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The Ginsburg Fallacy

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By Ruth Marcus
Tuesday, November 15, 2005

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.

marcusr@washpost.com


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