Judge Ginsburg's Jurisprudence

July 24, 1993

Supreme Court nominee Ruth Bader Ginsburg was as vague as possible in answering pointed questions in her confirmation hearing before the Senate Judiciary Committee. Some members of the committee chided her. But her refusal to hint how she might vote in particular cases was as traditional as some of the senators' attempts at entrapment.

Judge Ginsburg explained what the senators already knew: Without reading the briefs, listening to the oral arguments, researching precedents, conferring with colleagues, a justice cannot -- or at least should not -- have an opinion on a case.

But in one way the discreet Mrs. Ginsburg was more forthcoming than previous Supreme Court nominees. She said that she found a right to an abortion in the Constitution. No nominee since Roe vs. Wade was decided 20 years ago has said that.

Specific issues aside, Judge Ginsburg's testimony differed from recent nominees in enunciating a philosophy. The choices of Ronald Reagan and George Bush who were willing to discuss their ideas of jurisprudence at all said or implied they took a narrow and historical view of the Constitution. Some called this "original intent." Judge Ginsburg said she took an "expansive" view of constitutional rights, and that these rights "evolve" as society evolves. She has been labeled a moderate, even a conservative, but that was an answer former Justice William Brennan and the late Justice Thurgood Marshall would applaud.

Sen. William Cohen told Judge Ginsburg many suspected she was "basically a political activist hiding in the robes of an appellate judge." Our view, reinforced by her performance at the hearings, is that hers is a substantive liberalism, but in terms of process she is very much a judicial moderate. Passive rather than active. She will defer to popularly elected presidents and legislators whenever she can justify it. She will rule cautiously in specific cases, even while reading the Constitution broadly, and she probably will not enunciate any sweeping legal theory in her decisions. Her judicial views will emerge cumulatively. She will be what one observer has called "a case by case justice."

Yet a justice's robe is quite a different garment from even an appellate judge's. The wearer often changes. "Clothes make the man" has a special meaning in the world of the law. It is certain the Judiciary Committee will approve Judge Ginsburg next Thursday, as it should. It can also be said with certainty, based on her history and her appearance before the committee, that she has the experience, intelligence and self-confidence to be a major figure on the Supreme Court.

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