Monday, January 09, 2006

The so-called "Ginsburg standard"

The right-wing talking point about the "Ginsburg standard" is already making its way through the Alito hearings. The claim is that in approving Clinton's 1993 nomination of Ruth Bader Ginsberg, conservatives put aside their ideological difference with a known hard-left nominee; the claim is, of course, another case of revisionist history.

The best available synopsis of the so-called "Ginsburg standard" (also known as the "Ginsburg precedent") is "The Ginsburg Fallacy" by Ruth Marcus (Washington Post, Tuesday, November 15, 2005; Page A21), where you will find how, during the Roberts hearings, Republicans on the Judiciary selectively read Ginsburg's record in order to make her, as Marcus puts it, "an ACLU-loving, bra-burning feminazi."

According to Senator John Cornyn (R-TX), Ginsburg "was not exactly a person that held mainstream or consensus positions. She spent most of her career representing one client, the American Civil Liberties Union, on one side of issues. She'd supported taxpayer funding for abortion, constitutional right to prostitution and polygamy and she opposed Mothers' and Fathers' Days as discriminatory occasions" (Senate Judiciary Committee Hearings, September 22, 2005). On Fox News, Sean Hannity asked Senator Lindsey Graham (R-SC), "Let me ask you this, Senator Graham, because this is very, very important. Ruth Bader Ginsburg, way out of the mainstream, you know. Why don't you lay out her record?" Graham responded, "OK. In her writing, she said the age of consent for sexual activity for women should be 12. In her writings she said we need co-ed prisons because separate prisons are discriminatory against women. She said in her writings that we need to do away with mother's day and father's day because it stereotypes women. She said in her writings that federal funding of abortion is a constitutional right, and that prostitution should be a constitutional right" (Hannity and Colmes, September 14, 2005).

As Marcus points out, these positions are mined from a report (PDF, 7M) of the Columbia Law School Equal Rights Advocacy Project Ginsberg co-authored in 1974. It was a report that sought to identify gender-based terminology in Federal statutes and recommend gender-free language replacements and was probably not, according to UCLA Law Professor Eugene Volokh, recommending lowering the age of consent to 12.

More important than these few instances the right wing now marshalls in support of the supposed "extremity" of Ginsburg's judicial philosophy, however, is the clear evidence then (1993, during Ginsburg's hearings) that Ginsburg stood well within the mainstream of judicial philosophy. As The Daily Howler has noted, Joan Biskupic wrote the following in a June 15, 1993 Washington Post article:

If Judge Ruth Bader Ginsburg becomes a Supreme Court justice, the court will belong to the center. Ginsburg, 60, has straddled the liberal-conservative divide of the D.C. Court of Appeals for the last 13 years. And while she would come to the court with more "liberal" leanings than retiring Justice Byron R. White, her record is a far cry from the traditional activism of retired Justice William J. Brennan Jr. and the late Justice Thurgood Marshall. Ginsburg has a pragmatic, non-ideological approach that likely would put her most in league with Justices David H. Souter and Sandra Day O'Connor. [. . . ] In the judicial context, a "liberal" approach connotes a willingness to more broadly read constitutional guarantees beyond the clear mandates of elected lawmakers. A judicial "conservative," conversely, believes the courts should not involve themselves in social problems that are traditionally the province of legislators. Conservatives also tend to take the side of government's need to protect the public at large in the face of complaints from individuals. Neither tag captures Ginsburg. On the D.C. Court of Appeals, to which she was appointed by President Jimmy Carter in 1980, she has become a swing vote. A 1988 computer study by Legal Times newspaper found that she had sided more with Republican-appointed colleagues than Democratic counterparts. In cases that were not unanimous, she voted most often with then-Judge Kenneth W. Starr, who became George Bush's solicitor general, and Laurence H. Silberman, a Reagan appointee still on the court. ("Judge Ruth Ginsburg Named to High Court: Nominee's Philosophy Seen Strengthening the Center," The Washington Post, June 15, 1993, Page A1)

The Legal Times study of the D.C. Circuit of the U.S. Court of Appeals cited by Biskupic reads as follows:

With Judge Robert Bork about to retire from the U.S. Court of Appeals for the D.C. Circuit, it is clear that President Reagan's campaign to reshape the federal judiciary has created a powerful bloc of judges on the circuit who in 1987 were far more likely than their Democratic counterparts to stick together. A new Legal Times statistical study has found that four of the six Reagan-appointed court members -- Judges Bork, James Buckley, Stephen Williams, and Douglas Ginsburg -- emerged in 1987 as a predictable bloc: They were in agreement on almost every case in which they sat together, either on three-judge panels or sitting en banc. A third group of court members -- Judges Kenneth Starr and Laurence Silberman, also Reagan appointees, and Ruth Bader Ginsburg, selected by Jimmy Carter -- voted regularly with the Republican bloc, but not often enough to be considered part of it. [. . .] At the same time, the study found that the remaining four Democratic judges were more likely to vote with each other than with Republicans, but were not as cohesive. For example, none of the Democratic judges registered 100 percent agreement with any other Democrats on the court. But three Republicans -- Bork, Buckley, and Ginsburg -- were in agreement in all cases in which they sat together. [. . .] The study, based on published opinions in 381 cases decided last year by the 11 active judges on the court, confirms what previously has been only an impressionistic picture of the alliances on the circuit. [. . .] the fifth Democratic appointee -- Ruth Bader Ginsburg -- earned her highest agreement levels not with fellow Democrats, but with Republicans. [. . .] As a swing vote, Ruth Ginsburg joins two Republican-appointed judges, Starr and Silberman, with whom she has her highest level of agreement in non-unanimous cases. (Kenneth Karpay, "Bork or No Bork, GOP Bloc a Force on D.C. Circuit," Legal Times, January 18, 1988, Pg. 10)

It's also well-known that Clinton nominated Ginsburg at the suggestion of Senator Orrin Hatch (R-UT). In his autobiography Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), Hatch recounts the following discussion with Clinton:

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg [sic]. I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

While LEXIS-NEXIS search results of major papers for identifications of Ginsburg with the term "liberal" both precede and outnumber those that identify her with the terms "moderate" or centrist" (582 to 218), many of those former characterizations are qualified, as a few examples from the June 1993 announcement of her nomination shows.

As a judge, Ginsburg's reputation is as a moderate, but she was considered a liberal during her years as a practicing attorney, which included seven years as general counsel to the American Civil Liberties Union. (John King, "Clinton Chooses Woman for Court," Chicago Sun-Times, June 14, 1993, Page 1.)

Ginsburg argued a series of landmark sex discrimination cases before the Supreme Court, winning five out of six as she pressed the justices to use the equal protection clause to strike down laws that discriminated against women. After joining the D.C. Circuit, however, Ginsburg disappointed some supporters who had expected her to adopt a more liberal stance. Instead, as presidents Ronald Reagan and George Bush added a majority to the court, Ginsburg found herself in the center of the court. (Ruth Marcus, "Judge Ruth Ginsburg Named to High Court," The Washington Post, June 15, 1993, Page A1.)

In 1980, when President Carter appointed her to the U.S. Court of Appeals for the District of Columbia, Ginsburg was considered the least liberal of Carter's four appointments during his term. ("Woman nominated for court," St. Petersburg Times June 15, 1993, Page 1A)

Lawyers who practice before Ginsburg in the D.C. circuit said it was hard to peg her as a conservative or liberal and find her likely to cast the "swing vote" in a variety of cases. (Mary Deibel, "Federal Judge Picked for High Court," Plain Dealer, June 15, 1993, Page 1A)

A prominent liberal two decades ago, Ginsburg has become a relatively low-key moderate since 1980, handling the steady diet of regulatory and adminis trative law cases that arise in the District of Columbia appeals court. The combination makes her a safe bet for confirmation, say legal experts, a key qualification given President Clinton's recent woes in finding politically qualified candidates.
(Harriet Chiang, "Nominee Is Longtime Crusader Against Sex Discrimination," The San Francisco Chronicle, June 15, 1993, Page A1.)

Despite her long record as a champion of women's rights, Judge Ginsburg has occasionally disappointed some of her former allies in the liberal advocacy groups. In her 13 years on the appeals court, she has often gone out of her way to mediate between the court's warring liberal and conservative factions. (Neil A. Lewis, "Rejected as a Clerk, Chosen as a Justice: Ruth Joan Bader Ginsburg," The New York Times, June 15, 1993, Section A Page 1)

President Carter named Ginsburg to the federal bench in 1980. While her rulings and her temperament have been consistently described as moderate, her earlier career consisted of a highly successful mix of academics and courtroom appearances, punctuated by an advocacy for traditionally liberal feminist causes. (Adam Pertman, "A disciplined, private women's advocate," The Boston Globe, June 15, 1993, Page 1)

"Ruth Bader Ginsburg has the judicial experience that will work well and wear well with the centrists," said David O'Brien, a professor ofgovernment at the University of Virginia and the author of "Storm Center: The Supreme Court and American Politics." [. . .] Ginsburg, once a lawyer for the American Civil Liberties Union, is believed to have grown more moderate since becoming a judge in 1980. "Many might say she's an ACLU knee-jerk liberal down the line," said law professor Vincent Blasi of Columbia University, where Ginsburg was once a professor. "I don't think that's right. She's a liberal, but somewhat more independent minded and even slightly unpredictable." (Dick Lehr, "Nominee works the center well," The Boston Globe, June 15, 1993, Pg. 11)

The broadly sympathetic reception of Judge Ruth Bader Ginsburg's nomination to succeed retiring Supreme Court Justice Byron White indicates that President Clinton is, at least in this instance, doing what he promised, acting like a "new" Democrat positioned near the center. Judge Ginsburg's record reveals a liberal activist as an individual and, as a federal appeals court judge, a taste for a deliberative, centrist consensus. ("The Ginsburg Nomination, Times-Picayune [New Orleans], June 16, 1993, Pg. B6)


This information was emailed, with appropriate introductory and concluding materials, to Senators Graham, Brownback, Hatch, Kyl, Schumer, Biden, Kennedy, Leahy, Feinstein, Feingold and Durbin.

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