By Charles Lane
Washington Post Staff Writer
Friday, March 17, 2006
Supreme Court Justice Ruth Bader Ginsburg assailed the court's congressional critics in a recent speech overseas, saying their efforts "fuel" an "irrational fringe" that threatened her life and that of a colleague, former justice Sandra Day O'Connor.
Addressing an audience at the Constitutional Court of South Africa on Feb. 7, the 73-year-old justice, known as one of the court's more liberal members, criticized various Republican-proposed House and Senate measures that either decry or would bar the citation of foreign law in the Supreme Court's constitutional rulings. Conservatives often see the citing of foreign laws in court rulings as an affront to American sovereignty, adding to a list of grievances they have against judges that include rulings supporting abortion rights or gay rights.
Though the proposals do not seem headed for passage, Ginsburg said, "it is disquieting that they have attracted sizeable support. And one not-so-small concern -- they fuel the irrational fringe."
She then quoted from what she said was a "personal example" of this: a Feb. 28, 2005, posting in an Internet chat room that called on unnamed "commandoes" to ensure that she and O'Connor "will not live another week."
Ginsburg's counterattack on GOP critics, posted on the court's Web site in early March but little noticed until now, comes at a time when tensions are already high between the federal judiciary and the Republican-led Congress. The rift stems in part from conservatives' unhappiness over the Supreme Court's use of foreign laws in decisions striking down the juvenile death penalty and laws against sodomy.
Some conservatives are still fuming over the federal courts' refusal to intervene in the Terri Schiavo case last year.
Rep. Tom Feeney (R-Fla.), author of one of the resolutions to which Ginsburg alluded, said yesterday that "no one in Congress wants to compromise the safety of any public official."
But Feeney noted that some of Ginsburg's own colleagues on the court disagree with her. He said "there are some justices that get awful thin skins when they get their black robes on, and when they talk about judicial independence, they sometimes mean no one should be able to criticize them."
Reflecting the tension between the two branches, O'Connor used a speech at Georgetown University Law Center last week to repeat her own past warnings about the threat to judicial independence posed by Republican criticisms of the court's rulings. She referred to comments by former House majority leader Tom DeLay (Tex.) and Sen. John Cornyn (Tex.) but did not name either man.
She noted that death threats against judges are rising, according to a National Public Radio report on the speech, but she did not refer to the Internet threat mentioned by Ginsburg. No transcript or recording of O'Connor's speech is publicly available.
In her speech, Ginsburg said that the Internet posting was brought to her attention by Supreme Court Marshal Pamela Talkin, who is responsible for court security.
According to Ginsburg, the posting said: "Okay, commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then these two justices will not live another week."
Kathleen L. Arberg, a court spokeswoman, declined to say yesterday whether the threat resulted in any special precautions, citing a court rule against discussing security measures.
But Ginsburg joked in her speech that O'Connor, though recently retired, "remains alive and well." She added: "As for me, you can judge for yourself."
Ginsburg's comments in Johannesburg were not the first tough words she has aimed at congressional Republicans.
In February 2001, speaking before an Australian audience, she took aim at DeLay, who had floated the idea of impeaching judges because of their rulings. DeLay, she noted on that occasion, "is not a lawyer but, I'm told, an exterminator by profession."
But this year's speech showed how committed Ginsburg has become to the use of foreign legal materials since her appointment to the Supreme Court by President Bill Clinton in 1993.
While emphasizing that the rulings and reasoning of non-U.S. courts are not "controlling authorities," she told the South African audience that foreign law can be a useful source of common standards of fairness. The Supreme Court's citation of them shows "comity and a spirit of humility" toward other countries, she said.
On the Supreme Court, Ginsburg's view is backed, to one degree or another, by Justices John Paul Stevens, Anthony M. Kennedy, Stephen G. Breyer and David H. Souter.
It is strongly opposed by Justices Antonin Scalia and Clarence Thomas. The court's two newest members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet written opinions in cases involving foreign law, but both voiced objections to its use at their confirmation hearings.