Le·gal In·sur·rec·tion

The Blog of Legal Times (BLT) is reporting that U.S. Supreme Court Justice Ruth Bader Ginsburg stated recently that she expected Sonia Sotomayor to be confirmed, and that Sotomayor would be a welcomed and qualified addition to the Court. BLT noted that such commentary by a seated Justice about a pending nomination was "unusual, but not unheard of," citing one prior example (regarding the nomination of Robert Bork in 1987).

It is unseemly, to me, for a current Justice to inject herself into the political confirmation process, even if it is not unprecedented.

More interestingly, BLT notes that as to the controversial pending Supreme Court decision in Ricci v. DeStefano (an appeal from Sotomayor's decision), Ginsburg stated "one can safely predict, [Ricci] will be among the last to come out before the term ends."

It may be that Ricci will be one of the last decisions issued for entirely legitimate reasons, and Ginsburg merely was stating a fact which shows no motive. But Ginsburg's endorsement of Sotomayor, combined with Ginsburg's statements as to the timing of Ricci, creates the unfortunate appearance of one or more of the current Justices playing politics with the timing of the Ricci decision.

I have suspected that one of the reasons the Obama administration wants to rush the Sotomayor confirmation hearings through in mid-July is to avoid the serious political damage to Sotomayor's confirmation of a reversal on Ricci. Ginsburg's statements seem to support this wisdom, from the Obama administration's point of view, since the Ricci decision appears to be headed for release after mid-July. [added] Normally the Court would render its decisions by the end of June, which makes it curious that Ginsburg would emphasize that the Ricci decision would be one of the last decisions released. We'll see in the next couple of weeks whether the Ricci decision takes place on the normal timetable

Ginsburg's statements should give everyone pause as to the timing of the confirmation hearings. The possibility of a reversal on Ricci being held back (whether intentionally or not) until after the confirmation hearings argues for a September confirmation schedule.

UPDATE: While the 2008 Term ends September 5, 2009, it is the practice for the Court to issue its decisions prior to July 4 of the Term. If that practice holds true, then the decision will be rendered in about two weeks. Which makes Gingburg's comment about Ricci being one of the last cases to be released odd, but not necessarily inconsistent with a June decision. We'll see.

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