Feminist Pioneer No Longer at Cutting Edge

SUPREME COURT NOMINEE

DEBORAH MERRITT, who was in Ruth Bader Ginsburg's first set of clerks as a federal judge, is now a full professor of law at the University of Illinois - the kind of opportunity that Judge Ginsburg helped open to women as a lawyer in the 1970s.

But she says that Judge Ginsburg is just as proud that Ms. Merritt's husband, a former law professor and now a country musician, takes an equal share of child-care responsibility.

The ideal that President Clinton's first Supreme Court nominee has always held out is of extending the same expanded choices and opportunities to men and women. In the 1970s, these ideals put Ms. Ginsburg in the vanguard of the women's movement, battling in court for equal treatment of the sexes under the law.

No longer. Ginsburg's ideals have not changed, but feminists have moved in other directions, many of them looking askance at the formal equality that Ginsburg sought. "She's a liberal, which by the vanguard's standard is very conservative," says Mary Becker, a law professor at the University of Chicago.

Today, in contrast to when she took her first antidiscrimination case in 1971, "she [Ginsburg] probably represents the feminism of most women in America," says Christine Sommers, who is writing a book on the impact of feminism on American culture. Women's views change

In 1970, 40 percent of women favored efforts to improve women's status, according to a Roper survey. In 1990, with women much advanced at school and work, 77 percent favor such efforts.

Ginsburg encountered blatant discrimination that women seldom see today. A dean at Harvard law school in 1956 hosted a dinner for the nine women in Ginsburg's entering class of over 500 and asked them each to justify why they occupied a place that could be held by a man.

After law school, law firms and judges announced candidly, she recalled in a 1989 speech, "women not wanted here."

The notion that men and women had separate spheres - women at home, men in the outside world - still had a foothold in law.

As recently as 1961, a unanimous Supreme Court decision held that women could be barred from jury service in recognition of women's place at "the center of home and family life."

In the Ginsburg home, the division of labor was less traditional. It was early on established that Martin Ginsburg, Ruth's husband, would do the cooking. Mr. Ginsburg is a leading tax lawyer.

In 1971, as a law professor at Rutgers University, she began a Women's Rights Project within the American Civil Liberties Union.

Her battle against the notion of separate spheres for men and women is comparable to Thurgood Marshall's legal war against Jim Crow laws that treated races differently, although she argued far fewer and less earth-shaking cases.

The laws and practices she sought to overturn were often intended to protect women, and she sometimes used cases where she could represent men as plaintiffs to overturn discriminatory laws. For example, she established that Social Security survivors benefits should go to widowers as well as widows.

Many feminists have grown increasingly critical of this kind of formal equality over the years. By ignoring the differences between men and women, such as that only women get pregnant, formal equality leaves most women at a disadvantage in a man's world, according to this view. Not all women benefit

Elite women may prosper, such as the women who make up nearly 50 percent of law school enrollments. But under same-treatment equality, society "lost protections very important to ordinary women," says Professor Becker. For example, although it was not a Ginsburg case, women lost their status as preferred custodians of small children.

Many feminists are willing to accept sex-based rules if they help empower women. Many see their goal not in allowing women to have the choices men have, but to give greater value to the roles women often seek, such as child-rearing.

Ginsburg has offered the Family and Medical Leave law as a middle-ground model, a law motivated by the needs of pregnant working women for time off but that applies to men and other family needs as well.

She is nearly always described as a judge who takes a "nuanced" view of cases, meaning she makes fine distinctions and decides cases narrowly, without broad sweep in her decisions. Barbara Flagg, a former clerk of Judge Ginsburg, says that Ginsburg has a deep commitment to a disciplined, narrowly focused role for the judiciary.

This judicial conservatism is a basis of her criticism of the 1973 Roe v. Wade decision that used privacy rights to strike down anti-abortion laws. She would have preferred a less sweeping ruling based on women's right to control their own destinies, she said in a March speech.

How Ginsburg views various restrictions on abortion is not clear, but she says that the Roe decision walked out on a limb "too swiftly shaped," which proved "unstable."

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