One of the impressive things about the late Justice Ruth Bader Ginsburg was her lack of Wokeness by 2020 standards. For example, she refused to saddle herself with an affirmative action law clerk. As a Supreme Court justice from 1993–2020, she had 119 clerks. In 2018, the Washington Post reported that only one had been black. Before her elevation to the Supreme Court, she had no black law clerks during her 13 years as a judge on the prestigious D.C. Circuit of the US Court of Appeals.
Opinion by Paul Butler
Oct. 15, 2018 at 12:53 p.m. PDT
Paul Butler is the Albert Brick professor in law at Georgetown University Law Center.
… Ginsburg, on the other hand, has hired only one African American law clerk in her 25 years on the Supreme Court. This is an improvement from her 13-year tenure on the U.S. Court of Appeals for the District of Columbia Circuit, when Ginsburg never had any black clerks. When this issue was raised during her Supreme Court confirmation hearings in 1993, Ginsburg said: “If you confirm me for this job, my attractiveness to black candidates is going to improve.” This remains a promise unfulfilled.
Apparently, Justice Ginsburg didn’t find many young black law graduates up to her high standards. She was apparently arguing in 1993 that her being on the second highest court in the land meant that she was losing all the satisfactory black law clerks to the highest court.
My vague impression is that Justice Ginsburg’s finding that there were very, very few black law school grads competent enough to clerk for her seldom interfered with her ordering the rest of us to endure affirmative action. But the kind of old-fashioned liberal hypocrisy had a whiff of sanity about it, which is sadly missing in 2020.
Here’s another example of RBG’s lack of Wokeness: from her 2002 speech to the Jewish Council for Public Affairs on Jewish legal prodigies, such as Judah P. Benjamin, who served as Attorney General, Secretary of War, and Secretary of State in the Confederacy, before fleeing to England to avoid arrest for treason:
… [Judah P.] Benjamin’s political ventures in the Senate and in the Confederacy were bracketed by two discrete but equally remarkable legal careers, the first in New Orleans, the second in Britain.
… Benjamin came to New Orleans in 1832 and was called to the bar that same year. Although he struggled initially, his fame and fortune quickly grew large after the publication, in 1834 … Benjamin’s book treated comprehensively for the first time Louisiana’s uniquely cosmopolitan and complex legal system, derived from Roman, Spanish, French, and English sources. Benjamin’s flourishing practice and the public attention he garnered helped to propel his election by the Louisiana legislature to the United States Senate. …
Benjamin’s fortune plummeted with the defeat of the Confederacy. He arrived in England with little money and most of his property lost or confiscated. His wife and daughter settled in Paris, where they anticipated support from Benjamin in the comfortable style to which they were accustomed. He nevertheless turned down a promising business opportunity in the French capital, preferring to devote himself again to the practice of law, this time as a British barrister. He opted for a second career at the bar notwithstanding the requirement that he start over by enrolling as a student at an Inn of Court and completing a mandatory three-year apprenticeship before qualifying as a barrister. This, Benjamin’s contemporaries reported, he did cheerfully, although he was doubtless relieved when the Inn of Court to which he belonged, Lincoln’s Inn, determined to waive some of its requirements and admit him early.
Benjamin became a British barrister at age 55. His situation at that mature stage of life closely paralleled conditions of his youth. He was a newly-minted lawyer, with a struggling practice, but, he wrote to a friend, “as much interested in my profession as when I first commenced as a boy.” Repeating his Louisiana progress, Benjamin made his reputation among his new peers by publication. Drawing on the knowledge of civilian systems gained during his practice in Louisiana, Benjamin produced a volume in England that came to be known as Benjamin on Sales. The book was a near-instant classic. Its author was much praised, and Benjamin passed the remainder of his days as a top earning, highly esteemed, mainly appellate advocate. His voice was often heard in appeals to the House of Lords and the Privy Council.
Benjamin’s biographer tells us that, “[h]owever desperate his case, Benjamin habitually addressed the court as if it were impossible for him to lose.” This indomitable cast of mind characterized both Benjamin’s courtroom advocacy and his response to fortune’s vicissitudes. He rose to the top of the legal profession twice in one lifetime, on two continents, beginning his first ascent as a raw youth and his second as a fugitive minister of a vanquished power. The London Times, in an obituary, described Judah Benjamin as a man with “that elastic resistance to evil fortune which preserved [his] ancestors through a succession of exiles and plunderings.”
