How to Examine Ginsburg


June 17, 1993|By JAMES J. KILPATRICK

WASHINGTON — Washington.--Let me advance a modest proposal. Next month the Senate Judiciary Committee will take up the nomination of Ruth Bader Ginsburg to the Supreme Court. When the committee puts together its list of witnesses, the list should be limited to: Ruth Bader Ginsburg.

If committee staff have done their job, committee members will be fully prepared to question the nominee about her judicial philosophy. Various pressure groups, pro and con, also will have primed the senators. When members run out of questions to ZTC Judge Ginsburg, Chairman Biden should call for a vote. No more witnesses. End of hearing.

Such a procedure would mightily offend a dozen publicity seekers eager for time on TV, but so what? Let them file written statements for the record.

By questioning only the nominee herself, the committee would spare us the kind of ugly manslaughter that we saw with the nomination of Robert Bork. The procedure would prevent another attempted lynching in the pattern of Clarence Thomas. It would fully serve the constitutional requirements for the Senate to advise and consent.

Suppose committee staff, prompted by an enemy's tip, turned up some adverse information. Let us say that Judge Ginsburg had failed to pay a parking ticket in 1969. The horrid accusation could be heard in executive session.

There was a time when prolonged investigation and questioning were not the style. Justices Taft, Sutherland, Byrnes and Burton were confirmed on the day they were nominated. It took the Senate only two days to put Holmes on the bench, eight days for Hughes.

Over the past 40 years, a pattern has developed of cumbersome procedures. Judge Ginsburg will be required to fill out a questionnaire that stops just short of asking her to list the fillings in her teeth. Staff will have rounded up every lecture she made as a law professor, every article she ever wrote for a law review, every speech she ever delivered, and every opinion she has written as a circuit judge.

After this mass of grist has been ground through the mill, the committee and the country will know all we ought to know about how Judge Ginsburg will vote when she becomes Justice Ginsburg. It is reasonable to assume that on close constitutional cases she will vote a liberal line with Blackmun and Stevens, but justices often surprise us.

In reporting the Ginsburg story, the New York Times said her nomination ''stunned'' lawyers and jurists. These worthies must

stun easily. Permit me to recall, smugly, that I predicted Judge Ginsburg's nomination in a column last month. It's nice to hit a homer now and then.

In that column, I commented that nominations to the high court are governed by three criteria. These are politics, politics and politics. So it was with Mrs. Ginsburg. Given his repeated vows before the gods of diversity and multi-culturalism, President Clinton could not have nominated a white male to the court. Maybe later, not now.

His first consideration was entirely political. Mr. Clinton could not afford to incite a riot in the Senate. He has his hands full with his budget bill. Senators are balking at new taxes. Health reform and election reform are waiting in the wings. The president needs a shoo-in, and Ginsburg is it.

Other political considerations played a part. Judge Ginsburg is an authentic woman. (Justice O'Connor is not an authentic woman; she is a Republican woman.) Moreover, Judge Ginsburg is an authentic Jewish woman, and the court has not had a Jewish justice since Fortas departed in 1969. At 60, she is a little long in the tooth, but she should be good for 20 years.

Despite some apostasy on the matter of Roe v. Wade, the abortion case, Judge Ginsburg plainly is politically correct. As a lawyer for the American Civil Liberties Union, she participated in three memorable cases before the Supreme Court.

She was on the ACLU's brief in the Reed case of 1971, striking down sexual discrimination in the administration of estates. In 1973, she presented oral argument in behalf of Air Force Lt. Sharon Fronteiro, winning equal rights for women in military service. In 1976, she had a hand in writing the brief for Curtis Craig, who successfully challenged Oklahoma's discriminatory age limits for buying beer.

If committee staff will bend to their task, there is no apparent reason why Judge Ginsburg cannot be confirmed before the start of term in October. Everything so far suggests that she will be warmly welcomed when she comes on board.

James J. Kilpatrick is a syndicated columnist.

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