Opinions & observations: Goodbye, but not farewell, Justice Ruth Bader Ginsburg

September 29, 2020 Former Brooklyn Law School Dean Nick Allard

Late Supreme Court Justice Ruth Bader Ginsburg. Photo: AP

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A note from columnist Charles F. Otey, Esq., in whose column this piece originally appeared: With the loss of the incredible Justice Ruth Bader Ginsburg this past week, we were all deluged by floods of words on her life and achievements, many by writers who had never met this courageous lawyer. So, we called on someone who had known Justice Ginsburg and — at the same time — was thoroughly schooled in the legal arts and shared her undying passion for the rule of law. Within a few days of asking former Brooklyn Law School Dean Nicholas Allard to help us out, we received this moving, personal “elegy.” Since leaving as dean and president of BLS, where he was credited by this alum for “bringing Brooklyn Law School into the 21st Century,” barrister Allard has been with Dentons, the world’s largest law firm. Prior to becoming dean at BLS, he was a lead partner with Patton Boggs — one of the world’s most influential law firms.

Our debt to you is without bounds for all you accomplished for so long in the face of daunting obstacles. Although you have left us in a very final way, your legacy will endure and grow. Your life and life’s work inspires others to continue, as you did, history’s unending fight for equal rights and justice for all people.

Now is not the time for us to mope or give up. At this painful and troubling moment, somehow we must learn to carry on without you in a Ruth-less world. You have taught us how and we will need every ounce of your courage, determination and faith that the world can be better.

The invitation to write for Walt Whitman’s newspaper about Justice Ginsburg is humbling. There are many people who have known her extremely well over the course of her long and rich life. Many of her family, law clerks, colleagues and friends have expressed themselves eloquently to celebrate her extraordinary life and help us cope with her loss. There also are countless moving tributes from legions of people whose lives she touched who did not have to know her to love her.

Former Brooklyn Law School Dean Nick Allard. Photo: Brooklyn Eagle File

No words that could be found for this space would be adequate. Perhaps to make a start it serves to share a few examples of what we were told spontaneously by others about what the loss of Justice Ginsburg meant to them, with the expectation that readers will have their own connections to reflect upon.

In our large intertwined Catholic-Jewish extended family, the not entirely unexpected, but nonetheless sad, stunning news came after our annual Rosh Hashanah dinner. We were in the midst of texting and phoning best wishes for the New Year to family and friends when we learned that Justice Ginsburg had died.

Our law clerk son Tyler, who is the family go-to authority on such things, mentioned the proverb that a person who dies on Rosh Hashanah is righteous. Undeniably, Justice Ginsburg was righteous.

Minutes later, our dear friend in South Florida, distinguished Brooklyn Law School alumnus Larry Feldman, captured the significance of her loss and the upcoming election. Larry texted: “This is not about us. This is about our kids and grandkids.” Amen.

Then our sister-in-law Genny Mulderig Allard, a former champion swimmer and New Jersey prosecutor (now high school teacher) told us: “I admired especially that Justice Ginsburg chose words that would crystallize a complex argument and marshal transcendent historical evidence in an understandable and compelling way.”

Off the top of her head, Genny impressively recited the example of Justice Ginsburg’s paraphrased use of Sarah Grimke’s famous 1847 quote in the closing of her first of six arguments before the court in 1973, Frontiero v. Richardson: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

Today, these words from the 19th century racial and gender rights activist come full circle. Revived in the 20th century by Justice Ginsburg, they are remembered in the 21st century by a teacher whose tribute to the iconic modern gender rights warrior unavoidably makes us think about securing justice for the murder of George Floyd.

On calls to our grown twins Hilary and Nathaniel, who now have handfuls of their own small children, we reminisced about their first encounter with Justice Ginsburg. The twins have no memory of it, but the Justice would not let me forget. I was invited to an engagement party that the then-D.C. Circuit Judge Ginsburg hosted for one of her law clerks and his fiancée. I was working down the hall in the federal courthouse clerking for the late Judge Patricia Wald, whose legacy I also have written about here.

Allard twins redecorate Ginsburg’s Watergate home

I showed up for the elegant party without spousal backup, carrying under each arm 18-month-old Hilly and Nate. They were wiggly rascals. When I foolishly put them down in their red-footed onesies, they looked every bit and acted worse than Dr. Seuss’ Thing One and Thing Two characters. In under two minutes, what I recall had been the immaculate white-on-white decorative motif of the Ginsburg Watergate residence was splattered with salsa, guacamole, the red contents of an overturned punchbowl and the formerly potted soil beneath houseplants.

We made a quick exit, but the damage was done. For the next 39 years, invariably, whenever the Justice would spot me, she would point a finger my way and wryly ask, “Where are those twins?”

I am not sure I was ever forgiven, even when I bragged about Nate graduating from Columbia Law School and becoming a fine lawyer, and how proud we are that Hilary has become a trendsetting top executive in real estate, a field not known for being easy for women.

In addition to matchmaking, Justice Ginsburg loved the performing arts. We would frequently see her at productions of Washington’s magical Shakespeare Theatre Company.

Young Hilary Allard makes her first appearance before the Supreme
Court. Photo courtesy of Nick Allard

In 2015, the court decided that same-sex marriage was a constitutionally protected right in Obergefell v. Hodges. A few weeks before the court’s landmark opinion was released, we attended the wedding of Shakespeare Theatre founder and Julliard School educator Michael Kahn to architect Charles Mitchem. Justice Ginsburg officiated, waiting bemusedly in her black robe and white color as the betrothed couple joyfully came down the aisle to tune of the Chordettes’ “Mr. Sandman.”

Soon it was she who brought down the house and made national news when she slyly pronounced the two men married “by the powers vested in me by the District of Columbia (where it was already legal) and (with her extra emphasis) the Constitution of the United States.”

The truth is that her soft-spoken, carefully considered and precisely delivered words often hit home like thunderclaps.

“History does not repeat itself; it rhymes.” That is a pithy observation that often is attributed to Mark Twain. It wonderfully describes how the crescendo of Justice Ginsburg’s operatic life builds upon the pioneers of the past in fresh and new ways. Now, her death similarly leaves it to others to continue harmoniously extending her work.

In truth, the only thing that is forever is the struggle inherent in the human condition between right and wrong, better or worse. That is because anything done, whether for good or bad, can be undone, so the work can never end if dreams are not to die.

The difficult, slow progress of women’s rights

During this 100th anniversary year of the 19th Amendment, we acknowledge the difficult, slow progress of women’s rights in the United States. It is fitting to honor Justice Ginsburg by celebrating all the people who preceded her, especially the women who were not even able to be lawyers at the time, but who made such an indelible mark on improving equal rights under our Constitution, statutes and cases.

Consider Harriet Tubman bravely and selflessly fighting slavery. Admire the abolitionists-turned-leaders of the women’s suffrage movement such as Grimke, Susan B. Anthony and Elizabeth Cady Stanton. They worked long and tirelessly propelling progress toward equality which was not fully realized during their lifetimes and to this day remains unfinished business.

While inspiration may come from all walks of life and points of the compass, there is no shortage of lawyer role models. Abraham Lincoln, a legendary American lawyer in both private practice and government service, learned about law by reading and through practical experience. He never went to law school or took a sit-down bar exam, and he lost his only argument before the Supreme Court.

Mahatma Gandhi and Nelson Mandela were lawyers who became iconic statesmen for their people and beacons for all people everywhere.

Closer to home in the United States, we can think about lawyers to borrow Justice Sonia Sotomayor’s phrase “in the nation’s service and in the service of all people” such as Alexander Hamilton, Presidents John Adams, Thomas Jefferson, Gerald Ford and, more recently, Barack Obama.

Others in the vanguard of movements include Supreme Court Justices William Brandeis, Thurgood Marshall, Sandra Day O’Connor, Sotomayor, Elena Kagan and Antonin Scalia, whose genuine friendship with Justice Ginsburg despite ideological differences is a model of constructive collegiality in public service.

Do not quibble with the list. Instead, name your own heroes whose virtues are worth embracing and emulating. For example, Judge Wald and ceiling-smashing journalist Cokie Roberts deservedly must be in heaven’s Hall of Fame.

The people we each know who taught us how to live and work, whose example, like Justice Ginsburg’s, can sustain us against all odds, need not be famous. We can start thinking about the heroes in our own families and communities.

I wonder in awe about the perseverance of my great grandmother, who took a job as a housekeeper more than 100 years ago in a Bay Ridge, Brooklyn orphanage. She did that after my great grandfather died in the influenza epidemic so that she and her son (my grandfather) and three other surviving sons could live with her under one roof. I also think of how her son met my maternal grandmother as her patient when she was a nurse in the Brooklyn Navy Yard Hospital.

Spot-on gift for future lawyer: a brass spittoon

Our beloved irrepressible grandmother never let her diabetes slow her down. She played baseball with us in her nurse’s uniform after her shift ended. When I was still very young, hoping I would become a lawyer, she bought me a brass spittoon in the estate sale of a local lawyer who had passed away.

Coming from a small town in North Carolina, she thought the spittoon would be a needed piece of office furniture for practice. She was right. I reminds me of her when I see it every day in my office.

But most of all, following Larry Feldman’s cue, we can think ahead about our children and their children. Maybe my 4-year-old granddaughter Eleanor can be one of those who picks up where Justice Ginsburg left off.

Recently, her mother Hilary asked her if it bothered her that two older children were making fun of her because she prefers swimming topless in her older brother’s hand-me-down stars-and-stripes boy’s bathing trunks. Ellie shrugged and said, “What’s wrong with them? Don’t they know it’s a free country?”

As sad as it is to lose Justice Ginsburg, it helps to think she would approve of that impressive little girl who we love to bits.

Why Justice Ginsburg served to the last

It seems odd to me that some are saying that it is unfortunate that Justice Ginsburg had not retired when President Obama could have nominated her successor.

Put to one side that if she had stepped down there would have been no guarantee that her successor would not have fallen victim to the same roadblock that thwarted Chief Judge Merrick Garland. And also ignore the possible and understandable desire for Justice Ginsburg to wait to be replaced by the first woman President, which then seemed likely.

After all the expected new President would be Hillary Clinton, who, by all accounts, played the pivotal role in securing Justice Ginsburg’s nomination by President Bill Clinton. No, even beyond all those considerations, had Justice Ginsburg stepped down prematurely, we would have lost at least five or six years of her prodigious priceless work as a jurist. So, we have every reason to celebrate the extra time she spent on the job.

At least in the Allard clan, we frequently note that there is only one difference — only one — between the Catholics and Jews. The Catholics leave without saying goodbye. The Jews say goodbye but never leave. Ruth Bader Ginsburg, you have said goodbye to us in a profound way. Yet you will never leave us. Your memory, and your virtues that we see in others and aspire to ourselves, motivate us to assure that your fervent last wish is granted: to be replaced after the November election, when a successor can be sworn in by a new President.