Ginsburg for the Supreme Court Day of the Woman

June 15, 1993

For the first time in history, there will be two women on the Supreme Court. In the words of Judge Ruth Bader Ginsburg, due to be that second woman, this "significant" development "contributes to the end of the days when women, at least half the talent pool of our society, appear in high places only as one-at-a-time performers."

Though President Clinton's methods in selecting his firsnominee to the high tribunal were distasteful and even demeaning to those on an ever-changing list of prospects, in the end he came out right. On a court of nine members, it should no longer be acceptable (as though it ever was) that eight of those seats should be occupied by males. Even the most understanding among them cannot be expected to bring to their deliberations the insights that only a woman can offer.

Judge Ginsburg's nomination does make the court more reflective of America's diversity; that much is sure. But in so small a panel, the full extent of this diversity can never be fully achieved nor should it be a controlling factor. It may be gratifying to some that after a hiatus of 24 years, there again will be a Jewish member of the court. It may be disappointing to others that there is still only one African American on the court and no Hispanic. But we would submit that women's claims to greater representation, whatever their race or religion, are of a different dimension.

And Judge Ginsburg is not just any woman. As Mr. Clinton stated in one of his more felicitous comparisons, "she is to the women's movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African Americans." Just as Justice Marshall litigated -- and won -- landmark civil rights cases before the court he was one day to join, so Judge Ginsburg, as general counsel in the 1970s for the American Civil Liberties Union, won landmark women's rights cases before the Supreme Court.

In one of her most controversial legal dissertations, Judge Ginsburg cited these cases as a model for progress on individual rights -- models which forced Congress and state legislatures to deal with social and economic pressures against women. She contrasted this, much to the dismay of some feminist groups, to the sweeping Roe v. Wade decision in which, she said, the Supreme Court pre-empted the field and in so doing "prolonged divisiveness and deferred stable settlement of the issue."

This independence of mind, despite her advocacy of abortion rights, should stand the nominee in good stead during what looks like an easy Senate confirmation. It contributed to her reputation as a "moderate" on the federal appeals court after years as a "liberal" attorney in women's causes.

Mr. Clinton twice described his nominee as a "consensus builder," a role ready-made for Judge Ginsburg in light of the present make-up of the court. At present, there are three Reagan-Bush era justices -- David Souter, Sandra Day O'Connor and Anthony Kennedy -- who have exerted increasing "moderate" influence on the court by frequently joining with the more liberal justices, Harry Blackmun and John Paul Stevens. If Judge Ginsburg aligns with this group, she could deprive Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas of leverage on the right they had before the retirement of Justice Byron White created the vacancy Judge Ginsburg is to fill.

The caveat needed in all such speculation is that Supreme Court justices often behave in unforeseen ways once they put on their black robes.

There has been some talk that Judge Ginsburg, at age 60, is too old to ensure a lasting Clinton legacy on the court. Considering the fact that actuarially women live longer than men, this hardly would disqualify her compared with some of the mid-fiftyish men the president considered.

The more important factor is the quality of her jurisprudence, and on this the early verdicts are mixed. She has gotten thumbs up from some legal scholars, thumbs down from others as a result of a fairly low profile record on the U.S. Circuit Court of Appeals for the District of Columbia, the nation's second-highest court and, at present, one of its most conservative. But here again, elevation to the high court can be transforming.

We have stated before that we would have preferred a justice with some background in the hurly-burly of politics, an element of public life now represented only by Justice O'Connor's service in the Arizona legislature. But since all such persons under consideration were males, Mr. Clinton may have chosen wisely.

Where he did poorly was to let his White House aides float trial balloon after trial balloon to see how various nominees would fly. This process was not only grossly unfair but it contributed to the impression of weakness and indecision that now plagues the president. Next time out, the selection of a Supreme Court nominee should be conducted with the dignity it deserves.

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