Which Judge Ginsburg Will Show Up Tuesday?

August 08, 1993|By LYLE DENNISTON

Washington. -- Ruth Bader Ginsburg, already something of a national heroine, becomes an even more lasting eminence on Tuesday as she joins the Supreme Court -- only the second woman in history to take a place among 105 men who have been justices.

Strangely, though, almost no one can say with any confidence what kind of justice the 60-year-old Ms. Ginsburg will be. The reason is simple: Some 20 years of public prominence provide no sure answer, and neither do eight weeks of close scrutiny this summer.

Two decades ago, she began emerging from academic obscurity in America's legal community, and ever since she has been in or near the law's limelight. For the past eight weeks, she has been under Washington's -- and the nation's -- intense study as President Clinton's first nominee to the court, and the first in 26 years to be chosen by a Democratic president.

But nothing that she wrote or said over her years of highly visible celebrity, and nothing she or any of her many supporters or few detractors said this summer, gives a reliable clue of who the real Justice Ginsburg is likely to be -- in her first years on the highest bench, or ultimately.

She begins work Tuesday on a court struggling to define itself; she will be the fourth new member in five years. No judicial philosophy prevails predictably, no single member is dominant, all alliances seem loose and shifting. On such a court, Justice Ginsburg might be a dynamic leader or a cautious follower.

She begins work as a justice after a career that projected different, even contradictory public images: the precedent-smashing, inventive and liberated professional woman who crusaded for full equality of the sexes; and the careful, sometimes pained perfectionist willing to face an issue only after being (in her own words) "armed to the teeth" with preparation.

The first image is the one that seems to define her career as a women's rights lawyer, from the late 1960s through 1980; the second is the portrait of her life as a federal appeals court judge here since 1980.

From the moment Judge Ginsburg began speaking to the

Senate Judiciary Committee late last month, the contradictory images about her were on display.

She adoringly praised the work of pioneering American women -- reformers Susan B. Anthony, Elizabeth Cady Stanton, Harriet Tubman -- and remarked: "I stand on the shoulders of those brave people."

But then, to describe the style of judging she admired, she used a quotation from a former Supreme Court justice, Benjamin N. Cardozo, a now-dated quotation that is tinged with imagery of woman as a romantic object: "Justice is not to be taken by storm. She is to be wooed by slow advances."

At only one point in the hearings did Judge Ginsburg make comments that sounded like the views of a militant feminist: her expression of skepticism about the virtue of laws supposedly to "protect" women when such laws were passed by legislatures dominated by men.

The Judiciary Committee tried, with measured diligence, to find out which image fit her best. It failed in that pursuit during three days of nationally televised hearings. Then, it voted 18-0 to approve her despite the abiding mystery. The Senate, learning no more about her, went along, confirming her swiftly last Tuesday by a 96-3 vote.

She had not come before the committee as the "stealth candidate" that Justice David H. Souter had been when he appeared in 1990, a total unknown. Ms. Ginsburg had written 319 court opinions and taken part in some 400 others, had gained fame by the advocacy that coaxed the Supreme Court into taking a late 20th century view of the role and status of women, and had compiled stacks of scholarly and often provocative articles and speeches.

But there was, within that record, too much internal contradiction to define her with anything like clarity: For example, she favored a right to abortion but complained that the Supreme Court had been too bold in the way it fashioned such a right in Roe vs. Wade in 1973, and she accused the court of stifling a movement toward abortion reform in state legislatures.

Ms. Ginsburg's paper trail had been nearly as long as that of Supreme Court nominee Robert H. Bork (defeated in 1987), but his had been marked all along the way by a persistent, strong strain of conservatism.

Sen. William Cohen, Maine Republican, put the Senate's problem with nominee Ginsburg bluntly to her midway through the committee hearings: "There is some suspicion in some circles . . . that you are basically a political activist who's been hiding in the restrictive robes of an appellate judge, and that those restrictions will be cast aside when you don a much larger garment."

So, he said, senators would try "to probe exactly where it is you would likely take yourself -- and perhaps even the court -- on any given decision."

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