[Mb-civic] The Ginsburg Fallacy - Ruth Marcus - Washington Post Op-Ed

[William Swiggard]

The Ginsburg Fallacy

By Ruth Marcus
Tuesday, November 15, 2005; Page A21

To hear some Republicans tell it, letting Ruth Bader Ginsburg onto the 
Supreme Court was a tough pill to swallow. She was an ACLU-loving, 
bra-burning feminazi, but they supported her anyway, dutifully 
respecting the president's right to put his own stamp on the high court. 
Therefore, Democrats now owe President Bush the same deference when 
weighing his choice of Samuel Alito.

Ginsburg had "supported taxpayer funding for abortion, constitutional 
right to prostitution and polygamy," Texas Sen. John Cornyn (R) said at 
the confirmation hearings for Chief Justice John G. Roberts Jr. "And she 
opposed Mother's and Father's Days as discriminatory occasions. But 
nevertheless, Republicans . . . put that aside and supported her 
nomination because she had terrific credentials, and because President 
Clinton was entitled to nominate someone to the Supreme Court of his 
choosing."

Ginsburg, according to Sen. Lindsey Graham (R-S.C.), "said the age of 
consent for sexual activity for women should be 12. In her writings she 
said we need co-ed prisons because separate prisons are discriminatory 
against women. . . . Where I come from in South Carolina, that's about 
as far out of the mainstream as you can get, but it wasn't about whether 
or not . . . the Republicans agreed with her philosophy."

Strong argument -- if only it had happened that way. Either those 
peddling this conveniently muddled version of events don't remember it 
correctly or they are betting that others won't. Listeners beware: Those 
who don't remember history are condemned to be spun by it.

In fact, then-Judge Ginsburg was a consensus choice, pushed by 
Republicans and accepted by the president in large part because he 
didn't want to take on a big fight. Far from being a crazed radical, 
Ginsburg had staked out a centrist role on a closely divided appeals 
court. Don't take it from me -- take it from Sen. Orrin G. Hatch 
(R-Utah). In his autobiography, the Utah Republican describes how he 
suggested Ginsburg -- along with Clinton's second pick, Stephen G. 
Breyer -- to the president. "From my perspective, they were far better 
than the other likely candidates from a liberal Democratic 
administration," Hatch writes.

Was he conned by a polygamy-loving leftist? On the count of being 
associated with the American Civil Liberties Union, Ginsburg is guilty 
as charged: She helped shape the law on sex discrimination as head of 
the group's Women's Rights Project. Yet if her views were as far out as 
critics suggest, how did she manage to win five of the six cases she 
brought to the Supreme Court?

The nuttier positions were all mined from a 1974 report she co-authored: 
"The Legal Status of Women Under Federal Law." Did Ginsburg really think 
the age of consent should be lowered to 12? Conservative UCLA law 
professor Eugene Volokh has concluded that Ginsburg probably "was the 
victim of a drafting error." As to the rest, it's fair to say that 
Ginsburg flirted with such views in the report; the document said, for 
example, that "prostitution, as a consensual act between adults, is 
arguably within the zone of privacy protected by recent constitutional 
decisions" and recommended repealing federal prostitution laws.

But even if Ginsburg took that position, it doesn't tell you all that 
much -- which is no doubt why she got just one question about the report 
during her confirmation hearings. She hadn't made getting rid of 
Mother's Day her life's work. And in any event, she had a much more 
recent body of work -- her dozen years as an appeals court judge -- that 
belied any notion that she was a raging lefty.

According to a Legal Times study of voting patterns on the appeals court 
in 1987, for instance, Ginsburg sided more often with 
Republican-appointed judges than with those chosen by Democrats. In 
cases that divided the court, she joined most often with then-Judge 
Kenneth W. Starr and Reagan appointee Laurence H. Silberman; in split 
cases, she agreed 85 percent of the time with then-Judge Robert H. Bork 
-- compared with just 38 percent of the time with her fellow Carter 
appointee, Patricia M. Wald.

By contrast, University of Chicago law professor Cass Sunstein found 
that Alito, in the overwhelming majority of cases in which he dissented, 
took a more conservative stance than his colleagues. In short, if this 
were an SAT analogy, Ginsburg would not be to liberal as Alito is to 
conservative. Nor could her tenure on the high court be called "Ginsburg 
Gone Wild."

Not that conservatives aren't trying to make it look that way. On the 
night of the Alito nomination, for instance, Fox News's Sean Hannity 
pushed this argument. "You knew the very extreme positions of Ruth Bader 
Ginsburg, but you gave the benefit of the doubt to President Clinton," 
he prompted Sen. John McCain (R-Ariz.).

None of this, of course, answers the hard questions posed by the Alito 
nomination: Is his judicial philosophy within the ideological goalposts? 
Do those goalposts shift depending on the balance of the court, or the 
ideology of the departing justice? In grappling with those questions, 
though, no one should be taken in by the Ginsburg fallacy. It's what the 
justice herself might call a straw person.

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/14/AR2005111401021.html?nav=hcmodule
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