Judge Ruth Bader Ginsburg, the first Democratic nominee to the Supreme Court in 26 years, testified yesterday that judges must remember "their place in society" and suggested she would not steer the court beyond prevailing public sentiment.
The opening day of Senate Judiciary Committee confirmation hearings on Ginsburg's nomination was relaxed, amiable and generally uninformative, as the nominee followed the now standard practice of avoiding specifics about her views.
The atmosphere was broken only at one point when a frustrated Chairman Joseph R. Biden Jr. (D-Del.) tried to square Ginsburg's bold advocacy as a women's rights lawyer with her cautious, even conservative, approach to judging.
Biden asked whether the court should ever move ahead of the majority and expand constitutional protection -- a question that ultimately could bear on whether the high court, for example, strikes down laws that deny people benefits based on their sexual orientation.
Ginsburg refused to be pinned down, instead stressing the value of incremental change. "The spirit of liberty must lie in the hearts of the women and men of this country," she said.
"It would be really easy, wouldn't it?" she asked Biden, "to appoint platonic guardians" who function above and beyond the political system. "But then we wouldn't have a democracy. Judges must be mindful of what their place is in society."
Overall, Ginsburg sidestepped difficult questions about the most controversial issues that come before the court, such as abortion and the death penalty, generally responding by citing the current Supreme Court position in a particular area.
Nonetheless, she impressed senators as serious and confident.
In a rare moment of levity, after Sen. Edward M. Kennedy (D-Mass.) had asked her to talk about some of the sex discrimination cases she handled in the 1970s, Ginsburg recalled a man who wanted to be a "stewardess." She said she was talking about the case to some colleagues at lunch, when a waitress interjected that she had recently flown from Europe to the United States: "On that plane, there was the most adorable steward."
To which Ginsburg's male colleagues exclaimed, "Ruth, do women look at men that way?"
"Damn right, they do," she responded. The hearing room erupted in laughter.
This nomination, President Clinton's first, stands in marked contrast to the nominations during the Ronald Reagan and George Bush presidencies, in which Democrats accused the White House of trying to pack the court with conservatives who would roll back liberal rulings of the Warren and Burger eras.
Democratic and Republican senators praised Ginsburg for what appears to be a moderate approach to judging. "No one can seriously claim that the president selected Ruth Bader Ginsburg to carry out a political agenda," said Sen. Howard M. Metzenbaum (D-Ohio.).
Sen. Orrin G. Hatch (Utah), the committee's ranking Republican, freely praised Ginsburg's reponses to his first round of questions. Sen. Howell T. Heflin (D-Ala.) summed up the change in tone: "Back-slapping has replaced back-stabbing."
Since Clinton nominated Ginsburg last month to succeed retired Justice Byron R. White, the only controversy -- albeit comparatively minor -- has concerned her criticism of the breadth of the court's 1973 landmark ruling in Roe v. Wade.
Ginsburg has said that the court's opinion, making abortion legal nationwide, "ventured too far in the change it ordered." She has criticized the justices for grounding a right to abortion in the concept of a personal liberty or autonomy, arising from the 14th Amendment's due process guarantee, rather than also relying on an equal protection guarantee against sex discrimination.
Metzenbaum asked her about her essays on the subject, which have troubled some feminists. Ginsburg sought to reassure the liberal Metzenbaum that her writings were mostly an academic exercise.
"I wrote an article that was engaging in 'what if,' " she said. " . . . I expressed the view that if the court had stuck to the very case before it, {in Roe} then there might have been a gradual change in the country," rather than a backlash and moves toward state regulation of abortion.
In her opening statement to the committee, Ginsburg characterized her approach to judging as neither "liberal nor conservative."
"Rather," she said, in her trademark deliberate cadence, "it is rooted in the place of the judiciary -- of judges -- in our democratic society." The judiciary is "apart from the political fray so that its members can judge fairly, impartially, in accordance with the law and without fear about the animosity of any pressure group."
She said she would decide "concrete cases, not abstract issues." Such sentiment is consistent with her past 13 years on the D.C. Court of Appeals.
Quoting Justice Benjamin Cardozo (1932-38), Ginsburg told the senators, "Justice is not to be taken by storm. She is to wooed by slow advances."
As one step toward warding off sticky questions, Ginsburg said, "You are well aware that I come to this proceeding to be judged as a judge, not as an advocate."
She said the courts "do not guard constitutional rights alone. Courts share that profound responsibility with Congress, the president, the states, and the people."
Her half-hour opening statement included a personal note, reminiscent of her speech on June 14 when Clinton nominated her. She referred to the travails her Jewish ancestors faced and said, as a first-generation American, "What has become of me could happen only in America."
Her remarks were laced with references to the discrimination a woman who is 60 had seen and the fact that she would be only the second female justice. "Yes, there are still miles in front, but what a distance we have traveled from the day President Thomas Jefferson told his secretary of state: 'The appointment of women to {public} office is an innovation for which the public is not prepared. Nor, am I.' "
Ginsburg displayed a picture book that her grandson, Paul, had prepared. Paul, who will turn 7 Sunday, titled his colored construction-paper book, "My Grandma Is Very Special."
Both Paul and her other grandchild, Clara, 3, sat in the row behind Ginsburg, along with other family members and Clinton administration staff.
Virtually all of the senators, in their statements, stressed Ginsburg's successful advocacy before the Supreme Court in the 1970s to extend the constitutional guarantee of equal protection of the law to women. Until 1971, equal protection guarantees only barred race-based discrimination.
"To be honest," Sen. Dianne Feinstein (D-Calif.) said, "until I began preparing for these hearings I did not fully understand your critical role in breaking down the barriers that had barred women from the public and private sectors for centuries."
Feinstein, like many of her colleagues, thanked Ginsburg on behalf of her daughter who she said saw far fewer barriers because of her sex, in part because of Ginsburg's advocacy.
Sen. Arlen Specter (R-Pa.) cautioned his collegues to scrutinize the nominee and not to make it appear that the committee "was just going through the motions." Specter only this week returned to the Senate after undergoing surgery to remove a benign brain tumor.
Hatch asked the judge whether an employer should be open to race discrimination charges based only on a statistical imbalance between whites and blacks in his workplace. Ginsburg avoided the hypothetical question and said discrimination cases "come to us with a very large record of facts" that determine how a judge should rule.
Hatch, who has argued that small businesses often face frivolous lawsuits based on lopsided hiring statistics, said he wanted to make the point that justices should be aware of real-world conditions.
He noted that the judge herself in her 13 years at the D.C. Circuit had never hired a black law clerk.
Ginsburg acknowledged that was true, but added, "I have tried to {hire blacks}, and I am going to try harder. If you confirm me for this job, my attractiveness to black candidates is going to improve."