The Ginsburg Record and Standard

Published July 26, 2005

National Review Online

At her 1993 confirmation hearing, Ruth Bader Ginsburg, invoking her ethical obligation as a judge to maintain both the fact and the appearance of impartiality, steadfastly declined to answer any questions about her current views on issues that might come before the Court. As she explained the Ginsburg Standard in answering a question about “sexual orientation”: “I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.” On issue after issue after issue, Ginsburg applied this standard in not answering questions.

Members of the Senate Judiciary Committee — both Republicans and Democrats — respected the line that Ginsburg drew. Senate Republicans, embracing the principle that President Clinton’s nominee was entitled to substantial deference, joined Senate Democrats in expeditiously confirming Ginsburg by a 96-3 vote.

Republicans’ respect for the Ginsburg Standard is all the more notable in light of the fact that Ginsburg, at the time she was nominated, had a record of extremist constitutional and policy views that placed her on the far left fringes of American society. I have documented aspects of that record at length and in detail. But in light of the renewed focus on the Court and some efforts to apply a different standard — a double standard — to a nominee who (like all the other candidates President Bush considered) is by any measure far more “mainstream” than Ginsburg was, I believe it appropriate and useful to do so here again. So here are some examples:

1. Protecting Prostitution. Ginsburg had opined that several federal laws against prostitution “are subject to several constitutional and policy objections. Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” In support of this proposition, Ginsburg cited only two cases involving contraception (Griswold and Eisenstadt) and one involving abortion (Roe). She further recommended that the federal laws against prostitution be repealed.

The right to contraception for married persons in Griswold was based squarely on the marital relationship — not something that prostitution is generally thought to promote. The extension of that right to unmarried persons in Eisenstadt invoked the right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” — again, not something generally thought to be involved in prostitution. And while the “right of privacy” that Roe relies on is entirely amorphous, there is nothing in its discussion that would appear to extend that right to include prostitution. Thus, the most natural reading of Ginsburg’s proposition that prostitution is arguably constitutionally protected is that Ginsburg had strong sympathy for that proposition.

2. Protecting Bigamy. Ginsburg had opined that a law restricting the rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” Ginsburg offered only a weak “Cf.” cite to Griswold and Eisenstadt in support of this proposition. But the marital relationship that Griswold celebrates is plainly the traditional one-husband, one-wife version: marriage is “an intimate relation of husband and wife” and a “bilateral loyalty.” And Eisenstadt speaks of the “right of the individual, married or single,” not of the bigamist. Again, Ginsburg’s constitutional argument is an extreme one that makes it most reasonable to conclude that Ginsburg had strong sympathy for that argument.

3. Abolishing Mother’s Day and Father’s Day. Ginsburg had stated, “Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parent’s Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” I have previously parsed the question whether Ginsburg was proposing to abolish Mother’s Day and Father’s Day or was instead merely proposing that abolition “be considered.” Suffice it to say that, either way, hers is not a mainstream position.

4. Criticizing the Boy Scouts and Girl Scouts. According to Ginsburg: “The Boy Scouts and Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.”

5. Urging Co-Ed Prisons. This one may be my favorite, as it starkly illustrates how far removed Ginsburg was from the real world: “Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal.… If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected.”

6. Reducing the Age of Consent to 12. Ginsburg had recommended legislative changes that would reduce the age of consent for statutory rape under federal law from 16 to 12. [See here.]

(The documentation for items 1 through 5 is provided here. See pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76 for item 6.)

7. Requiring Taxpayer Funding of Abortion. Ginsburg strongly criticized the Court’s ruling that taxpayers are not constitutionally required to subsidize non-therapeutic abortions. (See Ginsburg’s chapter on the 1976 Term of the Supreme Court in a book titled Constitutional Government in America.)

8. Practicing “Limousine Liberalism.” Ginsburg had opined that an employer who had a manifest racial imbalance in the composition of his work force could be subjected to court-ordered quotas even in the absence of any intentional discrimination on his part. But Ginsburg herself, at the time of her Supreme Court nomination, had operated her own judicial office for over a decade in a city that was majority black, but had never had a single black person among her more than 50 hires. (Senator Hatch established this glaring inconsistency at the outset of Ginsburg’s confirmation hearing.)

I am, of course, not claiming that this mix of constitutional and policy views provides a full account of Ginsburg’s record at the time of her nomination. But no one has alleged anything in John Roberts’s record that remotely compares to the established extremist aspects of Ginsburg’s. Senate Democrats, having recognized the legitimacy of the Ginsburg Standard when applied to Ginsburg’s nomination, are obligated to respect Judge Roberts’s invocation of that same standard.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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