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Ninth Circuit Notes with Sorrow the Passing of Justice Ginsburg

September 29, 2020 / Ninth Circuit Public Information Office

 

By Bill Cracraft, Communications Specialist, Ninth Circuit


Supreme Court Justice Ruth Bader Ginsburg joined by Circuit Judge Sidney R. Thomas, left, and Circuit Judge Richard R. Clifton in a reenactment of Bradwell v. Illinois at the 2011 Ninth Circuit Judicial Conference held in Carlsbad, California.

Supreme Court Justice Ruth Bader Ginsburg passed away September 17, drawing an outpouring of sorrow at the loss of a great jurist who fought for equality throughout her career. Justice Ginsburg had ties to the Ninth Circuit through long standing friendships with judges and in 2011 she joined the Ninth Circuit Judicial Conference for a reenactment of a critical women’s rights Supreme Court argument.

“The Ninth Circuit joins the nation in mourning the loss of Justice Ginsburg. She was very close to a number of judges on our Court, and her legal legacy will endure for generations,” said Chief Judge Sidney R. Thomas.

Three judges from the Ninth Circuit Court of Appeals, Judge M. Margaret McKeown, Judge Paul J. Watford and Judge John B. Owens all knew Justice Ginsburg personally and professionally. Judges Watford and Owens both clerked for Justice Ginsburg in the mid-1990s, and Judge McKeown became acquainted with Justice Ginsburg first in law school and, later, professionally, and formed a firm friendship with her that lasted until Justice Ginsburg’s passing.

Judge McKeown met Justice Ginsburg “virtually” in 1975, as a student at Georgetown University while taking the first sex discrimination class at the university. “The problem was,” Judge McKeown said, “there was no textbook and very few materials to go by other than a few cases that Justice Ginsburg had litigated. The professor recommended I write to Professor Ruth Ginsburg, who was then at Columbia Law School, and see if she had any ideas or information. So, I wrote to her. She was really gracious and sent me back a sheaf of papers that were helpful so I could actually write my paper. That really was a small act of kindness that, over the years, I reflected on again and again, and I marvel at the serendipity that led to our friendship.”

“Fast forward to when I was a lawyer, she came to several of the Ninth Circuit judicial conferences and then, over time, in some inexplicable way, after I became a judge, we had a friendship that really blossomed. I feel really privileged to have known her all these years as a friend and, of course, as someone I admired so much. One thing I remember particularly, she never really liked the words ‘women’s equality’ or ‘women’s rights', instead, she liked the phrase ‘equality,’ because women should have no more equality than men or vice versa, and so she was quite adamant about that.

“In February of this year, I had the privilege of interviewing her on the Nineteenth Amendment. It was a program put on at Georgetown, carried by C-SPAN and other channels, and it was great to look back on her career and talk with her about how she viewed her role, how she viewed the cases she had done,” recalled Judge McKeown.

Judge Watford clerked for Justice Ginsburg in 1995-96. “The number one lesson that I took away from my experiences in her chambers that I try to keep in mind in my role as a judge now, is that it is possible to have very strong disagreements with people and yet be best of friends with them. I think that is an incredibly important lesson in everything we do in life but especially as a judge.

“What she taught me is that you want to be confronted with people who have different opinions, who are going to challenge your thinking on cases. That is something you should welcome as a judge because it is going to force you to sharpen your own thinking and very often to improve your work product. I remember the term I clerked was the term the court decided the VMI case (United States v. Virginia), which was a 7-1 decision, with one justice, Scalia, writing the lone dissent. I remember all of us clerks were anxiously waiting to see what that first draft of the Scalia dissent would look like. We figured that, because they were such good friends, she would not receive the typical Scalia treatment.” The expectation was, since Justices Scalia and Ginsburg were personal friends, that Justice Scalia would tone down his dissent. “Nope, not at all,” said Judge Watford. It was the typical hard-hitting Justice Scalia dissent one would expect.

“We were really curious to see her reaction,” said Judge Watford, thinking Justice Ginsburg would be put off by Justice Scalia’s forthright dissent. “But, no, she took exactly the opposite tack. She said she did not take it in the least bit personally. In fact, I would say she welcomed his critique rather than having the decision be unanimous. She said publicly later that Scalia’s dissent made her go back and revise, and make stronger, her own majority opinion. I think that is why they so enjoyed each other’s friendship and being colleagues on the court together; they felt that each of them made the other better. I’ve always taken that lesson to heart and tried to think about it as I’ve tried to do my job.”

Judge Owens clerked for Justice Ginsburg in 1997-98. “I’m sure I speak for all of Justice Ginsburg’s law clerks when I say that there will never be another RBG,” said Owens. “She was an unmatched mix of smarts, heart, and most of all, unbelievable toughness. I am devastated that we will no longer hear her wisdom from the bench, but proud that her commitment to justice will live on for generations.”

Judge Owens learned an important lesson from Justice Ginsburg long after his clerkship had ended and just as he was settling on the bench. “My very first published opinion when I became a judge was a modified categorical approach case. I’ve made it public that I dislike this approach and wish the Supreme Court would change it, so in my very first opinion, I thought about writing a concurrence to my own opinion saying why this caselaw was crazy.” Judge Owens, new to the bench, decided, “Well, I’m just not going to do that in my first case, so I put the whole concurrence in my back pocket.” Enter, Justice Ginsburg.

“I mentioned the situation to her after the case was done,” Judge Owens continued. “I said, ‘you know Justice, I really don’t like this approach, but for my first  case out of the chute I really didn’t think it was right to write a separate concurrence to my first majority opinion. And she replied, in pretty stern words, actually, ‘John, you always want to be respectful, but at the same time, you have the commission from the President and the vote from the Senate, which means you have an obligation: when you see something wrong in the law, and there is a way you can address it, you need to do that.’ I really took that to heart, continued Judge Owens, “so since that conversation, you have seen a lot of my opinions where I say what I think about the modified categorical approach,” Judge Owens finished.

In 2011, Justice Ginsburg came to the Ninth Circuit Judicial Conference in Carlsbad, California, and joined in a reenactment of the oral arguments of the 1872 case heard by the Supreme Court, Bradwell v. Illinois. Myra Bradwell was a lawyer who had been denied the right to practice law in Illinois because law was outside the woman’s natural realm, according to the Illinois’ argument. Bradwell had argued her own case and, in this reenactment, Justice Ginsburg heard the arguments along with the Ninth Circuit’s Chief Judge Thomas and Circuit Judge Richard R. Clifton, now a senior judge for the Ninth Circuit. Justice Ginsburg had argued the same case in front of a moot court led by then-Attorney General Janet Reno in 1998, and the judgment was reversed in both the 1998 moot court and the 2011 reenactment.

“It was a great honor for me to join Justice Ginsburg on the panel,” said Chief Judge Thomas. “It was wonderful to work with her, and her participation made it one of our more memorable conferences.”
In addition, the just-released documentary, “RBG,” a riveting documentary exploring Justice Ginsburg’s exceptional life and career, was shown at the 2018 Ninth Circuit Judicial Conference in Anaheim, California.

There have been a number of articles about Justice Ginsburg since her passing, but Bloomberg Law interviewed seven of her law clerks, including Judge Owens, in late August. Here is a link to that video

In the end, Justice Ginsburg leaves a legacy that will carry her name forward into the history of the United States. “She didn’t set out to become Notorious RBG and she didn’t set out to change the world,” said Judge McKeown, “but she did set out to change the landscape of discrimination and she set out to do that one case at a time. Two words define her legacy—gender equality.”

“What I think about most in terms of her legacy,” said Judge Watford, “is how, perhaps more than any other single person, over the span of a couple of decades, she managed to transform society’s view of what the respective roles of men and women really are.”

“I don’t know that I have ever met anyone who loved this country more than the Justice did,” said Judge Owens. “She knew that there would be no RBG in any other place in the world than here. She cared deeply about this country and at the same time, she realized that we always have to try to improve things, try to make everyone’s plight better than it is. To me that was always the motor that drove her. She realized what an incredible opportunity this country had given her, and she wanted to do everything she could so more people could have the same opportunities that she did.”


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