Judge Ginsburg and the litmus test

June 16, 1993

The first critics of Supreme Court nominee Judge Ruth Bader Ginsburg were pro-choice leaders. That is doubly surprising. It is a surprise to the critics themselves because candidate Bill Clinton promised them he would apply a "litmus test" to this nomination. The test was that the nominee support Roe vs. Wade, which Judge Ginsburg has criticized. But today's criticism is itself a surprise. We say that because closely read, Judge Ginsburg's views on Roe are not really inconsistent with the ideals of the pro-choice movement.

What the president said last year was that he would use what he himself labeled a "litmus test" because, "I want the first judge I choose to believe in the right to privacy and the right to choose." While in at least two speeches Judge Ginsburg has indicated she does not believe the right to privacy necessarily protects the right to an abortion, she does believe in choice (and perhaps even privacy). As we understand her argument, it is that the right of a woman to choose whether to have an abortion is better protected by other parts of the Constitution ensuring equal rights. If that is a fair assessment of her jurisprudence, then supporters of choice should be more than satisfied. So should those legal and political conservatives who have insisted over the years that they oppose Roe and choice only because they regard its privacy claim as bogus constitutionalism.

We assume the Senate Judiciary Committee will go into this area of Judge Ginsburg's thought in some detail. Questions about her philosophy of judging are proper. We look forward to her comments on all relevant issues. On the basis of what is known now about her, we assume she will survive the committee investigation with ease and be approved overwhelmingly by the full Senate. Indeed, that is the one characteristic that President Clinton appears to have demanded. That had become the real litmus test. His and his staff's stumbling, fumbling execution of the search for a nominee to replace Justice Byron White, following even worse gaffes in staffing the Justice Department and criticism of his leadership on domestic legislation and foreign policy issues made it imperative that he not have another fight or embarrassment on his hands once the nominee was chosen.

That is not the best reason in the world to select a Supreme Court justice but it is the rule, not the exception, for presidents to take personal advantage and politics of one sort or another into account when nominating a Supreme Court justice. On that score, the president has nothing to apologize for. On the other hand, he did display needless insensitivity to Secretary of the Interior Bruce Babbitt and Judge Stephen Breyer. Their names were leaked consecutively as certain choices for the nomination, only to be embarrassed by losing. But they have been around politics for a long time. They know it can be ugly and that mishaps and bruises are inevitable when playing for high stakes, which a Supreme Court seat definitely is.

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