By Ruth Marcus
Washington Post Staff Writer
Tuesday, June 15, 1993
President Clinton yesterday nominated to the Supreme Court Ruth Bader Ginsburg, a pioneer in the development of legal rights for women and a centrist voice on the federal appeals court here.
The Rose Garden announcement concluded an unusually public search for a justice that has dragged on for the nearly three months since Justice Byron R. White announced that he would retire this summer.
Clinton, making the first Supreme Court nomination by a Democratic president in 26 years, praised Ginsburg as a "healer" who could help bring consensus to a court that has become ideologically fractured in recent years.
"Throughout her life, she has repeatedly stood for the individual, the person less well-off, the outsider in society, and has given those people greater hope by telling them they have a place in our legal system," Clinton said.
Ginsburg drew praise from Democratic and Republican senators, who said they foresaw no confirmation problems. But some, like the various interest groups scrambling to brush up on the unexpected choice, said they were unfamiliar with her record.
Senate Minority Leader Robert J. Dole (R-Kan.) called Ginsburg "a good choice" who would likely be "well-received" in the Senate.
But it was not clear, with the lateness of the nomination, that there would be time to hold hearings and a confirmation vote before the August recess. White had timed his announcement so that his replacement, unlike recent nominees, would not have to cram for the start of the term in October.
At the sun-drenched Rose Garden announcement, Ginsburg, 60, recalled the days when, as a young law school graduate with superb credentials, she was rebuffed by New York law firms. She said she hoped her nomination to be the second woman on the high court, joining Justice Sandra Day O'Connor, would contribute "to the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers."
She concluded with an emotional tribute to her late mother, saying, "I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons," she said.
Ginsburg was appointed to the D.C. Circuit Court of Appeals by President Jimmy Carter in 1980, and said she looked forward to "stimulating weeks this summer" as the Senate considered her nomination to be the nation's 107th justice. She offered no specifics about her legal views.
If confirmed, she would be the first Jewish justice since the late Justice Abe Fortas resigned in 1969. She is also the first nominee by a Democratic president since Lyndon B. Johnson selected the late Justice Thurgood Marshall in 1967.
Reporters had been told Clinton would take questions at the conclusion of the ceremony. But the session was abruptly cut off after the first question when ABC correspondent Brit Hume asked about the extraordinary last week of the search.
White House officials had first said Clinton was leaning toward Interior Secretary Bruce Babbitt, then that he was inclined to name Judge Stephen G. Breyer of the 1st U.S. Circuit Court of Appeals in Boston.
Clinton held a much-publicized lunch with Breyer on Friday -- White House aides even provided details of the menu -- and Breyer was told to stay in town. The president secretly interviewed Ginsburg for 90 minutes in the White House residence Sunday morning and aides finished intensive background checks on her that afternoon. He told aides in the afternoon that he had settled on Ginsburg and called her at 11:33 p.m. Sunday to offer her the job.
Asked by Hume about the "impression, perhaps unfair," of a "certain zigzag quality in the decision-making process," Clinton, who had wiped a tear from his eye as Ginsburg finished her acceptance speech, responded in angry tones.
"I have long since given up the thought that I could disabuse some of you of turning any substantive decision into anything but a political process," Clinton retorted. "How you could ask a question like that after the statement she just made is beyond me."
The audience, which included Ginsburg's family, senators and Senate staff, Washington lawyers and friends, applauded loudly. Hillary Rodham Clinton, whom Ginsburg said she had not met before yesterday, walked toward the stage and Clinton cut off the questioning.
Ginsburg had been on the first list Clinton considered the day after White's March 19 announcement. But she came under serious consideration only in recent days as Clinton worried about removing Babbitt from the Interior post and told aides he wanted a backup in case Breyer did not work out.
White House officials insisted that Breyer's failure to pay Social Security taxes for a part-time cleaning woman, although a concern, did not play a role in Clinton's final selection of Ginsburg.
Sources said Clinton was simply not convinced after his lunch with Breyer and -- to the surprise of some aides -- connected much better with Ginsburg. "In the end," one senior official said, the choice "was as much a matter of intuition as anything else."
Ginsburg, a graduate of Cornell University, attended both Harvard and Columbia law schools, and served on the law reviews of both. She taught law at Rutgers University and Columbia, and headed the American Civil Liberties Union's Women's Rights Project.
In that role, Ginsburg was a key architect in developing a strategy during the 1970s to establish legal rights for women, similar to the campaign in previous decades to win equality for blacks.
Ginsburg argued a series of landmark sex discrimination cases before the Supreme Court, winning five out of six as she pressed the justices to use the equal protection clause to strike down laws that discriminated against women.
After joining the D.C. Circuit, however, Ginsburg disappointed some supporters who had expected her to adopt a more liberal stance. Instead, as presidents Ronald Reagan and George Bush added a majority to the court, Ginsburg found herself in the center of the court.
A 1988 computer study by Legal Times found that she sided more often with Republican appointees than Democrats. In divided cases, she lined up most often with two Reagan appointees, Judge Kenneth W. Starr, who later became Bush's solicitor general, and Judge Laurence H. Silberman.
In a White House handout summarizing her 13 years on the appeals court, officials presented her as tough on crime, committed to free speech and freedom of religion, and supportive of civil rights but sensitive to enforce the laws "in a way that heals rather than divides us as a nation."
She has voted to uphold the constitutionality of the independent counsel law, to overturn the Reagan administration's denial of visas for political reasons and to support the right of Jewish military officers to wear yarmulkes while on duty.
Some union lawyers have expressed concern about two labor rulings in which Ginsburg voted against unions.
On the most contentious issue in recent confirmations, Ginsburg supports a woman's right to choose an abortion. But she has been critical of Roe v. Wade, the 1973 ruling establishing constitutional protection for abortion rights and laying out strict rules for state imposition of abortion regulations.
In a speech in March, Ginsburg argued that the court erred with the "breathtaking" sweep of the Roe decision, saying that a less far-reaching decision that allowed states to continue to move forward with revision of abortion laws on their own "might have served to reduce rather than to fuel controversy."
White House officials said yesterday that, despite those criticisms, they see Ginsburg as an abortion rights supporter and said her nomination fulfills Clinton's statement that he wants someone on the court who believes in the broad constitutional right to privacy. They also said they believe Ginsburg's writings are supportive of a constitutional requirement for abortion funding for poor women.
Reaction from abortion rights advocates and antiabortion activists was mixed yesterday as both sides hurried to learn more about the prospective justice.
Kate Michelman, president of the National Abortion Rights Action League, called Ginsburg's criticism of Roe "cause for concern" and said the Senate Judiciary Committee should determine "whether Judge Ginsburg will protect a woman's fundamental right to privacy, including the right to choose, under a strict scrutiny standard."
That standard, adopted in Roe, has been abandoned by the court for the looser test of whether abortion restrictions constitute an "undue burden," a test that has allowed states to adopt measures such as waiting periods.
Another leading abortion rights advocate and former Ginsburg student, Janet Benshoof of the Center for Reproductive Law and Policy, praised the appointment and said Ginsburg's "particular expertise in constitutional issues will benefit the development of the law in the area of reproductive privacy."
On the other side of the abortion debate, the National Right to Life Committee said that Ginsburg's constitutional approach "apparently would invalidate even the types of limits on abortion permitted by Roe, such as parental consent laws and limits on late-term abortions."
On the issue of whether a constitutional right to privacy protects homosexual conduct, an issue the court may soon be asked to revisit, Ginsburg's record raised concerns among gay rights advocates.
In a celebrated 1984 case, she voted to dismiss a sailor's challenge to his dismissal for homosexual conduct, saying she was bound by an earlier Supreme Court ruling. That vote, said Tim McFeeley of the Human Rights Campaign Fund, "raises questions regarding her views."
"Until she began her work in the '70s, the Supreme Court had never found that invidious discrimination against a person because of gender was unconstitutional."
-- Sen. DANIEL PATRICK MOYNIHAN (D-N.Y.), predicting the Senate will confirm Ginsburg by a 100-0 vote
"I just think this is a clean, clean appointment . . . what you've got is a centrist here who, quote, leans in the liberal side of what the court is today."
-- Sen. Dennis DeConcini (D-Ariz.)
"I believe she's a Democrat nominee that even conservatives can like and respect."
-- Sen. CHARLES E. GRASSLEY (R-Iowa)
"She has demonstrated during the course of her judicial experience that she's prepared to take independent positions which might, in fact, alienate the very groups that might have supported her in the past."
-- Sen. WILLIAM S. COHEN (R-Maine)
"I'm glad to see the second woman. I hope to see the third, and the fourth, and on and on."
-- Sen. Patrick J. Leahy (D-Vt.)
"Here's a woman who couldn't get a job with a law firm when she graduated from law school, a person who can joke about her kids putting up with their father's cooking and a person who has been involved with some of the landmark cases regarding the rights of women in our time."
-- HARRIETT WOODS
President, National Women's Political Caucus
"She is the Thurgood Marshall of gender equality law . . . . Were she to join the court, she would eventually be considered one of the court's great justices."
-- JANET BENSHOOF
President, Center for Reproductive Law and Policy and student in Judge Ginsburg's 1970 "Women and the Law" course at Harvard Law School
"A majority of Americans don't want a pro-abortion litmus test used for the Supreme Court -- but that's what Bill Clinton used."
-- WANDA FRANZ
President, National Right to Life Committee
GAY RIGHTS GROUPS
"Her opinions seemed to be that the right to privacy did not extend to homosexual conduct in and out of the military."
-- GREGORY J. KING
Human Rights Campaign Fund
"We hope President Clinton knows more about Judge Ginsburg than he knew about Lani Guinier, but we are taking no chances and will thoroughly investigate every facet of Judge Ginsburg's record and qualifications."
-- THOMAS L. JIPPING
Legal affairs analyst, Coalition for America
"Questions have been raised . . . about Ginsburg's stands on access to the courts, on privacy rights, as well as her capacity to forge effective coalitions among justices on the moderate-liberal wing of the court."
-- ARTHUR J. KROPP
President, Action Fund, People for the American Way
SOURCES: Public statements, Washington Post interviews, Associated Press