Constitutional Opinions / Mainstream Radical

...While Ginsburg can be expected in nonconstitutional cases to be a judicial moderate, even at times a conservative, in constitutional cases raising equality issues she probably will cast votes that extend and consolidate the court's egalitarian agenda...

...In speeches and articles, Ginsburg had criticized on equal protection grounds the rulings that upheld bans on the use of public funds to pay for poor women's abortions—a position she was barely quizzed on during her confirmation hearings...

...In those days, the viability of Roe had not yet jelled as an issue, and Stevens wasn't asked to declare his views...

...But by the late 1970s the pro-life movement was a force to be reckoned with, and it was able to influence the politics of judicial selection after Ronald Reagan's election...

...In Hatch's view, the important thing was that she had refused opportunities "to legislate from the bench...

...The political and legal landscape thus having changed, Ginsburg's position on abortion, while radical compared to that taken by previous appointees, now seemed unexceptionable...

...It will take a mighty electoral shift to turn the tide...

...In another case, Ginsburg joined Reagan appointees Robert Bork and Antonin Scalia in declining to agree with a gay sailor's constitutional challenge to the military's ban on homosexuals...

...That made it easier for her to attract the Terry Eastland is editor of Forbes Media Critic and a fellow at the Ethics and Public Policy Center...

...Only if she thinks such a vote might undermine the goal of equality by causing division in the nation will she decline to cast it, in which case she would await the case in which she could do so with fewer ill effects...

...Orrin Hatch undertook to explain why he admired five of the opinions Ginsburg had written during her thirteen years on the U.S...

...Although Reagan appointees Sandra Day O'Connor and Anthony Kennedy and Bush appointee David Souter declared last year that abortion is a constitutional right, none of them had ever said as much before their elevation to the high court, whether in a speech, law review article, judicial opinion, or Senate testimony...

...Circuit was bound by a Supreme Court ruling in conflict with the sailor's argument that the right of privacy should be extended to protect homosexuality...

...Although as a judge she criticized Roe in speeches, causing some liberal angst, she made clear during her confirmation hearings that her difficulties with Roe were merely prudential, not doctrinal...

...Ginsburg could cast the vote that overrules the court's abortion-funding cases, or the vote that declares homosexuality a protected constitutional right, thus overruling Bowers v. Hardwick, the 1986 decision in which the court, by a 5-4 vote, declined to invalidate a Georgia statute criminalizing homosexual sodomy...

...G insburg's radicalism was obscured in press accounts that described her as a judicial moderate...

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...Ginsburg is the first justice ever to have taken this position prior to appointment...

...support of conservatives like Hatch, who found her an infinitely better choice than someone like Interior Secretary Bruce Babbitt...

...W hat should not escape notice, however, is the real significance of Ginsburg's appointment...

...In all five of these cases (of the remaining two, one involved immigration, the other labor), Hatch found that Ginsburg had demonstrated a willingness to follow the law, "even though you might personally have preferred different results as a matter of policy...

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...She believes in judicial restraint only as a means of achieving equality...

...This fact, she said, was "the formidable historical impediment to judicial declaration of the legal equality of men and women...

...Ginsburg argued that position as an advocate in the 1970s, even while recognizing that, as she once put it, "the framers of the 14th Amendment did not contemplate sex equality...

...For notwithstanding her demonstrations of judicial restraint, she has taken her seat on the court as the most jurisprudentially radical appointee in living memory...

...Note that I do not say she is the most radical justice—time will tell on that—only that she is the most radical jurist at the time of her appointment to the court, if the positions she has taken in her legal career are any indication...

...for Ginsburg, it was up to Congress, not the courts, to authorize such litigation...

...G insburg's radicalism caused hardly a ripple inside the Senate...

...And meanwhile there had been last year's Planned Parenthood v. Casey, in which O'Connor, Kennedy, and Souter not only declined to overrule Roe and its privacy rationale but also affirmed in no uncertain terms its "central holding...

...While Ginsburg was asked during the hearings to empathize with people on the lower rungs of the socio-economic ladder, at no point was she asked to be sensitive to the views of those who believe—as the criminal law used to teach—that abortion is homicide...

...The Democratic Senate was determined in the wake of the last confirmation—Clafence Thomas's—to insist that the next nominee affirm a pro–abortion rights position...

...That fact, too, had also helped motivate her in the 1970s to support the Equal Rights Amendment, which she said in her confirmation hearings was still needed, if only for symbolic reasons...

...Bill Clinton promised a Supreme Court justice who believed the Constitution includes a right to abortion...

...Nor had any previous nominee taken issue with the court's abortion-funding decisions...

...For Hatch, the ability of a judge to separate his personal views from the task of interpreting the law is "an essential qualification" for the Supreme Court...

...This, too, is a first...

...While there can be no question that Ginsburg's tenure on the Court of Appeals moderated her work as a judge—she has said so herself—there should also be no doubt about where her jurisprudence is anchored...

...Ginsburg is committed to the egalitarian doctrines that have crept into modern constitutional law...

...The judge won high praise for her intellect, experience, and integrity, and her low-key manner made her easy to like...

...Any policies that treated the sexes differently could thus be ruled unconstitutional unless they were justified by reference to a "compelling governmental interest...

...Even though the court has not formally adopted the "strict scrutiny" standard in reviewing sex discrimination claims, it has come close...

...The politics of judicial selection have been, to coin an appropriately awkward term, Ginsburged...

...please print Address: City: State: Zip: BV1 L The American Spectator November 1993 67...

...The justice she replaced, Byron White, dissented in Roe and wrote the court's opinion in Hardwick...

...Ginsburg not only gave unequivocal support to the privacy rationale em66 The American Spectator November 1993 braced in Roe, but also reiterated her view that the right to abortion is protected by the Constitution's equal-protection guarantees...

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...He's right, and in these cases and some others, Ruth Bader Ginsburg certainly had demonstrated this virtue...

...Court of Appeals for the District of Columbia Circuit...

...Reagan, and then George Bush, sought justices (and judges) who were Roe agnostics, i.e., jurists who—whatever their personal or policy views—did not believe the Constitution could plausibly be read to include a right to abortion...

...No senator queried Ginsburg on her characterization of Roe as a case "affirming the right of the individual to be free"—as though thatwere the only moral aspect of the debate...

...The reasons are apparent...

...No previous appointee had said the ERA should be added to the Constitution...

...If Republicans recapture the presidency in 1996 but the Senate remains in Democratic hands, the latter will demand of high court nominees that they swear to Roe and much of the other jurisprudence that Ginsburg has been the first appointee to affirm...

...r The American Spectator -I P.O...

...As a Supreme Courtjustice, it bears noting, Ginsburg will .no longer be-bound by the decisions of any higher court...

...for Ginsburg (as for Bork and Scalia), the D.C...

...What's more, that advice was incomplete, for the most important variable in the confirmation equation is same-party control of the presidency and the Senate...

...As for her views of the equal protection clause and the ERA, these would have been controversial, as one senator observed, only if Ginsburg had been a late-1970s nominee...

...And she is likely to push for the court's adoption of the strict-scrutiny standard in sex-discrimination cases...

...The most important fact in Ginsburg's pre-appointment record is her unequivocal affirmation that there is a right to abortion that the Constitution must protect...

...In two of them Ginsburg refused to create a cause of action for liberal litigants (civil rights groups in one case, homeless persons and disabled rights groups in the other) who were trying to sue the government for alleged nonenforcement of civil rights and other laws...

...In the end, only three senators (Republicans Jesse Helms, Don Nickles, and Robert Smith) voted against her—so quietly as to escape notice...

...Ginsburg also has arrived at the court as the first appointee ever to maintain, in equal protection cases, that gender classifications should be subject to the same level of scrutiny as racial ones...

...That she does not seem radical—even to conservatives like Hatch—is a measureof how far the legal and political culture has shifted to the left...

...Ginsburg has altered the pattern...

...It was, of course, in the 1973 case of Roe v. Wade that the court, by a vote of 7-2, declared abortion a constitutional right, but until Ginsburg not a single nominee to the court had embraced its controversial conclusion—not even Ford appointee John Paul Stevens, a consistent pro–abortion rights vote since his confirmation in 1975...

...Conservatives will rue the day they began telling liberals that if they want to influence appointments to the court, they should first win back the presidency...

...Bear in mind that Democratic control of the Senate from 1986 through 1992 prevented the appointment of more committed exponents of originalism and judicial restraint, thus halting the Republican effort to put the court back under the Constitution...

...Meanwhile, support for the ERA, which failed of ratification more than a decade ago, was not going to light any fires of opposition in a Senate intimidated by accusations of insensitivity to women...