Ginsburg Hearings Provide Some Insight Into Judge's Ideals
DURING the Senate Judiciary Committee hearings last week, Sen. William Cohen (R) of Maine managed to elicit Supreme Court nominee Ruth Bader Ginsburg's personal views on at least one subject that she had not previously expressed her views on. The federal judge divulged that she had seen "Sleepless in Seattle." She liked the movie, she said, "especially the music."
But those candid remarks were the exception, not the rule, during three days of testimony last week. For the most part, Judge Ginsburg refused to answer the Judiciary Committee's questions on subjects that she had not addressed in her writings. To do so, she said, would prejudice her ability to decide cases fairly once she gets on the high court.
When Judiciary Committee members tried to gauge her views on issues ranging from school vouchers to gun control to homosexual rights, Ginsburg deftly ducked the questions by lecturing the senators about legal precedents.
Sen. Orrin Hatch (R) of Utah repeatedly tried to ascertain whether she agreed with retired Justice William Brennan that the death penalty violated the Eighth Amendment's ban on "cruel and unusual punishment." Ginsburg didn't take the bait. All she would say was that Supreme Court precedents favor the death penalty and "I am well aware of the precedent."
That prompted Senator Hatch to snap: "It appears that your willingness to discuss the established principles of constitutional law may depend somewhat on whether your answer might solicit a favorable response from the committee."
But Ginsburg's nonresponsiveness did not hurt her. As Sen. Arlen Specter (R) of Pennsylvania noted, "nominees answer about as many questions as they have to for confirmation." And with Ginsburg's confirmation virtually ensured from the outset, she didn't have to take a stand on many hot-button topics.
THE hearings did elucidate Ginsburg's views on other subjects. The judge stated:
* She favors a right to abortion and the Equal Rights Amendment. The right, she stressed, should be grounded in a constitutional right to privacy and in the 14th Amendment's "equal protection" clause. Her statement no doubt pleased some advocates who were concerned about her criticism of Roe v. Wade, which established abortion rights based on privacy.
* She backs the high wall the Supreme Court has erected between church and state. That wall's foundation is the 1971 case Lemon v. Kurtzman, which has been strongly criticized by Justice Antonin Scalia and other conservative members of the high court. Ginsburg chided Justice Scalia, in particular, saying: "It's very easy to criticize. It's not so easy to offer an alternative." This could be the area where Ginsburg has the greatest impact on the Supreme Court, since the justice she will replace, Byron Whi te, was a leading critic of the Lemon decision.
* She believes that courts should look to the legislative history of statutes that are in dispute. Scalia takes the opposite approach, arguing that judges should confine their analysis to a reading of the law's text. Referring to Scalia, she said, "I think we will continue to have that interesting difference of view."
On perhaps the biggest question confronting Ginsburg - her judicial philosophy - her responses were mixed. Senators were eager to find out whether her tenure on the high court will be characterized by her liberal advocacy of the 1970s or by her centrist judging on the federal appellate court in the 1980s. "I am a judge. I'm not an advocate," she said. Courts, she added, should respect precedent and not try to get too far ahead of society's wishes. But she also said that there are times - such as the 1954
Brown v. Board of Education ruling that outlawed segregated schooling - when the court must be at the forefront of change.
The Judiciary Committee will probably vote later this week. The full Senate is expected to take up the nomination before it recesses on Aug. 6. Few, if any, "nay" votes are expected.