It is a sad reality that "Notorious RBG" (SCOTUS Justice Ruth Bader Ginsburg) is unlikely to outlive, at age 85, the likes of her probable newest colleague on the Court — a beer-swilling, sexual predator frat-boy. If this is essay is a (fair & balanced) counterpoise to the current Shame of the Nation, so be it.
[x New Yorker]
Misjudged — Ruth Bader Ginsburg’s Unlikely Path To The Supreme Court
By The Jillster (Jill Lepore)
TagCrowd Cloud of the following piece of writing
Ruth Bader Ginsburg blinked behind giant, round eyeglasses. It was the first day of her confirmation hearings, in July of 1993, the year after the Year of the Woman, and Joe Biden, the chairman of the Senate Judiciary Committee, was very pleased to see her. Keen to do penance for the debacle of the Clarence Thomas hearings, just two years before—the year before the Year of the Woman—when an all-male committee, chaired by Biden, failed to credit what Anita Hill had to say about George H. W. Bush’s Supreme Court nominee, he could hardly have been friendlier to Bill Clinton’s nominee, a much respected and widely admired sixty-year-old appellate judge. She sat with the stillness of a watchful bird. “Judge Ginsburg, welcome,” Biden said, heartily. “And, believe me, you are welcome here this morning.”
He had more reasons, too, to beam at Ginsburg. Only weeks earlier, Clinton had withdrawn his nomination of Lani Guinier as Assistant Attorney General, an abandonment that had followed the very new President’s unsuccessful nominations of two female Attorneys General, Kimba Wood and Zoë Baird. Clinton and Biden needed a successful, high-profile female appointment, one without a discussion of pubic hair or video porn or nannies. On the way to work on the first day of the Ginsburg hearings, Biden had read the New York Times on the train and found that there was no mention of Ginsburg on page 1, or page 2, or page 3, which, he told Ginsburg, “was the most wonderful thing that has happened to me since I have been chairman of this committee.” He flashed his movie-star grin.
During that first session, scheduled for two and a half hours, the committee members—sixteen men and two lately added women—did nearly all the talking, delivering opening statements. Not until the outset of the second session did Biden sidle up to a question. “The Constitution has to be read by justices in light of its broadest and most fundamental commitments, commitments to liberty, commitments to individual dignity, equality of opportunity,” he said, putting on his glasses, and taking them off again. Ginsburg blinked and stared and waited.
Biden’s question concerned a recent speech, the Madison Lecture [PDF], in which Ginsburg had said that in making decisions concerning rights not listed in the Constitution judges should be “moderate and restrained” and avoid stepping “boldly in front of the political process,” as he reminded her. “But, Judge,” Biden said, “in your work as an advocate in the seventies you spoke with a different voice. In the seventies, you pressed for immediate extension of the fullest constitutional protection for women under the Fourteenth Amendment, and you said the Court should grant such protection notwithstanding what the rest of society, including the legislative branch, thought about the matter. . . . Can you square those for me or point out their consistency to me?”
What Biden was getting at has been mostly lost in the years since, years during which Ruth Bader Ginsburg, a distinguished Justice, has become a pop-culture feminist icon, a comic-book superhero. In the past year alone, the woman known to her fans as the Notorious RBG has been the subject of a “Saturday Night Live” skit; a fawning documentary; an upcoming bio-pic, “On the Basis of Sex” (from a screenplay written by Ginsburg’s nephew); a CNN podcast, “RBG Beyond Notorious”; and a new biography, Ruth Bader Ginsburg: A Life (2018), by Jane Sherron De Hart, an emeritus history professor at the University of California at Santa Barbara.
Such lavish biographical attention to a living Supreme Court Justice is unusual, and, new, even if that change is easy to lose sight of amid the recent intense scrutiny of the high-school and college years of the Trump nominee, Brett Kavanaugh, who has been accused of sexual assault. (He has denied the allegations.) Unlike candidates for political office, most sitting Justices have preferred to remain, if not anonymous, largely unknown. The position is unelected, the appointment is for life, and the Justices are not supposed to place themselves in the public eye, for fear of making themselves beholden to public opinion: arguably, the less attention to their personal lives the better. Before the past, tumultuous decade, few, if any, Justices who hadn’t previously held an elected office had been the subject of a full-dress biography while still serving on the Court.
Writing a biography of a sitting Justice introduces all kinds of problems of perspective, authority, and obligation. Ginsburg has not yet deposited her papers in any archive and, having refused calls to resign under Obama’s watch, says that she has no plans to retire. De Hart, who began the project fifteen years ago, relied on published material, public records, and, extensively, interviews. Her publisher describes the book as “written with the cooperation of Ruth Bader Ginsburg.” It would have been impossible to write the book without that coöperation, but it comes at no small cost.
Making De Hart’s problems worse is Ginsburg’s unprecedented judicial celebrity. On Matt Groening’s animated series “Futurama,” Ginsburg appeared as an artificially preserved head, and although Antonin Scalia’s severed head made a cameo or two as well, it was the Ginsburg character’s catchphrase—“You Ruth Bader believe it!”—that ended up on T-shirts and coffee mugs, and is the thing your teen-ager says to you at the dinner table. This winter, Ginsburg, eighty-five, did her daily workout with Stephen Colbert on “The Late Show.” “I’m a huge fan!” Colbert said. Thurgood Marshall never lifted weights with Johnny Carson. This summer, three goats were brought to Montpelier to eat the poison ivy spreading throughout the Vermont state capital: they are named Ruth, Bader, and Ginsburg. To my knowledge, no flock of sheep were ever named Oliver, Wendell, and Holmes.
God bless Ruth Bader Ginsburg, goats, bobbleheads, and all. But trivialization—RBG’s workout tips! her favorite lace collars!—is not tribute. Female heroes are in short supply not because women aren’t brave but because female bravery is demeaned, no kind more than intellectual courage. Isn’t she cute? Ginsburg was and remains a scholar, an advocate, and a judge of formidable sophistication, complexity, and, not least, contradiction and limitation. It is no kindness to flatten her into a paper doll and sell her as partisan merch.
Doing so also obscures a certain irony. Ginsburg often waxes nostalgic about her confirmation hearings, as she did this September, when, regretting the partisan furor over Brett Kavanaugh—even before Christine Blasey Ford came forward—she said, “The way it was was right; the way it is is wrong.” The second of those statements is undeniably and painfully true, but the first flattens the past. What Biden was getting at, in 1993, was what the President himself had said, dismissing the idea of nominating Ginsburg when it was first suggested to him. “The women,” Clinton said, “are against her.”
Ruth Bader was born in Brooklyn in 1933. At thirteen, she wrote a newspaper editorial, a tribute to the Charter of the United Nations. Her mother, an admirer of Eleanor Roosevelt, died when she was seventeen. Bader went to Cornell, where she liked to say that she learned how to write from Vladimir Nabokov. At Cornell, she also met Martin Ginsburg, and fell in love. They married in 1954 and had a baby, Jane, in 1955. Brilliant and fiercely independent, Ginsburg was devoted to Marty, to Jane, and to the law. At Harvard Law School, which first admitted women in 1950, she was one of only nine women in a class of some five hundred. In one of the first scenes in “On the Basis of Sex,” Erwin Griswold, the dean of the law school, asks each of those nine women, during a dinner party at his house, why she is occupying a place that could have gone to a man. In the film, Ginsburg, played by Felicity Jones, gives the dean an answer to which he can have no objection: “My husband, Marty, is in the second-year class. I’m at Harvard to learn about his work. So that I might be a more patient and understanding wife.” This, which is more or less what Ginsburg actually said, was a necessary lie. It was possible for a woman to attend law school—barely—but it was not possible for her to admit her ambition.
In 1957, Marty was diagnosed with testicular cancer. During his illness and treatment—surgery followed by radiation—Ruth not only cared for him, and for the baby, but also covered all of his classes and helped him with his papers. She kept up an almost inhuman schedule, often working through the night. After Marty graduated, he took a job in New York, and Ruth transferred to Columbia. She graduated first in her class. “That’s my mommy,” four-year-old Jane said, when Ginsburg crossed the stage to accept her diploma.
Looking for work, Ginsburg confronted the limits of the profession’s willingness to take female lawyers seriously. Felix Frankfurter, the first Supreme Court Justice to hire an African-American clerk, in 1948, refused to hire a woman, even after he was reassured that Ginsburg never wore pants. Stymied, Ginsburg went to Sweden to undertake a comparative study of Swedish and American law. On her return, in 1963, she accepted a position at Rutgers, teaching civil procedure. A year and a half later, when she found herself pregnant—given her husband’s medical history, this blessing was unexpected—Ginsburg delayed informing the university, for fear of losing her position.
Ginsburg, in other words, had plenty of experience of what would now be called—because she called it this—discrimination on the basis of sex. In 1969, Ginsburg was promoted to full professor and her son, James, entered nursery school, rites of passage that freed her to explore a new interest: she began volunteering for the ACLU. Working with and eventually heading the ACLU’s Women’s Rights Project, Ginsburg pursued a series of cases designed to convince the Supreme Court, first, that there is such a thing as sex discrimination and, second, that it violates the Constitution.
Influenced by the pioneering constitutional analysis of Pauli Murray and Dorothy Kenyon, Ginsburg borrowed, too, from the strategy of Thurgood Marshall, who, as head of the NAACP’s Legal and Educational Defense Fund beginning in 1940, had pursued his agenda step by step, case by case, over fourteen years, all the way to Brown v. Board, decided in 1954. Erwin Griswold, notwithstanding his resentment of women law students, eventually dubbed Ginsburg “the Thurgood Marshall of gender equality law.”
She prepared herself for litigation by teaching courses on women and the law, a subject that had rarely been taught. An undisputed leader of an emerging field, she soon left Rutgers. (“Columbia Snares a Prize in the Quest for Women Professors,” the Times reported.) Unlike Marshall, who was very often on the front lines of civil unrest and political protest, Ginsburg worked full time as a law-school professor, which placed constraints on her time and kept her at some remove from protests taking place on the streets. And, as De Hart observes, several crucial features distinguish their strategies. Marshall relied on the equal-protection clause—“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws”—of the Fourteenth Amendment, which was adopted after the Civil War in order to stop the former Confederate states from denying former slaves equal rights. Ginsburg also invoked the equal-protection clause, but was left to argue only by analogy, suggesting that discrimination on the basis of sex is the same sort of thing. Finally, while there were plenty of rifts within the civil-rights movement, Marshall never had to battle African-Americans opposed to the very notion of equality under the law; Ginsburg, by contrast, faced a phalanx of conservative women, led by Phyllis Schlafly, who objected to equal rights altogether.
In one of the earliest of Ginsburg’s anti-discrimination cases, Reed v. Reed (1971), she established that an Idaho law that gave preference to men over women in the administration of estates violated the equal-protection clause. Ginsburg called her victory in Reed “a small, guarded step.” She next hoped to bring to the Supreme Court a case called Struck v. Secretary of Defense. When Captain Susan Struck became pregnant, she decided to have the baby, but Air Force policy meant that she would lose her job unless she had an abortion. Ginsburg prepared to argue Struck’s case on equal-protection grounds: since no Air Force policy barred men from having children, the government was discriminating against Struck on the basis of sex. In choosing a case that would advance a desperately needed argument about reproductive autonomy, Ginsburg had cleverly selected one in which the litigant had chosen to have a baby, rather than to end a pregnancy, so that the Court’s attention would be focussed on the equality claims of women (and not on the politics of abortion). But the Air Force changed its policy and, in 1972, at the urging of then Solicitor General Erwin Griswold, the case was dismissed, a decision that had profound consequences: the following year, the Court ruled on Roe v. Wade instead, and struck down anti-abortion legislation not on the ground of equal protection but on the ground of a much weaker constitutional doctrine, the right to privacy.
If Struck was Ginsburg’s next, carefully placed stepping stone across a wide river, Roe was a rickety wooden plank thrown down across the water and—Ginsburg thought—likely to rot. In a lecture she delivered in 1984, she noted the political significance of the fact that the Court had treated sex discrimination as a matter of equal protection but reproductive autonomy as a matter of privacy. When the Court overturned laws on the basis of sex discrimination, no great controversy ensued, she observed, but Roe v. Wade remained “a storm center.” She went on, “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.”
There are more what-ifs than there are stars in the sky. But Roe helped conservatives defeat the Equal Rights Amendment, which had passed Congress and appeared well on its way to ratification until Schlafly warned, starting in 1974, that the “ERA means abortion.” Following Ginsburg’s logic, it’s impossible not to wonder whether, if the Court had heard Struck instead of Roe, the ERA would have passed, after which reproductive rights would have been recognized by the courts as a matter of equal protection. And the nation would not have become so divided. If, if.
Asked by the ACLU to take on litigation relating to the defense of Roe, Ginsburg declined. Instead, she continued to pursue anti-discrimination cases, and first appeared before the Supreme Court in Frontiero v. Richardson, in 1973, advocating for Sharron Frontiero, an Air Force lieutenant who had been denied benefits for her husband which were granted to men for their wives. “I ask no favor for my sex,” Ginsburg told the nine men on the bench, quoting the nineteenth-century women’s-rights advocate Sarah Grimké. “All I ask of our brethren is that they take their feet off our necks.” Ginsburg won, though the Court’s holding was narrow. As she proceeded to try to widen that holding, she continued teaching at Columbia and writing law-review articles. In 1979, after Jimmy Carter signed legislation expanding the federal judiciary, Ginsburg began pursuing a judgeship.
Carter was determined to appoint women and asked Sarah Weddington, the lawyer who had argued Roe, to help him find them. By 1970, only three in a hundred lawyers and fewer than two hundred of the nation’s ten thousand judges were women. In 1971, Chief Justice Warren Burger, on hearing that Richard Nixon was considering nominating a woman to the Court, drafted a letter of resignation. “Feminist Picked for US Court of Appeals Here,” the Washington Post announced in December of 1979, even before Carter had officially named Ginsburg to the DC Circuit.
Strom Thurmond, whose office dismissed the nominee as a “one-issue woman,” cast the lone vote against her nomination in the Senate Judiciary Committee, and she took a seat on the notoriously fractious DC court. There she became known as a consensus builder who adhered closely to precedent, wrote narrowly tailored decisions, and refused to join intemperately written opinions. A 1987 study showed that she voted more often with Republican appointees than with Democratic appointees. In Dronenburg v. Zech (1984), she voted against rehearing a case involving a sailor’s allegation that the Navy had discriminated against him by discharging him for homosexual conduct. She generally agreed with conservatives in opposing expanded regulation of corporate conduct. She insisted on the importance of not getting ahead of the law. In Women’s Equity Action League v. Cavazos (1990), she dismissed a two-decades-old suit, arguing that the litigant groups’ claim that federal agencies had failed to comply with their own anti-discrimination statutes “lacks the requisite green light from the legislative branch.”
Of the fifty-seven people she hired as law clerks, interns, or secretaries during her time on the DC bench, not one was African-American. Ginsburg was asked about this when she appeared before the Senate Judiciary Committee, and she promised, “If you confirm me for this job, my attractiveness to black candidates is going to improve.” But in her quarter century on the Supreme Court she has hired only one African-American clerk (a record that, distressingly, does not distinguish her from most of the bench). And, as both judge and Justice, she has frequently sided with conservatives on questions concerning criminal-justice reform. In Samson v. California (2006), she joined an opinion, written by Clarence Thomas, upholding warrantless searches of people on parole; in Davis v. Ayala (2015), she declined to join an opinion condemning solitary confinement.
De Hart describes Ginsburg’s thirteen years on the circuit court as something like a decontamination chamber, in which Ginsburg was rinsed and scrubbed of the hazard of her thirteen years as an advocate for women’s rights. By 1993, she had been sufficiently depolarized to be appointed to the Supreme Court.
On March 9, 1993, seven weeks after Bill Clinton’s Inauguration, Ginsburg delivered the James Madison Lecture on Constitutional Law, at New York University. She took as her subject the importance of collegiality in decision-making and moderation in style. The lecture can be read as an indictment, not just of judicial excess but of the changing character of American political discourse. She inveighed against “too frequent resort to separate opinions and the immoderate tone of statements.” Ginsburg had no use for grandstanding, or the cheeky remark, or even the snippy footnote. She offered a list of phrases used by dissenters who disparaged majority opinions by calling them “outrageous,” or “inexplicable” or “Orwellian” or a “blow against the People.” As an example of the sort of screeds she wished federal judges would stop writing, she cited a dissent that began this way: “Running headlong from the questions briefed and argued before us, my colleagues seek refuge in a theory as novel as it is questionable.”
One measure of how politics has descended into acrimony since then is that the Notorious RBG is now celebrated for just this kind of blistering, contemptuous dissent, as if spitting had become a virtue. Consider a recent Bustle [online] feature, “4 Epic Ginsburg Dissents That Prove She’s a Badass,” or the signature line of Kate McKinnon’s RBG: “That’s a Ginsburn!” In fact, there really aren’t many Ginsburns to be found in the records of the Supreme Court. Ginsburg has indeed produced forcefully written dissents, especially as the Court has moved to the right, but they are not themselves immoderate. Instead, they scold her colleagues for their immoderacy, as when, in 2013, objecting to the majority’s decision to overturn much of the 1965 Voting Rights Act, she complained, “The Court’s opinion can hardly be described as an exemplar of restrained and moderate decision making.”
Early in 1993, less than two weeks after Ginsburg delivered her Madison Lecture, Justice Byron White notified President Clinton of his intention to retire. The White House counsel, Bernard Nussbaum, gave the President a list of some forty possible nominees. No Democratic President had appointed a Supreme Court Justice since Lyndon Johnson named Thurgood Marshall, in 1967. Clinton, as in so many things, proved indecisive; he was also distracted, and still staffing his Justice Department. He conferred with senators, but relied on seventy-five (unnamed) DC lawyers for advice. He contemplated Mario Cuomo and George J. Mitchell, the Senate Majority Leader. Most Presidential selection processes—in the days before Trump’s “Survivor”-style public charades—took place secretly, and quickly. Clinton’s process was open, and interminable. The longer he took to make his decision the more interest groups were able to influence the process, not least because the White House invited them in. Over eighty-seven days and nights, Clinton asked all sorts of people their opinions. Kim Gandy, the executive vice-president of NOW, told the historian Richard Davis that her conduit to the President was the press: “We were frequently asked, ‘What do you think about Bruce Babbitt for the Supreme Court?’ and ‘What do you think about Breyer?’ ” He just couldn’t make up his mind.
Janet Reno, Clinton’s very new Attorney General, urged him to name a woman. But Ginsburg, for all that she had done to advance women’s rights during the nineteen-seventies, was apparently not on the lists sent to the White House by women’s groups. In her Madison Lecture, Ginsburg cited Roe to illustrate a crucial problem in judicial decision-making—“doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.” It would have been better, she thought, if the Court had decided Struck instead. Saying this took courage. In 1993, Operation Rescue (“If you believe abortion is murder, act like it’s murder”) was protesting outside abortion clinics. Other feminists disagreed with the reasoning behind Roe—just as some feminists today lament the tactics of the #MeToo movement—but calling Roe into question in public when abortion clinics were being bombed seemed beyond the pale. Many also found Ginsburg’s counterfactual implausible. “Coulda, woulda, shoulda,” NOW’s president, Patricia Ireland, said; pro-life activists “don’t care about the legal theory—they care about stopping abortion and controlling women’s lives.”
And so when Clinton, eager to please, entertained names proposed by women’s groups, he learned that some of them refused to support Ginsburg, because they were worried that she might be willing to overturn Roe (which is not what she had written, but one gathers that the Madison Lecture was more often invoked than read). At one point, Clinton asked Senator Daniel Patrick Moynihan to suggest a woman. “Ruth Bader Ginsburg,” Moynihan answered. “The women are against her” was the President’s reply. Moynihan called Martin Ginsburg and said, “You best take care of it.”
Ginsburg, a prominent and well-connected tax lawyer, was already running a behind-the-scenes campaign, without his wife’s knowledge. In February, 1993, he’d organized a breakfast meeting with the president of a leading women’s group in DC to seek her support for his plan to get his wife nominated as Solicitor General. He did not succeed. He had the same experience at a meeting in New York. In April and May, he courted the press and solicited at least thirty-four letters of support, largely from the legal academy, where Ginsburg, an excellent scholar, was widely admired. Fourteen members of the faculty of NYU Law School—people who had been in the room when Ginsburg delivered the Madison Lecture—wrote a joint letter to say that they were “distressed that her remarks at NYU have been misconstrued as anti-choice and anti-women.”
All spring, the Ginsburg family kept up the campaign, which involved bringing the lack of support among women’s groups out into the open, so that it could be countered. The Brookings Institution fellow Stephen Hess, a cousin of Ginsburg’s, warned reporters, including the New York Times columnist Anthony Lewis, that feminists were opposed to Ginsburg, and mailed them copies of the Madison Lecture. “I do not know Judge Ginsburg,” Lewis wrote in his column on May 10th. “I do not support or oppose her as a possible choice for the Supreme Court. I just find the knee-jerk arguments invoked against her—and against others who have been mentioned—depressing.”
Nine days later, the heads of the National Women’s Law Center, the Women’s Legal Defense Fund, and NOW’s Legal Defense and Education Fund (on whose board Ginsburg had served) sent Nussbaum a remarkable joint statement: “It has been reported that the women’s movement would oppose the nomination of Judge Ruth Bader Ginsburg to the Supreme Court. We want to be certain there is no confusion about where our organizations stand: at this stage in the process, we have not taken any position in favor or in opposition to any candidate.” It was hardly a ringing endorsement. Nussbaum faxed a copy of the letter to Marty Ginsburg, who later recalled, “I saw it as a pearl beyond price,” since it would allow him to expose and embarrass the authors. He sent copies of the letter to members of the press. Eventually, key women’s groups, which had been unwilling to oppose Ginsburg publicly, ceased opposing her privately, especially after May 29th, when Clinton hired David Gergen as a senior adviser. Women’s groups believed that Gergen was steering Clinton toward Bruce Babbitt and Stephen Breyer. “One minute there were all these female nominees,” Kim Gandy said. “And then, as soon as David Gergen gets there, suddenly all the nominees look like David Gergen.”
Summoned to the White House on Sunday, June 13th, Ginsburg met with the President for ninety minutes. He made his decision later that day, and, after watching a Chicago Bulls game that went into three overtimes, called her nearly at midnight. The Wall Street Journal posited a rule: “When Bill Clinton is doing the picking, it’s better to be last than first.” The Washington Post applauded Clinton for valuing “reputation rather than celebrity.” The next day, in the Rose Garden, Clinton announced his nomination, and Ginsburg delivered a moving acceptance speech. Her daughter had written in her high-school yearbook in 1973, under “Ambition”: “To see her mother appointed to the Supreme Court. If necessary, Jane will appoint her.” Ginsburg told the crowd, “Jane is so pleased, Mr. President, that you did it instead.”
When Ginsburg finished, Brit Hume, then at ABC News, asked a question:
The withdrawal of the Guinier nomination, sir, and your apparent focus on Judge Breyer, and your turn, late it seems, to Judge Ginsburg, may have created an impression, perhaps unfair, of a certain zig-zag quality in the decision-making process here. I wonder, sir, if you could kind of walk us through it, perhaps disabuse us of any notion we might have along those lines. Thank you.
If you watch the footage today, the question comes across as gentlemanly, even Edwardian. But Clinton turned beet red and said:
I have long since given up the thought that I could disabuse some of you of turning any substantive decision into anything but political process. How you could ask a question like that after the statement she just made is beyond me.
And then he took no more questions.
It was a month later, riding the train into the capital, that Biden was thrilled to discover no mention of Ginsburg’s nomination hearings on the front pages of the Times. She was an excellent nominee. “My approach, I believe, is neither liberal nor conservative,” Ginsburg told the committee. The Senate voted to confirm her ninety-six to three, with one abstention. But the idea that her appointment was uncontroversial is almost entirely a myth.
Few Justices have been better prepared to appear before the Senate Judiciary Committee than Ginsburg, who had made an academic study of the history of the process. As she had related in a law-review article, it was in many respects surprising that the executive would play so great a role in shaping the judiciary. At the Constitutional Convention in 1787, the Senate was initially granted the exclusive power to appoint Supreme Court Justices; that measure, proposed on June 13th, was accepted without objection. A proposal made on July 18tth for the President to name Justices and for the Senate to provide advice and consent was defeated. Only on September 7th, ten days before the final draft, did the Convention revisit this question, and adopt the proposed sharing of power.
In 1988, taking stock of two hundred years of Supreme Court nominations, Ginsburg observed that more than a hundred men and one woman had served on the Court, and the Senate had rejected twenty-eight, of whom only five had been blocked in the twentieth century. No nominee was questioned before the Senate Judiciary Committee until 1925, when Harlan Stone made a brief appearance to answer questions specifically about the Teapot Dome scandal. The next nominee to appear before the committee was Felix Frankfurter, in 1939, who announced:
While I believe that a nominee’s record should be thoroughly scrutinized by this committee, . . . I should think it not only bad taste but inconsistent with the duties of the office for which I have been nominated for me to attempt to supplement my past record by present declarations. That is all I have to say.
He relented, but largely for the purpose of denying that he was a Communist. Only since 1955 have nominees routinely appeared before the committee. All followed some version of the Frankfurter rule, placing strict limits on what they would discuss, until Robert Bork, who said, on the first day of his confirmation hearings, “I welcome this opportunity to come before the committee and answer whatever questions the members might have.” He quickly clarified that, although he said he was happy to discuss his “judicial philosophy,” he would demur on specific cases—a distinction, as Ginsburg observed, that “blurred as the questions and answers wore on,” not least because Bork, Nixon’s former Solicitor General and the last man standing after the Saturday Night Massacre in 1973, seemed delighted by the attention.
Bork’s confirmation hearings were both the last episode of the Watergate scandal and the first episode of a new and enduring scandal, the blurring of the legislative and judicial branches of the federal government. Bork’s nomination elicited paid television advertisements, as if he were running for an elected office. Since then, the distance between the judiciary and the political process has almost entirely eroded. With Merrick Garland, Senate Republicans, acting with breathtaking heedlessness, abandoned the constitutional principle that a Supreme Court nomination is meant to be insulated from public opinion, Mitch McConnell arguing that the American People, not the sitting American President, would name the next Supreme Court Justice. “I wish I could wave a magic wand and have it go back to the way it was,” Ginsburg said in September, after the first Kavanaugh hearings. Partisanship has corrupted the confirmation process. The legitimacy of the Court has declined. Women have yet to gain the equal protection of the law. And there is no wand.
In the summer of 1993, when Biden finally sidled up to his question, he was asking Ginsburg to explain the distance between her 1973 Frontiero brief and her 1993 Madison Lecture. How could she at one point say that the Court can move ahead of public opinion and at another point say that it shouldn’t? The transcript reads:
The Chairman: Can you square those for me or point out their consistency to me?
Judge Ginsburg: Yes.
The Chairman: That is a good answer. Now we will go on to the next question. [Laughter]
Biden pressed; Ginsburg evaded. “I saw my role in those days as an advocate,” she said, talking about Reed, and those stepping stones.
“Judge, I don’t mean to cut you off,” Biden said. “I am trying to square, though, your—I understand your position as an advocate. Then you became an appellate-court judge, and you gave a lecture this year called the Madison Lecture. . . .”
Biden found her charming. And she was charming, and she was smart, and she was much better prepared than he was. He could not nail her down. Ginsburg answered with a precision that was characteristic of her briefs, of her oral arguments, and of her opinions from the federal appellate court, but also with a self-control honed by decades of experience arguing with people who underestimated her.
“My time is up, Judge,” Biden eventually said, wearily. “You have been very instructive about how things have moved, but you still haven’t—and I will come back to it—squared for me the issue of whether or not the Court can or should move ahead of society.” Ginsburg offered a short sermon about reticence:
We cherish living in a democracy, and we also know that this Constitution did not create a tricameral system. Judges must be mindful of what their place is in this system and must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians.
She never answered Biden’s question. Instead, she established her own rule: the Ginsburg precedent, a rule of restraint. But there are very few rules left anymore, and even less restraint. ###
[Jill Lepore is the David Woods Kemper '41 Professor of American History at Harvard University as well as the chair of its History and Literature Program. She has been a staff writer at The New Yorker since 2005. Her most recent book will be These Truths: A History of the United States (2018). See other books by Lepore here. She earned a BA (English) from Tufts University (MA), an MA (American culture) from the University of Michigan at Ann Arbor, and a PhD (American studies) from Yale University (CT).]
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