Supreme Court

THE ABSURD TIMES

 

 

 

 

 

RBG

By Czar Donic

 

It is obvious that the fake justifications for not allowing Obama's last nomination to even be considered (Garland, with 11 months left before the election) will show what the Republicans really are.  Moreover, they are intent to overturn a number of cases such as Roe v. Wade and the ban on pre-existing conditions).  This is being used as a way to get trump's incompetence in dealing the pandemic which has killed more than all of our wars combined, or at least will.  Some months ago, back in March, I predicted, simply on mathematical intuition (if there is such a thing) at least a quarter million will die. It seems as though I underestimated.

At any rate, I've been asked and here oblige, with an interview about Ginsburg in Democracy Now:

 

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We look at the life and legacy of Ruth Bader Ginsburg, as well as the future of the Supreme Court, in a wide-ranging interview with Dahlia Lithwick, senior editor at Slate, where she is the senior legal correspondent and Supreme Court reporter. Ginsburg died September 18 at the age of 87 after serving 27 years as a Supreme Court justice, where she became the most prominent member of the court's liberal wing. Her death just 46 days before the November election sets up a major political battle over her replacement, with President Trump and many Senate Republicans vowing to nominate and confirm a right-wing judge to fill her seat by Friday or Saturday. In 2016, Senate Majority Leader Mitch McConnell refused to hold confirmation hearings for Merrick Garland, President Obama's pick to replace Justice Antonin Scalia, who died 269 days before the election. "Hypocrisy doesn't begin to touch on that," says Lithwick. "The court is profoundly misaligned both with popular opinion polling and with the will of this country."

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Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We spend the hour looking at the life and legacy of Ruth Bader Ginsburg, as well as the future of the Supreme Court. Ginsburg died on Friday at the age of 87 after serving 27 years as a Supreme Court justice, becoming the most prominent member of the court's liberal wing.

Ginsburg first gained fame in the 1970s, when she co-founded the Women's Rights Project at the American Civil Liberties Union, where she argued six gender discrimination cases before the Supreme Court, winning five. She once famously quoted the abolitionist Sarah Grimké during one of her oral arguments.

RUTH BADER GINSBURG: In asking the court to declare sex a suspect criterion, we urge a position forcibly stated in 1837 by Sarah Grimké, noted abolitionist and advocate of equal rights for men and women. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

AMY GOODMAN: Ruth Bader Ginsburg became a federal appellate judge in 1980, then, in 1993, was sworn in as just the second female Supreme Court justice. During her Senate confirmation hearing, she openly defended the right to have an abortion.

JUDGE RUTH BADER GINSBURG: This is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.

AMY GOODMAN: The Senate confirmed Ginsburg 96 to 3.

As a Supreme Court justice, she was a strong supporter of reproductive rights, women's rights, expanding LGBTQ rights and preserving President Obama's Affordable Care Act.

Some of Ginsburg's most memorable opinions were dissents. In 2013, she dissented when the court struck down a key section of the Voting Rights Act. She wrote, quote, "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet," unquote.

While Ginsburg was known to be a leader on the court's liberal wing, she sometimes sided with her conservative colleagues. She joined the conservative majority approving a natural gas pipeline being built under the Appalachian Trail. She also approved the Trump administration's policy of expediting deportation of people seeking asylum.

Ginsburg's death has set off a battle in Washington. She died on September 18, just 46 days before the November election. In 2016, Senate Majority Leader Mitch McConnell refused to hold confirmation hearings for Merrick Garland, President Obama's pick to replace Justice Antonin Scalia, who died nearly nine months before the election. At the time, McConnell said, quote, "The American people should have a voice in the selection of their next Supreme Court justice." But now McConnell has vowed to hold a vote on Trump's pick to replace Ginsburg, setting off a battle in the Senate, where the Republicans maintain a 53-to-47 advantage. The Democrats need 51 votes to block a potential nominee. Two Republican senators, Lisa Murkowski and Susan Collins, have already said they oppose voting on Ginsburg's replacement before the election.

President Trump is expected to nominate a replacement for Ginsburg as soon as Tuesday. Top contenders include federal judges Barbara Lagoa and Amy Coney Barrett. If the Senate confirms Trump's nominee, it will give conservatives a 6-to-3 advantage on the court. It would also mean the majority of the justices on the court were selected by presidents that did not win the popular vote.

Days before she died, Justice Ginsburg [dictated] a final statement to her granddaughter. It read, quote, "My most fervent wish is that I will not be replaced until a new president is installed," unquote.

Over the weekend, vigils were held outside the Supreme Court and across the country to remember Ruth Bader Ginsburg.

Later in the program, we'll be joined by a man Ginsburg once called her favorite plaintiff, and we'll be joined by Julie Cohen, co-director of the Oscar-nominated documentary RBG. But we begin today's show with Dahlia Lithwick. She's senior legal correspondent at Slate.com, her latest piece headlined "What Ruth Bader Ginsburg Would Want America to Do Now."

Well, Dahlia, welcome to Democracy Now! Thanks so much for joining us. I know this is a deeply painful day to you both personally and politically. Talk about how you came to know Justice Ginsburg, what she meant to you, and then what you think about what's happening today.

DAHLIA LITHWICK: Thanks, Amy. And thanks for having me.

I got to know her, actually, latish in my career. I had been covering the court for some time, and Justice Ginsburg gave an interview to The Wall Street Journal's Jess Bravin, and he asked her who she read. And she named a couple people, and then she said, "Oh, I read that girl at Slate, Dahlia Lithwick." And then she called me "spicy." And I think she liked the fact that I was irreverent. And shortly after that, I got to interview her for the first time when Glamour named her their woman of the year, and she gave me an amazing interview. And then, just most recently, I got to sit down with her actually in late January, right before the court shut down for COVID. I got to spend an hour with her just talking about her experience being one of nine women who started at Harvard Law school in a class of 500 men. And so, I've just been incredibly blessed in my connections to her.

And, you know, as to what she meant to me, I mean, I started law school just as she was being elevated to the bench. And I think I can say, with great confidence, that had I not seen Sandra Day O'Connor and Ruth Bader Ginsburg on the Supreme Court, I would not, probably, have felt that there was a place for me at law school. I know thousands and thousands of women feel the same. And then, simply as a marker of what a woman can do, who at every turn is faced with closed doors, lost opportunities, unbelievable discrimination, and how at every turn she took that, turned it around and turned it into another success. I just think the arc of her life, Amy, has been to fight for the women who came after and to bear the responsibility of the women who came before who couldn't finish the fight.

AMY GOODMAN: So, talk about what you feel are her most important contributions.

DAHLIA LITHWICK: Well, I think you've identified — I think she sort of has three acts in America. The first is her unbelievable litigation career. At the Women's Rights Project at the ACLU, she almost single-handedly became the architect of a series of what looked to be small, incremental cases that fought consistently to do away with gender discrimination as built in the law. And, of course, the genius of those cases — I know you're going to talk about this later — is that she would bring them on behalf of men, not women, but men who were subject to discriminatory laws because the law assumed that men went out to work and women stayed home as caregivers. And she built, slowly, the same way Thurgood Marshall built in the world of race equality, one case after another after another that dismantled that patriarchal view of the world. And so, there's that piece of it, which is the legal career that ends up really enforcing the idea of equality under the Constitution.

Then there's her time on the court and the enormous series of cases she both authored and later dissented in, where she put that into effect, most famously when the Virginia Military Institute — she forced them to accept women cadets, writing that it is discriminatory to assume that women cadets can't go to that school — changed the landscape forever.

And then, I think, this third act, which we really only saw in the last decade, where she became this tiny, five-foot, less-than-a-hundred-pound rockstar, when she became "Notorious RBG," and everyone had a tote bag, and everybody had the earrings, and everybody knew her dissents by heart. She became larger than life, certainly larger than one associate justice on the court. And I think she just became a symbol, particularly in the last four years, for women who felt powerless and hopeless, that you don't get to feel powerless and hopeless. You just keep fighting.

AMY GOODMAN: And how she became "The Notorious RBG"?

DAHLIA LITHWICK: It came from, you know, toward the end of her career. She was writing — I think you noted this, Amy — many more dissents than she was writing majority opinions. And her dissent in the Shelby County case, the one that gutted the heart of the Voting Rights Act, that line about doing away with preclearance is like chucking your umbrella because it worked, that got set to music. And a whole bunch of young women really, I think, constructed this idea that she was in fact not all that different from a rapper, and that she was this icon and that her words needed to be disseminated beyond the four corners of opinions out into the world. At that point, her Hobby Lobby dissent then was also set to music.

Time and time and time again, things that she did that might have been ignored by mass culture got pushed out under the guise of this is this tiny little woman with the tilted crown. She is changing the world, not within the auspices of the court — she's writing dissent — but the words that she is giving, particularly to young people and particularly to young women, the language of dissent, the language of using the law and your words to effect change. It just became a phenomenon, the likes of which I've never seen on the court.

AMY GOODMAN: But, Dahlia Lithwick, she certainly wasn't the most progressive member — probably Sonia Sotomayor is. And in the last years, she sided with the conservative majority when it came to building a natural gas pipeline, when it came to approving the Trump administration's policy of expediting deportation of people seeking asylum, even, well, ultimately apologized for calling Colin Kaepernick's move to take a knee "dumb."

DAHLIA LITHWICK: I think that the ways that we misapprehend Ruth Bader Ginsburg are really at the core of what you just said, which is I really truly believe that she was the most small-C conservative radical on the court, and that if you thought she was out on the hustings burning her bra, breaking things down, taking things apart, then you kind of missed the real story, because she was fundamentally a creature of the 1950s and '60s. She was very, very much not a '70s radical, certainly not a pink pussy hat radical.

She was someone who, when she was on the D.C. Circuit Court of Appeals, the lower federal court, aligned her votes with Robert Bork and Antonin Scalia, more than anyone else. She was fundamentally a moderate centrist, often conservative, jurist. She was very, very, very much given a knock for not hiring nearly enough minority clerks. All of that is part of the picture.

AMY GOODMAN: Had one African American clerk as a Supreme Court justice.

DAHLIA LITHWICK: And I think we have to be very, very honest about the fact that she was both the architect of the gender equality world we live in now and also that she was very, very effective in part because she was a get-along person. She was very much conciliatory, always cared about decorum, meeting people where they were. She was both those things, Amy, and I think, in some ways, we have to respect both parts of it.

AMY GOODMAN: I want to turn to Donald Trump now at the North Carolina rally he held on Saturday, where he said he plans to nominate a woman to replace Justice Ruth Bader Ginsburg, and seemed to imply he had until Inauguration Day 2021.

PRESIDENT DONALD TRUMP: Both the White House and the Senate majority have a moral duty to fulfill the promises they made to the voters. And that is exactly what we're going to do. We said that if, for any reason, we have a vacancy on the United States Supreme Court, we will fill that vacancy. We're not going to say — and, by the way, we have plenty of time. There's a lot of time. You know, you're talking about — you're talking about January 20th, right?

TRUMP SUPPORTERS: Fill her seat! Fill her seat! Fill her seat! Fill her seat!

AMY GOODMAN: So, you can hear the people chanting "Fill her seat! Fill her seat!" Trump now nominating a third justice to a lifetime apartment on the Supreme Court. If you could talk about what he said he's going to do, who some of the top candidates are to fill Ruth Bader Ginsburg's place?

DAHLIA LITHWICK: I think the single most important thing to do is not waste a lot of our brain cells trying to reconcile the message that he and Mitch McConnell are putting out now with the message that Mitch McConnell put out in 2016, where, with nine months left to go, they said, "It's too — way, way, way too late for a president to nominate someone. We're going to let the voters decide." I think we can agree hypocrisy doesn't begin to touch on that.

And so, then the question is: Can he rush someone through? I should just note for your audience that the polling I saw, effective yesterday, said 63% of the country, including 50% of Republicans, don't think somebody should be jammed onto the court just in order to fill the seat. But I guess he's going to press through.

The folks who are on the shortlist, he has said he wants to nominate a woman, so it's largely women. Probably the front-runner is Amy Coney Barrett. He said, when he had her on the shortlist for what ultimately became the Kavanaugh seat, that he was saving her for when he could fill the Ginsburg seat. So I think she's probably the top contender, and she's also been fully vetted. She's only 48 years old. She sits on the 7th Circuit Court of Appeals. And I think all of the nominees that he's looking at are people in their late forties, early fifties, with very, very, very compressed judicial records. She's only been on the bench for a couple of years. But I think it's fair to say that on case after case after case, including abortion, including age discrimination, asylum seekers and guns, she has been on the hard, hard-right side of the fence, often in fact getting disdainful statements from Reagan and Bush appointees about how radical her worldview is. The other thing about her is she very, very much has written about how religion informs her judicial thinking. And when that was raised at her lower court hearings, it was seen as a huge, huge affront. So, she brings to the table the ability to be deeply religious, and it's impolitic, apparently, to question her about it.

Barbara Lagoa is now on the shortlist. She's only 52. She's on the 11th Circuit. She's one of the judges who just ruled that all of those taxes and fees that felons need to pay prior to voting is not a poll tax and that that can be enforced, which would disenfranchise thousands and thousands of formerly reenfranchised felons in Florida.

Joan Larsen is probably the third person on the shortlist. Only —

AMY GOODMAN: And just to say, on the issue of Lagoa, she is Cuban American. She is from the swing state of Florida. A Latinx swing state person on the Supreme Court would serve President Trump, in his eyes.

DAHLIA LITHWICK: Would serve him well in Florida. And also she's a DeSantis acolyte, so I think that that shores up Florida.

Joan Larsen is the last person, 51 years old, on the 6th Circuit. But I think he's — Trump is still looking at several other very, very young women. We will know, I guess, as soon as tomorrow who he settles on.

AMY GOODMAN: I wanted to, finally, turn to Alexandria Ocasio-Cortez. On Sunday, she and the Senate Democratic Leader Chuck Schumer went to Ruth Bader Ginsburg's high school, which is also Schumer's high school, James Madison in Brooklyn, and urged supporters to call on Senate Republicans not to vote on any Supreme Court nominee.

REP. ALEXANDRIA OCASIO-CORTEZ: We must use every tool at our disposal, from everyday people, especially in swing states. We need everyday people to call on senators, to call on folks on the bubble, to call Republican senators, to make sure that they hold us vacancy open. And we must also commit to using every procedural tool available to us to ensure that we buy ourselves the time necessary.

AMY GOODMAN: That's Congressmember Alexandria Ocasio-Cortez. It's pretty rare to see her and Chuck Schumer together. They were by themselves in front of James Madison High School. But, Dahlia Lithwick, what are those things you think could be done right now for people deeply concerned about a third Trump appointment to the Supreme Court?

DAHLIA LITHWICK: I think they have to make noise, and I think that's what she was saying. I think you led with this. It's so important. It cannot be the case that Dems have won the popular vote in seven out of the eight elections from 1992 'til now, and yet the GOP has appointed 14 out of 18, now seek 15 out of 19, Supreme Court seats. It is a majority — a minority-majority court, because minority-majority presidents and a minority-majority Senate keep ratifying it.

And I think what she's saying is, we have to stop behaving as though the court belongs to the Republicans. They campaign on it. They vote on it. It's a single-minded issue for them. And Democrats have tended, in the last few election cycles, to not step up, to act as though maybe we just rent seats there occasionally. The court is so profoundly misaligned both with popular opinion polling and with the will of this country. And I think the idea that you just accede to that because it's not an issue for Democrats is what is really, really going to have to change.

And so I think she's right. It means calling your senators. It means writing the op-eds, writing the letters and really, really signaling to the Senate that votes will move, votes will be lost, seats will be lost, if what is done in the next couple of weeks is allowed to go through.

AMY GOODMAN: And the possibility of a Biden administration increasing the number of justices on the court?

DAHLIA LITHWICK: Well, you heard AOC say it. I think that none of the structural court reforms that are being floated, whether it's term limits, whether it's adding seats to the lower courts and the Supreme Court, whether it's jurisdiction stripping — there are a lot of really, really thoughtful ideas circulating about how we do structural court reform to kind of reverse the minority-majority rule that has absolutely taken a hold in this country. And I think what she's saying is, we can't be afraid to say there will be consequences if the court is treated as though it's Mitch McConnell and Donald Trump's plaything.

AMY GOODMAN: Dahlia Lithwick, thanks so much for being with us. And condolences to you, because this is a personal loss, as well, for you, interviewing her just before the COVID lockdown. Dahlia Lithwick, senior editor at Slate.com, senior legal correspondent and Supreme Court reporter. Her latest piece, we'll link to, "What Ruth Bader Ginsburg Would Want America to Do Now."

When we come back, we turn to one of the directors of the Oscar-nominated documentary RBG, Julie Cohen. Stay with us.

[break]

AMY GOODMAN: "We Shall Be Known," being sung at a Saturday vigil outside the Supreme Court for Ruth Bader Ginsburg.

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In her later years, Supreme Court Justice Ruth Bader Ginsburg was internationally known simply as her initials — RBG — and a 2018 documentary film by the same name about Ginsburg's legal career, personal history and unexpected celebrity became a surprise smash hit. We speak with Julie Cohen, co-director of the Academy Award-nominated documentary "RBG," about Ginsburg's early years and leadership in fighting for equal rights for women, including arguing a case before the Supreme Court with all male justices who were condescending to her. "She never let that condescension get her down," notes Cohen. "She was a deeply strategic person."

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Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! The Quarantine Report. I'm Amy Goodman, as we continue to look at the life and legacy of Supreme Court Justice Ruth Bader Ginsburg, who, by the end of her life, was internationally known simply by her initials — RBG — or, as one best-selling biography put it, "The Notorious RBG." And a 2018 documentary film about her legal career, personal history and unexpected celebrity premiered at Sundance and became a surprise smash hit. It's called RBG. This is the film's trailer.

JUSTICE RUTH BADER GINSBURG: "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

ANNOUNCER: We welcome today Justice Ruth Bader Ginsburg.

NINA TOTENBERG: She's become such an icon.

FAN: Would you mind signing this copy?

JUSTICE RUTH BADER GINSBURG: I am 84 years old, and everyone wants to take a picture with me.

UNIDENTIFIED: Notorious RBG.

UNIDENTIFIED: Yeah, yeah.

GLORIA STEINEM: When you come right down to it, the closest thing to a superhero I know.

NINA TOTENBERG: Ruth Bader Ginsburg changed the way the world is for American women.

JUSTICE RUTH BADER GINSBURG: I became a lawyer when women were not wanted by the legal profession.

NINA TOTENBERG: Thousands of state and federal laws discriminated on the basis of gender. She was following in the footsteps of the battle for racial equality. She wanted equal protection for women.

RUTH BADER GINSBURG: Men and women are persons of equal dignity, and they should count equally before the law.

NINA TOTENBERG: She captured for the male members of the court what it was like to be a second-class citizen.

RUTH BADER GINSBURG: The point is that the discriminatory line almost inevitably hurts women.

JUSTICE RUTH BADER GINSBURG: I did see myself as kind of a kindergarten teacher in those days, because the judges didn't think sex discrimination existed.

JUDGE RUTH BADER GINSBURG: I have had the great good fortune to share life with a partner, truly extraordinary for his generation.

JUSTICE RUTH BADER GINSBURG: He was the first boy I ever knew who cared that I had a brain.

ARTHUR R. MILLER: She is a center of power, on and off the court.

IRIN CARMON: Every time Justice Ginsburg wrote a dissent, the internet would explode.

AMINATOU SOW: I came up with a couple slogans. "You can't spell truth without Ruth."

JUDGE RUTH BADER GINSBURG: I surely would not be in this room today without the determined efforts of men and women who kept dreams alive.

AMY GOODMAN: That's the trailer for the Oscar-nominated documentary RBG. In this clip from the film, Justice Ginsburg talks about the first time she argued before the Supreme Court, in the case Frontiero v. Richardson in 1972, centering on a female Air Force lieutenant who had been denied the same housing and medical benefits as her male colleagues. Ginsburg argued the Air Force's statute for housing allowances treated women as inferior, and the Supreme Court ruled in her favor 8 to 1.

JUSTICE RUTH BADER GINSBURG: There was not a single question. I just went on speaking. And I, at the time, wondered, "Are they just indulging me and not listening, or am I telling them something they haven't heard before, and are they paying attention?"

BRENDA FEIGEN: The justices were just glued to her. I don't think they were expecting to have to deal with something as powerful as a shear force of her argument, that was just all-encompassing. And they were there to talk about a little statute in the government code. I mean, it was just — we seized the moment to change American society.

RUTH BADER GINSBURG: In asking the court to declare sex a suspect criterion, we urge a position forcibly stated in 1837 by Sarah Grimké, noted abolitionist and advocate of equal rights for men and women. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

AMY GOODMAN: Ruth Bader Ginsburg. And we're joined by Julie Cohen, who, along with Betsy West, is director and producer of the Academy Award-nominated documentary RBG.

Julie, welcome back to Democracy Now! We had you on when the film premiered at the Sundance Film Festival. We had you on through the health challenges that Justice Ginsburg has faced, and now, sadly, today, in the aftermath of her death. Can you talk about what we don't know about Ruth Bader Ginsburg, how she was shaped, her early years and those cases she argued before the Supreme Court?

JULIE COHEN: Sure. I need to gather myself a bit, because, actually, listening to that, those clips of Justice Ginsburg, feel a bit emotional in this context. I haven't been able to watch the film again since hearing of her death on Friday evening. And just listening to that quiet but centered and super-determined voice is — I found it moving in life, and now that she's passed away, is moving, as well.

Justice Ginsburg was shaped hugely, like many of us are, by her mother. You know, both her parents were from immigrant families, both from extremely modest backgrounds. And RBG's mom — at the time she was Ruth Bader, obviously — got cancer when Ruth Bader was in high school, and was quite ill for a period of time. And RBG was so close to her mother and so saddened by her mom's impending death. But her mother really used the opportunity to impart a lot of life lessons to a young Ruth Bader, to really instill in her a deep, deep ambition, a desire to put her all into education. You know, her mom told her, like, "Go find love. For sure, that's important. But, like, don't rely — you need to be independent. Like, don't rely on a man to bring you what you need in your life. You actually need to make sure you can fend for yourself." And she also had sort of some life philosophies, which were, you know, basically, "Don't waste your time on useless emotions — anger, envy, like, guilt. You know, forget those things." And RBG really took that advice to heart. I'm not saying she never got angry. Surely she did. Everyone does. But her inclination, based on what her mom said, was always to moderate that anger and really to try not to show it, to look for peace and conciliation and stability wherever she could find it.

You know, we spoke to her — in our documentary, we had a number of clips of her arguing those early cases for gender equality before the Supreme Court in the 1970s. She's arguing at this point before this group of nine male justices, who — you have to put yourself in the context of back at that time. Like, women's rights, when it first came out, people really didn't get it. Like, "I don't understand. What are women complaining about? We open the door for them. We treat them very politely. We give them rings when we propose to them. Like, we just don't — we just don't see why a woman would be complaining about her treatment in any way." And they often not only were obtuse about her arguments, but were also quite condescending to her while she was — you know, here she is, an esteemed lawyer, arguing cases before the highest court in the land, and they're kind of like making fun of her at times. And she just took it, you know, like water off a duck's back. She never let that condescension get her down.

She told us that she liked to think of herself as a kindergarten teacher — you know, not just a teacher, but a kindergarten teacher. And that's how she — she looked at these Supreme Court justices as kindergarten students who just needed to be schooled. And she did indeed school them and, I think, moved on, later in her career and as she's become this public figure of "The Notorious RBG," to kind of schooling a lot of us, not only about legal and constitutional principles, but about how to handle the tricky emotional challenges that come up for all of us, particularly people that are fighting for their rights.

AMY GOODMAN: And the case United States v. Virginia, the cases also where — and we're going to talk about this in a minute — where she used a man to demonstrate what inequality was all about?

JULIE COHEN: Yeah, I mean, such a clever — you know, she was a deeply strategic person. She was not choosing what cases to pursue just on a whim or, like, that sounds like a good, cool case. She was thinking, like, "How might I win?"

And, by the way, she was very consciously modeling her strategy after one that had happened 10 or 15 years before she was arguing her cases, with the string of Supreme Court cases argued by a young Thurgood Marshall, before he was a justice, when he was a young lawyer taking cases for racial equality. Thurgood Marshall, I believe, argued more than 30 cases before the Supreme Court, had an extraordinary win record. And the reason that he achieved so much for racially equality and for forwarding the idea of racial equality under the 14th Amendment of the Constitution, particularly, was by being strategic. He did not take every case. He looked at cases that he thought were winnable and, like, incremental, like one little step at a time. Justice Ginsburg was a student of what Supreme Court jurisprudence — she was aware of what Thurgood Marshall had achieved. And when she started to look into gender equality cases, she wanted to be like Thurgood Marshall in terms of picking cases very strategically.

And it occurred to her that there were a number of ways having to do — I mean, Stephen Wiesenfeld is going to tell you about his own case having to do with the death benefits that a man gets as a widower versus what a woman would get as a widow — that there were instances where — like, you know, say, a man having leave for child care, that kind of thing, that there were instances where men also were victimized by gender discrimination. And her view was like, people should be taken on their own terms. Like, let's view people as individuals, not as representatives of their gender. And she thought that was going to be a point that would — that might be able to sink in to some of these male justices, who just hadn't thought through the idea about women's rights at all.

AMY GOODMAN: And finally, 30 seconds, Julie, on your thoughts on her passing and what happens next?

JULIE COHEN: I am incredibly sad about her passing. I would hope, as I know Justice Ginsburg hoped, that some of these fiery dissents that she's been writing, particularly over the past 10 years, would ultimately become the basis of later Supreme Court majority opinions, where her thoughts and her legal ideas become the law of the land.

AMY GOODMAN: Julie Cohen, thanks so much for being with us, co-directed and produced the Academy Award-nominated film RBG.

When we come back, we hear from the man Ginsburg once called her favorite plaintiff. Stay with us.

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AMY GOODMAN: "The Daughter of the Regiment," performed by Luciano Pavarotti. Ruth Bader Ginsburg loved opera, reportedly spent her final weeks, right up until her death, visiting with family, exercising, working and listening to opera. And she also performed in one.

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One of the most talked-about documentaries at this year's Sundance Film Festival looks at the groundbreaking life of the nearly 85-year-old Supreme Court Justice Ruth Bader Ginsburg. 2018 marks her 25th year on the court, and she has no plans to retire. Ginsburg first gained fame in the 1970s when she co-founded the Women's Rights Project at the American Civil Liberties Union, where she argued six gender discrimination cases before the Supreme Court. In recent years, Ginsburg's public profile has soared as the court has swerved to the right. Ginsburg often now finds herself on the dissenting side of opinions. We feature excerpts from the new film and speak with its directors, Julie Cohen and Betsy West.

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Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: 2018 marked Ruth Bader Ginsburg's 25th year on the U.S. Supreme Court. We're joined now by the directors of the film, Julie Cohen and Betsy Wright. Julie is a longtime filmmaker who's made eight documentaries and was the creator of Court TV's Supreme Court Watch. Betsy West is a 21-time Emmy winner for her work as an ABC News producer, who now teaches at the Columbia School of Journalism.

Julie Cohen and Betsy Wright [sic], it is so great to see you—Betsy West, it is so great to see you both. Julie, why don't you start off by talking about why you decided to take on Ruth Bader Ginsburg as the subject of your film? Why did you decide to follow her?

JULIE COHEN: You know, "How could you not?" is almost a question with RBG. Betsy and I had each, individually, for separate projects, done interviews with her several years ago. We had followed her kind of stellar rise to rockstardom, as young women began to sort of idolize her as the Notorious RBG. And we just felt like, "You know, someone ought to do a full-dress, serious documentary covering this extraordinary woman's life. And why not have it be us?"

AMY GOODMAN: So, Betsy West, you've covered many different issues, and one of the things you've done most recently is the Makers series, women making a difference. So, Ruth Bader Ginsburg, you—both you and Julie had interviewed her separately.

BETSY WEST: Yes, yes.

AMY GOODMAN: And what most strikes you about her? If you can begin by sort of giving us a nutshell description of Ruth Bader Ginsburg, the Supreme Court justice?

BETSY WEST: Well, when you meet her in person, she's a very tiny person. And yet she has a kind of commanding presence. I think it's the contrast about her that really strikes you. She's a very serious person, the kind of person, if you say, "Hey, how are you?" she doesn't immediately jump in to tell you how she is, she thinks about it. She's very deliberate in everything she says. So, as she said to us in the interview, "I tend to be rather sober." On the other hand, she has a fabulous sense of humor. And as we discovered in the film, she loves to laugh. And so, she's a very—she's a multidimensional person, with an extraordinary life story.

AMY GOODMAN: And I want to talk about that life story. I want to first, though, go to a clip from your documentary, RBG, where Justice Ginsburg talks about the first time she argued before the Supreme Court, in the case Frontiero v. Richardson in 1972. The case centered on a female Air Force lieutenant who had been denied the same housing and medical benefits as her male colleagues. Justice Ginsburg, then the lawyer Ginsburg, argued the Air Force's statute for housing allowances treated women as inferior, and the Supreme Court ruled in her favor, eight to one.

JUSTICE RUTH BADER GINSBURG: There was not a single question. I just went on speaking. And I, at the time, wondered, "Are they just indulging me and not listening, or am I telling them something they haven't heard before, and are they paying attention?"

BRENDA FEIGEN: The justices were just glued to her. I don't think they were expecting to have to deal with something as powerful as a shear force of her argument, that was just all-encompassing. And they were there to talk about a little statute in the government code. I mean, it was just—we seized the moment to change American society.

RUTH BADER GINSBURG: In asking the court to declare sex a suspect criterion, we urge a position forcibly stated in 1837 by Sarah Grimke, noted abolitionist and advocate of equal rights for men and women. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

AMY GOODMAN: An excerpt from RBG, the documentary that's just aired at the Sundance Film Festival to much acclaim. In that clip, we also heard from Brenda Feigen, who was co-director, with Ruth Bader Ginsburg, of the ACLU's Women's Rights Project. So, Julie Cohen, let's talk about her life before she was the Notorious RBG, before she was Supreme Court justice.

JULIE COHEN: Sure. I mean, you know, that was one of the big factors making us want to make this film. A lot of the people that love her and think she's cool and know about her dissents don't really know the full story and don't appreciate how much she achieved for women's equal rights under law in her career as a lawyer, particularly during those times at the Women's Rights Project in the 1970s.

Basically, she took on a number of cases. There were six, including that one you just played, Frontiero, that she argued before the Supreme Court, winning five of them, making the case at a time when that case wasn't widely understood or even—you know, it was sort of hard for society and the male justices of the time to register the idea that, "Oh, wait, the Constitution should provide equal rights for men and women?" This was—she was following up on what Thurgood Marshall had done sort of the decade earlier—basically, a slow legal march for civil rights for people of all races—and she was applying that idea to gender and had extraordinary success with it.

AMY GOODMAN: I wanted to go to another clip. Ruth Bader Ginsburg, nominated by President Clinton in 1993. This is during her Senate confirmation hearing, when she openly defended—and this was highly unusual—openly defended a women's right to have an abortion.

JUDGE RUTH BADER GINSBURG: This is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.

AMY GOODMAN: During Ruth Bader Ginsburg's 1993 Supreme Court confirmation hearing, Republican Senator Orrin Hatch of Utah questioned her stance on abortion.

SEN. ORRIN HATCH: The so-called constitutional right to abortion, a right which many, including myself, think was created out of thin air by the court—

JUDGE RUTH BADER GINSBURG: But you asked me—

SEN. ORRIN HATCH: Yeah.

JUDGE RUTH BADER GINSBURG: —the question in relation to the Supreme Court's precedent. And you now ask me another question in relation to the Supreme Court's precedent. The Supreme Court's precedent is that access to abortion is part of the liberty guaranteed by the—

SEN. ORRIN HATCH: Well, that was just to be affirmed by—

JUDGE RUTH BADER GINSBURG: —the 14th Amendment.

AMY GOODMAN: That 1993 confirmation hearing, Betsy West, how unusual, especially in light of now, in 2018? Imagine hearing a Supreme Court justice being so open about her support for freedom to choose for women, about her support for abortion. Talk about the significance of this.

BETSY WEST: She was extremely forthright about this. She's a very principled person, and she was not going to pull her punches on this. I mean, the amazing thing is that, after that, she was confirmed 96 to 3. I know.

AMY GOODMAN: Ninety-six to three.

BETSY WEST: To three. And you heard, I mean, Orrin Hatch basically saying, "Look, we disagree, but I think you're well qualified to serve on the Supreme Court. And you've been nominated by our president, who happens to be a Democrat. That's the way this system works." It's kind of poignant and extraordinary to hear that, you know, today.

AMY GOODMAN: You both interviewed Orrin Hatch. I mean, you interviewed him for the film.

BETSY WEST: Yes, yes.

AMY GOODMAN: Did he say he would support her today? I mean, he was very laudatory of her.

BETSY WEST: Yes. Yes, he was. First of all, he said, "I love Ruth Bader Ginsburg." He said that. I was like, "What?" Really, he admires her so much. He admires her brain, and he admires her character, what she stands for. And he said, "Look, I think it's a good thing for the court to have an articulate, smart liberal on the court." He said, "I think it elevates the entire conversation, the debate." I was surprised by how forceful and strong he was in his ongoing support for her.

AMY GOODMAN: And talking about relationships that might surprise some, her relationship, Julie Cohen, with Justice Scalia and the significance of this, the history of this, before Scalia died?

JULIE COHEN: Yes. I mean, Justice Scalia and Justice Ginsburg were quite close, going back to their days together on the U.S. Court of Appeals for the D.C. Circuit in the 1980s, admired each other as kind of intellectual sparring partners and really liked and loved each other as friends. They both loved opera. They both had a lot of other intellectual interests, in theater, in literature. And the fact that they disagreed so vehemently on the law, extraordinarily, seemed to have made them closer to one another. They don't—you know, they didn't deny that it sometimes wasn't exactly pleasant. You know, after—one example that the justice has talked about is, you know, after Bush v. Gore, when they were like—you know, couldn't have been more opposed to each other's point of view, when the stakes couldn't have been higher, at one point, at the end of the evening, he gave her a call and said, "Ruth, you know, go home and take a hot bath, and we'll see each other again in the morning." And, you know, it's a kind of—

AMY GOODMAN: And for those who aren't familiar with Bush v. Gore, though they may have been familiar—become familiar with the results?

JULIE COHEN: Yes. The Supreme Court decision that ended the recount in Florida and led to George W. Bush becoming president of the United States.

AMY GOODMAN: Being chosen as president by the U.S. Supreme Court.

JULIE COHEN: By the U.S. Supreme—

BETSY WEST: And she dissented.

JULIE COHEN: Right.

BETSY WEST: Yes.

JULIE COHEN: Justice Scalia was one of the—one of the architects of the majority decision, saying—having George Bush become the president. And Ruth Ginsburg wrote a—wrote one of several—I think there were a number of dissents in that case, but was one of the dissenters in that case.

AMY GOODMAN: And this issue of Ruth Bader Ginsburg being the dissenter, young people who are following her now, that's all they would think about. But that actually wasn't always the case. And you have a really interesting sort of image that you have in the film, RBG, where you show her right in the center there, you know, much closer to the conservatives, and then how she moves to the left. Betsy West?

BETSY WEST: Yeah, as one of our interviewees said, she was never meant to be the great dissenter. She always wanted consensus. And she still wants consensus. She has a very practical view of the law, and she's always trying to bring people over to her side. It's very important to her that she have collegial relationships with her fellow justices and that she makes reasoned arguments. She's not a bomb thrower. However, when push comes to shove and she feels that the Constitution is not being followed, she's not afraid to issue a very scathing dissent. And as she says, "Look, I'd rather be in the majority. But when I'm not, I will write a dissent."

AMY GOODMAN: And she's got the doily collars. That's what I call them, because they look like doily.

BETSY WEST: Yeah.

AMY GOODMAN: The different ones.

JULIE COHEN: Jabot.

AMY GOODMAN: What did you say?

JULIE COHEN: Yes, jabot is the name of them.

AMY GOODMAN: Oh, excuse me. Excuse me.

BETSY WEST: They call them—they call them jabot. She and Sandra Day O'Connor came up with this together. And, yes—

AMY GOODMAN: And she's got the different ones for when she's in the majority opinion—

BETSY WEST: Yes.

AMY GOODMAN: —or when she's expressing the dissent.

BETSY WEST: The dissent, yes. It's her—she has a great fashion sense, and she brings her fashion sense to her clothing on the Supreme Court.

JULIE COHEN: And, you know, when Supreme Court justices come out to read opinions, it's not publicly known yet what the decision is going to be. So, if you're in the courtroom—of course, there aren't cameras in the courtroom, but if you're in the courtroom, you get a preview a few minutes earlier, because from Justice Ginsburg's collar, if she's going to read an opinion and she's wearing that lovely sort of black, sparkly, fan-shaped collar, you know she's about to deliver a dissent.

AMY GOODMAN: We're going to go to a break, and then we're going to come back and hear a really interesting comment from Justice Ginsburg just yesterday. She spoke at the Filmmakers Lodge. She was interviewed by NPR's Nina Totenberg, and she talks about this seminal, foundational work of Catharine MacKinnon and how it changed her view also of women's rights and what the whole issue of gender harassment is all about. This is Democracy Now! We're talking about a film that just premiered at the Sundance Film Festival. It's called RBG and is about the Supreme Court Justice Ruth Bader Ginsburg. Stay with us.

[break]

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I'm Amy Goodman. We're broadcasting from the Sundance Film Festival in Park city, Utah, and we will be here for the week. Yes, from the Sundance Film Festival, where a film about Supreme Court Justice Ruth Bader Ginsburg called RBG has just premiered. Well, before the film, on Sunday, Justice Ginsburg, who flew in to Park City, Utah, this weekend, was interviewed by NPR's Nina Totenberg, a dear friend of Ruth Bader Ginsburg. Totenberg asked Ginsburg if she had ever been sexually harassed herself. This was the Supreme Court justice's answer.

JUSTICE RUTH BADER GINSBURG: The answer is yes. Every woman of my vintage knows what sexual harassment is, although we didn't have a name for it. The attitude to sexual harassment was simply "Get past it. Boys will be boys."

Well, I'll give you just one example. I'm taking a chemistry course at Cornell, and my instructor said—because I was uncertain of my ability in that field—he said, "I'll give you a practice exam." So he gave me a practice exam. The next day, on the test, the test is the practice exam. And I knew exactly what he wanted in return. And that's just one of many examples.

This was not considered anything you could do something about, that the law could help you do something about, until a book was written by a then-young woman named Katie MacKinnon—Catharine MacKinnon. And it was called Sexual Harassment in the Workplace [Sexual Harassment of Working Women]. And I was asked to read it by a publisher and give my opinion on whether it was worth publishing. It was a revelation. The first part described incidents like the one I just mentioned. And the next was how this anti-discrimination law, Title VII, which prohibits discrimination on the basis of race, national origin, religion and sex—how that could be used as a tool to stop sexual harassment. It was eye-opening, and it was the beginning of a field that didn't exist until then.

NINA TOTENBERG: So, just to close the loop here for a minute, what did you do about the professor? Did you just stay clear of him? What did you do?

JUSTICE RUTH BADER GINSBURG: I went to his office, and I said, "How dare you! How dare you do this!" And that was the end of—the end of that.

NINA TOTENBERG: I assume you did quite well on that exam.

JUSTICE RUTH BADER GINSBURG: Well, I deliberately made two mistakes.

AMY GOODMAN: Supreme Court Justice Ruth Bader Ginsburg, speaking with NPR's Nina Totenberg, a woman who has interviewed her for decades. They've known each other for 40 years. And she is one of the people interviewed in the new documentary about Ruth Bader Ginsburg, that will go throughout the week, called RBG. Our guests, again, are the film's directors and producers, Julie Cohen and Betsy West.

Betsy West, the significance of what Justice Ginsburg said, saying that Catharine MacKinnon was so seminal?

BETSY WEST: Well, I had never heard her talk about this, but it's absolutely true that there really was no word for sexual harassment, when Ruth Bader Ginsburg was being discriminated against as a young woman, and then, later, all of the women who flooded into the workplace in the '70s just sort of felt like, "Hey, this is the price of entry, something we've got to put up with in order to have these fantastic jobs." And it was Catharine MacKinnon, who was really just a young—just out of law school. She may still have been in law school, when she started working on this concept and wrote this paper, that was absolutely seminal and, in fact, was quoted by the Supreme Court in the mid-'80s, parts of her—some of the exact language that she used. And as Ruth Bader Ginsburg said, it was a revelation: "Hey, this is wrong, and it's actually unconstitutional." That's something that I think a lot of people don't understand.

AMY GOODMAN: And, you know, we can't talk about your film, RBG, without talking about her family, her relationships, and particularly her husband, who was also a well-known lawyer. Julie Cohen, if you can talk about this love story, that lasted for over half a century?

JULIE COHEN: Yeah, I mean, the love and marriage between Ruth and Marty Ginsburg is sort of like—it's not just romantic, but it's—I think it's really an inspirational part of a feminist story. Ruth Bader Ginsburg would say—often the way like a super-successful man talks about his wife, she'll say she wouldn't have gotten where she got, without him pushing. And it's absolutely true. They met at Cornell, where they were both students. They fell madly in love. Marty Ginsburg—Ruth Bader Ginsburg said he was the first guy who even seemed to notice that she had a brain.

BETSY WEST: That's because she was so beautiful, by the way.

JULIE COHEN: Because she was so beautiful, by the way, yes. And he basically—although he was an incredibly successful tax attorney in his own right, he really devoted a lot of his life both to the family—he was the primary cook, and he certainly shared child care responsibilities with her—and then he devoted a fair amount of his time and energy to pushing her career forth. She's not the type to go around self-promoting. He was not shy about promoting her.

AMY GOODMAN: And talk about that, because we just played that clip of President Clinton nominating her, but how did that happen? How did Ruth Bader Ginsburg come to Clinton's attention? He certainly—she wasn't the old one he was looking at.

BETSY WEST: Yeah, I mean, Clinton himself had—says that he wanted to nominate Governor Cuomo. Cuomo didn't want to do it. And then he started looking around, and possibly, probably—yes, definitely, because of the Marty Ginsburg campaign and others of her supporters who just felt that she was a legal giant, her name came to his attention. But as he says, Marty Ginsburg wasn't the only person lobbying for somebody. And when he met her in person, he told us that within 15 minutes of their conversation, he knew he was going to nominate her. It was kind of a meeting of the minds about the law, the best way to make law. And so, he was really taken by her. She was 60 years old when she was nominated. That was actually kind of on the old side. But he decided that she deserved it.

AMY GOODMAN: I want to turn to the 2007 Ledbetter v. Goodyear Tire & Rubber Co. pay discrimination case, the Supreme Court rejecting Lilly Ledbetter's claim of pay discrimination at a Goodyear tire plant in Alabama, where she worked as an overnight supervisor for 19 years. The decision moved Justice Ruth Bader Ginsburg to read her dissent from the bench, a relatively rare move reserved to criticize the majority opinion. This is part of Justice Ginsburg's dissent.

JUSTICE RUTH BADER GINSBURG: In our view, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination. Title VII was meant to govern real-world employment practices, and that world is what the court ignores today. Pay disparities often occur, as they did in Ledbetter's case, in small increments. Only over time is there strong cause to suspect that discrimination is at work.

AMY GOODMAN: So, the Lilly Ledbetter Fair Pay Act later passed in response to the Supreme Court. The significance, Julie?

JULIE COHEN: Well, I mean, the Lilly Ledbetter Fair Pay Act was a very important piece of legislation. And the significance in the RBG story is reminding you that, yes, of course, a key role of a Supreme Court justice and what you think of as maybe their greatest potential for accomplishing change is in a majority opinion they write, but Justice Ginsburg really made a huge difference in our laws by the dissent that she wrote in Lilly Ledbetter, not only where she explained the unfairness of the statute of limitations that had been placed on how long a woman could wait to make a claim about being paid unequally, but her dissent, she just came right out and said, like, "The ball is now in Congress's court. Like, you know what? Maybe we're a little stuck here on the judicial side. Congress, take some action here." And Congress took her up on it, and the law was passed and signed into law—actually, the first piece of legislation that President Obama signed, when he was inaugurated in January 2009.

AMY GOODMAN: At Sunday's interview that NPR's Nina Totenberg did with Justice Ginsburg, she pointed out that Justice Ginsburg had hired clerks through the 2020 term, and asked her about how long she'll stay on the court.

JUSTICE RUTH BADER GINSBURG: My current answer, the answer that will continue to be my answer: As long as I can do the job full steam, I will be here.

AMY GOODMAN: So, that's Justice Ruth Bader Ginsburg. Betsy West, she has chosen her clerks through the 2020 term.

BETSY WEST: Think she's sending a signal? Yes, she seems very determined to continue doing the job that she loves. I mean, one of the most—

AMY GOODMAN: A survivor of pancreatic cancer—

BETSY WEST: Cancer.

AMY GOODMAN: —and colorectal cancer.

BETSY WEST: Colorectal cancer. One of the most amazing scenes for us was filming her in her gym with her trainer, where she works out twice a week. She does a grueling one-hour workout, without fail. She is—well, and the workout involves, you know, planks, push-ups, medicine ball, the whole routine.

AMY GOODMAN: It's the new Jane Fonda workout video I'm expecting to see.

BETSY WEST: Yeah, I mean, 85 is the new 45. Who knows? I mean, she is determined to keep herself in shape.

AMY GOODMAN: We have 10 seconds, Julie. What most surprised you in meeting Justice Ginsburg and doing this documentary?

JULIE COHEN: You know, there are a lot of legends that have arisen about Justice Ginsburg over the past couple years, as she's become the Notorious RBG, including the workout, including her long work hours. I think the surprise was that most of those legends are true.

AMY GOODMAN: Well, I want to thank Julie Cohen and Betsy West, directors and producers of the documentary RBG, which just had its world premiere here at the Sundance Film Festival.

The original content of this program is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. Please attribute legal copies of this work to democracynow.org. Some of the work(s) that this program incorporates, however, may be separately licensed. For further information or additional permissions, contact us.