Unanimous judgment: Ginsburg would support liberals Friend and foe see her becoming activist

July 19, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A peculiar thing is happening to Ruth Bader Ginsburg on her way to the Supreme Court: She is staying out of trouble. As a result, she could win Senate approval with no hint of a fight of the kind that has rocked the Senate repeatedly on other justices-to-be.

On the eve of Senate Judiciary Committee hearings starting tomorrow, something else peculiar is occurring: Liberal and conservative groups are agreeing on a prediction -- that a Justice Ginsburg would be far more liberal than U.S. Appeals Court Judge Ginsburg has been for 13 years.

Throughout most of the five weeks since President Clinton chose the 60-year-old judge to replace retired Justice Byron R. White, Judge Ginsburg has been portrayed routinely as a "moderate" or "centrist" jurist, very much like the middle-of-the-road justices who control most of the court's biggest decisions.

But now, liberal and conservative organizations that have studied her record are trying to convince their constituencies and the public that she would be a changed person, in her judicial ideas and actions, once she dons the robes of a Supreme Court justice.

ANan Aron, executive director of a liberal group, the Alliance for Justice, said: "There are reasons to be optimistic that Judge Ginsburg will bring to the court an appreciation of the Constitution's role in safeguarding the rights of all people."

The judge, as a member of a federal appeals court, "has been constrained by the marching orders of an increasingly conservative Supreme Court," Ms. Aron added.

A conservative analyst, Thomas L. Jipping of the Free Congress Foundation, noted that Judge Ginsburg had said herself in the past that she saw a clear difference between the limited powers of a federal appeals judge and the much broader powers of a Supreme Court justice, with a lower court judge being pulled routinely "toward moderation."

The factors that cause that pull, Mr. Jipping said, "are not present on the Supreme Court. Judge Ginsburg's liberal politics and judicial activism may well dominate her tenure of the Supreme Court to a degree that no one anticipates, or is willing to admit publicly, today."

Their apparent agreement on the likely future of a Justice Ginsburg is part of what passes for political strategies on this nomination, especially in the absence of any significant controversy among Republicans or Democrats in the Senate. Both liberals and conservatives expect to use this nomination to advance their own agendas beyond the Ginsburg hearings.

Some liberal organizations have been working to quiet the discontent they found developing in their ranks over Judge Ginsburg as their legal experts dug more deeply into her Court of Appeals years and found what they considered to be frequent signs of conservatism.

Private strategy

In private conversations, leaders of those groups and liberal lobbyists have indicated that they did not want to make trouble, either for the nominee, who for years was a pioneering women's rights lawyer and thus had been one of their own, or for President Clinton, who may have other Supreme Court nominations that they would wish to influence.

Some of those leaders still prefer to keep their focus on Judge Ginsburg as a lawyer pressing distinctly liberal causes before the courts.

"I stay between 1970 and 1980 a lot" in thinking about Mrs. Ginsburg, said one of those individuals, speaking on condition of anonymity. That person was referring to the time when, as a civil rights lawyer, Mrs. Ginsburg helped lead the Supreme Court into an era that favored women's constitutional rights. "One can get very eloquent on the [Ginsburg] years of 1970 to 1980," that person added.

Within conservative organizations, the Ginsburg nomination has been perceived as a pleasant surprise -- a judge who has voted frequently, and agreeably, with her conservative Appeals Court colleagues named by Presidents Ronald Reagan and George Bush, and not nearly as often with her liberal colleagues who had moved to the bench -- as she did -- with nominations by President Jimmy Carter.

But those organizations have not wanted to seem too enthusiastic about the first nominee of Mr. Clinton, lest they convey the message that they would find it acceptable for Judge Ginsburg to get by the Judiciary Committee without a grilling like that faced by certain Reagan and Bush nominees -- Robert H. Bork, whose nomination was defeated, and Clarence Thomas, Anthony M. Kennedy and David H. Souter, who were confirmed.

One way, perhaps, to assure that Republican senators do quiz Judge Ginsburg, it has been suggested, is to spread the word that she is a liberal just waiting to be let loose on the Supreme Court.

The group that has become most vocal in raising public objections to her nomination -- the conservative Free Congress Foundation -- is asking that the Judiciary Committee question her closely enough to bring out her inclinations as a potential justice.

Not a moderate?

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