spend a generation trying to undo all she worked for.

If that happens, RBG will become truly notorious.

That was in 2018. It’s now 2020, and Ginsburg has died with Trump as president. It’s not certain that Trump will be able to both nominate and have confirmed a conservative Justice to fill the vacancy, but he’s going to try. And if Trump wins reelection, it’s a certainty.

Already, there are rumblings of blaming Ginsburg hanging on so long. That blame is couched in terms of “don’t blame her” but then blaming her. New York Magazine’s The Cut has an article by Rebecca Traister that does just that, It Shouldn’t Have Come Down to Her:

As we quietly finished the meal, our phones buzzing with grief and shock, my father showed me the messages he was already receiving from fellow liberals and leftists, describing in vivid terms how angry they were at her….

This rage toward a beloved, history-making woman who just died will feel — and will be — profane and grotesque. It will be more than a little sexist, because blaming every bad outcome on an old woman you deem selfish in her professional self-determination, and on the Resistance Moms who “Yas Queen” her, is an endlessly gratifying strain of liberal misogyny.

It will also, to some degree, be fair.

Ruth Bader Ginsburg made a choice that turned out wrong. She wanted to keep doing the work she loved and was good at and that mattered; she didn’t want to stop before she was ready. Like so many others, she believed Hillary Clinton would likely win in 2016. And like so many others, she was wrong about that. Now there is a good chance that her replacement will be chosen by Donald Trump, a president who came to power on malignant racism and sexism and who will gain, in her death, the ability to offer America’s right wing what they have worked toward for 60 years: nearly full power to roll back, via the court, the disruptive gains made by the social movements of the 20th century on behalf of marginalized people.

So I understand why people will be furious at Ruth Bader Ginsburg and why they will say so loudly, in raised tones that convey their own assurance that they would have made the right choice, had they been her.

Liberal journalist Emily Bazelon is questioning why Ginsburg didn’t retire earlier, something Mencimer from Mother Jones notes is contrary to what Bazelon was saying back in 2013, when she called such talk sexist:

Bazelin has an op-ed in the NY Times which follows the blame her, but don’t blame her format:

The timing of Ginsburg’s death on Friday at 87, from complications of a recurrence of pancreatic cancer, and President Trump’s determination to quickly confirm a successor, have prompted a gnawing question among many liberals: Why didn’t Ginsburg resign years earlier, when President Barack Obama could have named a nominee for her seat? Ginsburg’s love for what she called her “good job” — serving as a Supreme Court justice — and her focus on the representation of women help explain her decision to stay. The epic political battle over confirmation could affect the results of the November election and change the trajectory of American law for decades….

A few years later, when Ginsburg was in her early 80s and President Barack Obama was in his second term, calls for her to retire sounded mostly from male academics and writers. But Ginsburg by then had new celebrity status as the Notorious R.B.G….

After interviewing people who knew Ginsburg, I wrote an article for Slate in late 2013 arguing that the public calls for her to retire then, however sensible (and now prescient), wouldn’t work. She was the senior member of the court’s liberal bloc, with the power to assign and more often write important dissents. She reached the pinnacle of her profession by refusing to let other people tell her what she could do….

Then Trump defeated Hillary Clinton to win the 2016 presidential election, upending the gamble Ginsburg had taken. “I think that Mother, like many others, expected that Hillary Clinton would win the nomination and the presidency, and she wanted the first female president to name her successor,” Jane Ginsburg emailed me on Sunday.

(added) J.J. Goldberg in the leftist Jewish Forward writes, Ruth Bader Ginsburg’s Tragic Mistake:

Her one great mistake was to overestimate her vitality and underestimate the national abyss that lay ahead. In so miscalculating she let her own needs, immediate and urgent, supersede a theoretical future threat that might unmake her legacy, undo the good she had wrought for Americans and threaten the future of American democracy. Her miscalculation now seems likely to become a tragedy of near-Shakespearean proportions.

So blame her, don’t blame her. It’s hard to see how that approach will hold up if and when Trump fills the vacancy with a conservative female jurist. It will fester, and it will not take long for “blame her, don’t blame her” to become “blame her.”

 

 
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