'Rubber-Stamping' Judge Ginsburg

August 10, 1993

Ruth Bader Ginsburg begins her career as a Supreme Court justice today. She was confirmed by the Senate by a vote of 96-3 only three working days after the Senate Judiciary Committee recommended her confirmation unanimously. Quite a contrast from the last go-round. In 1991, the committee recommended against confirmation of Judge Clarence Thomas, and the full Senate confirmed by only a 52-48 vote.

Judge Thomas was criticized for a lot of things in his hearings, including non-responsiveness to questions about his legal philosophy. At times, Judge Ginsburg was as unforthcoming as Judge Thomas -- and forgiven for it. This led Judiciary Committee member Carole Mosely-Braun to complain that the standard of questioning was such "that [it] has the potential to reduce this committee's involvement to a rubber stamp."

But this is the traditional way. The Thomas hearings were an exception to the rule, as were the 1987 hearings on Judge Robert Bork, who was closely questioned. The tradition was observed in the hearings on nominees David Souter, Anthony Kennedy, Antonin Scalia and Sandra Day O'Connor. In varying degrees, they were unresponsive, too, and forgiven. A total of one committee vote was cast against those four nominees -- against Judge Souter. In the full Senate, only nine votes were cast against him, and none was cast against nominees O'Connor, Scalia or Kennedy.

Is this rubber-stampism? No. There are two elements here. One is, did the hearings bring out what kind of justice Ruth Bader Ginsburg is likely to be? The other is, should any senators who believe that she is likely to vote differently on the court than they would prefer vote against her?

As to the first, we think so. Senators know as much about her point of view, intellect, character and probable future course of action as does President Clinton. She has a record, and she answered enough of the committee members' questions.

As to the second, a senator has a right to vote against a nominee on the basis of how that nominee might vote on a particular case in the future. But as Judiciary Committee member Orrin Hatch, a Republican, reminded witnesses who testified against Judge Ginsburg, Bill Clinton won the election, and therefore he gets to decide which views, known or presumed, are important in a judicial nominee. If the Senate turns down an otherwise qualified nominee because it believes he or she favors, say, abortion rights, the president is just going to nominate someone else -- perhaps less qualified -- he presumes also favors such rights.

The Judiciary Committee handled this nomination just right, including establishing new ground rules that protected the nominee against public airing of any irresponsible charges. This proved to be unnecessary this time, but it might be helpful in the future.

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