Viewing Ginsburg From Death Row

SEN. Orrin Hatch was getting frustrated. "It's an easy question, judge," the Utah Republican kept insisting to Ruth Bader Ginsburg in her confirmation hearings before the Senate Judiciary Committee last month.

But whether she found it easy or not, President Clinton's nominee to the Supreme Court juke-stepped around Mr. Hatch's query. Judge Ginsburg wouldn't state flat out that the Constitution's explicit references to capital crimes presuppose the legitimacy of capital punishment.

In refusing to reject the argument - often made by former Justices William Brennan and Thurgood Marshall - that the death penalty is "cruel and unusual punishment" prohibited by the Eighth Amendment, was Ginsburg deliberately leaving open a door for future rulings? Or was she just exercising the caution that characterized most of her testimony?

Opponents of the death penalty aren't grasping at straws. In the absence of any paper trail regarding Ginsburg's views on capital punishment, divining those views "is like reading tea leaves," says George Kendall, assistant director of the Capital Punishment Project at the NAACP Legal Defense Fund in New York City.

Still, the men and women who devote all or much of their careers to fighting capital punishment say they're hopeful that Ginsburg will be a positive addition to the high court for their crusade. After all, the nominee has a reputation as a moderate liberal. "My guess is that if Ginsburg were a state legislator, she would vote against capital punishment," says Vivian Berger, vice dean at Columbia Law School in New York and an anti-death-penalty activist who knows the judge.

Neither Mr. Kendall nor Dean Berger anticipates that, as a Supreme Court justice, Ginsburg will adopt the Brennan-Marshall view that capital punishment is unconstitutional per se. They say that Ginsburg, as she implicitly acknowledged to Hatch, is likely to follow high-court precedents that reject such a position.

But they expect - or at least hope - that Ginsburg will be receptive to arguments that the penalty is unconstitutional as applied to, for example, certain juveniles, mentally retarded people, or recipients of racially tainted verdicts.

Berger and Kendall hang some of their hopes on the possibility that Ginsburg will adopt an expansive attitude toward the notion - now well embedded in Eighth Amendment analysis - that some applications of the death penalty "offend evolving standards of decency." In determining how Americans' standards of decency are evolving as to such practices as executing mentally disabled people, Kendall says, Ginsburg may be willing to look at a wider array of evidence than conservative justices like Antonin Scalia or Clarence Thomas are.

Berger also notes that Ginsburg, during her tenure as a federal appeals-court judge in Washington, generally has voted to widen access to the federal courts. So she might resist the Supreme Court's trend in recent years to limit habeas corpus appeals by people on death row. (Habeas corpus is the procedure by which prisoners appeal state-court convictions to federal courts on constitutional grounds.)

Lawyers battling against the death penalty "out in the trenches," as Berger puts it, probably haven't had much time to ponder the Ginsburg nomination. But they will welcome any enlightenment she can bring to the high court on capital punishment.

Bryan Stevenson, director of the Alabama Capital Representation Resource Center in Montgomery, and five other lawyers scramble to represent 120 Alabama death-row inmates in their post-conviction appeals. The scarcity of resources available to defend capital cases for poor people in Alabama is typical of conditions throughout much of the United States.

And as to the state of the law, Mr. Stevenson says, "The administration of capital punishment [in the US] hasn't improved since 1976," the year the Supreme Court reinstated the death penalty. According to Stevenson, racial bias is still rife in capital sentencing and jury selection, and - as several recent cases have underscored - there are too few safeguards against the conviction and execution of innocent people.

Kendall, Berger, and Stevenson were among some 200 lawyers who met in Warrenton, Va., last weekend for an annual conference of death-penalty opponents. You can be sure that their agenda included some attempts to read the Ginsburg tea leaves.