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Former WA AG McKenna cherished arguing cases before Justice Ginsburg

Members of the public pay respects to Associate Justice Ruth Bader Ginsburg as her flag-draped casket rests on the Lincoln catafalque on the west front of the U.S. Supreme Court Sept. 23, 2020 in Washington, DC. Ginsburg died Sept. 18 at the age of 87 after a long battle against cancer. (Photo by Alex Wong/Getty Images)

When he was serving in the position, former Washington State Attorney General Rob McKenna argued several cases before Supreme Court Justice Ruth Bader Ginsburg. He joined Seattle’s Morning News to discuss his respect for her thoughtfulness and the time she called out an opposing counsel.

“I would say that she is the least intimidating of the justices I appeared before because she speaks very softly, she’s diminutive in stature, she was very polite with her questions. I would contrast her to her best friend in the court, Justice Scalia, who was very intimidating. I once said that when he leans over — you’re only about 10 feet away from the justices — when he leans over and bears down on you, I thought I was going to burst into flame,” McKenna joked.

“I just had the greatest respect for [Ginsburg] because she not only really mastered the laws, as they all do … but she was also a master of the record in the case, the facts,” he added.

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McKenna recalled a particular experience in which his opposing counsel didn’t quite know his stuff, and Ginsburg called him out on it.

“In my third argument, my opposing counsel was up delivering his argument, and Justice Ginsburg asked him a question about the underlying facts in the case,” McKenna recalled. “He evidently didn’t know the answer because he made one up … He just guessed, I’ll put it kindly.”

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“So she opens what’s called the appendix, which is the record in the case,” McKenna said. “She goes to the exact page, points to the sentence, and reads it out loud, contradicting what he just said. In other words, she knew what the answer was before she asked the question, and he made the mistake of guessing when he didn’t know the answer, and she just destroyed him. I just was so impressed by her amazing recall, her memory, not just of the law, but of the underlying factual record in the case.”

Of course, McKenna couldn’t help but admire her for a self-serving reason as well.

“I also have to admit that I have a soft spot for her because she voted my way all three times,” he said. “But so did Chief Justice Roberts; she wasn’t the only one. There was no smarter, more thoughtful justice on the court when she served. There are a lot of them who are smart and thoughtful, but no one surpassed her, that’s for sure.”

Listen to Seattle’s Morning News weekday mornings from 5 – 9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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