· CHAPTER 15 ·
The 107th Justice
Given the opportunity to make the first nomination to the Court by a Democratic president since 1967, when Lyndon Johnson named Thurgood Marshall, Bill Clinton told aides he wanted to hit a “home run” with his nominee—a person to whom people would respond with “Wow.” But the process of filling Justice Byron White’s seat bore all the marks of the initial White House disarray, presidential indecision, and Republican-imposed constraints that marked the administration’s first year in office. Nevertheless, when Clinton strode to the lectern in the Rose Garden that bright June day in 1993, accompanied by a small woman in a cobalt-blue suit and large sunglasses, he had a winner.
Introducing his nominee as a pathbreaking attorney, advocate, and judge, he described Ruth Bader Ginsburg as “one of our nation’s best judges, progressive in outlook, wise in judgment, balanced and fair in her opinions.” Hailing her pioneering advocacy on behalf of gender equality, he predicted that she would be “an able and effective” architect for consensus building on the Supreme Court, just as she had been on the court of appeals. “In the months and years ahead, the country will have the opportunity to get to know much more about Ruth Ginsburg’s achievements, decency, humanity and fairness.” Then he added in closing, “Ruth Bader Ginsburg cannot be called a liberal or a conservative. She has proved herself too thoughtful for such labels.”
Feeling the power of Ginsburg’s moving acceptance speech moment, a senior official thought to himself, this is not one of those statements that falls into the category of “Rose Garden Rubbish.” Later that day, Clinton dashed off a note to his nominee: “You were terrific today—the American people who saw you must have been as moved by your statement as all of us were….I’m glad my wife met your granddaughter and I wish I had met your mother.”
President Clinton as Ginsburg accepts her nomination to the Supreme Court, June 14, 1993.
Meanwhile, the press had its opening. ABC News’s Brit Hume asked if Clinton might disabuse the public of what seemed like a “certain zigzag quality in the decision-making process.” The president angrily retorted, “How you could ask a question like that after the statement she just made is beyond me.” As he turned his back on Hume and walked Ginsburg back to the White House, George Stephanopoulos, the president’s young director of communications, thought, “Brit just didn’t know how right he was.” Editors of The New Republic chose to focus not on the process but on the outcome. “Clinton deserves unstinting credit,” they exulted.
When he first learned of Justice White’s resignation on March 19, the president began his search for a highly qualified political figure with real-world experience and a “big heart.” Under the direction of James Hamilton, who had handled the vetting for cabinet members, an outside team of seventy-five lawyers began collecting information. The president had turned first to the brilliant orator and three-term New York governor Mario Cuomo, who had been at the cutting edge of the Democratic Party. But Cuomo’s indecisiveness kept the White House dangling until the governor finally declined. George Mitchell, the respected Senate majority leader and a former federal district judge from Maine, also quickly declined. So did Richard Riley, the former governor of South Carolina and Clinton’s secretary of education, who frankly acknowledged that as a “mediocre country lawyer” he was not up to the job. But Secretary of the Interior Bruce Babbitt, the former governor of Arizona, was still a possibility, as were several federal judges.
By early June, the list had narrowed to a few names: Babbitt and three federal judges. Clinton first considered and then rejected his good friend the distinguished judge Richard Arnold of the Eighth Circuit. The nomination of another Arkansan, Clinton feared, would set off charges of “cronyism.” He then focused on Babbitt, only to have fellow Democrats in Congress as well as environmentalists vigorously lobby to keep the secretary of the interior in his current position. Political aides agreed. The president needed a strong supporter in the red states of the intermountain West. Also, Orrin Hatch, the ranking Republican on the Senate Judiciary Committee, indicated that Babbitt would have a hard time getting confirmed, having angered senators from western states with his environmental program. Knowing that any political figure would generate opposition from Judge Robert Bork’s New Right Judicial Selection Monitoring Project, set up to screen Clinton’s judicial nominations, the president turned next to two federal judges: Stephen Breyer and Ginsburg.
Breyer, a genial pragmatist who served as chief judge of the First Circuit in Boston, had the strong endorsement of Senator Edward Kennedy. A specialist in administrative law, he had extensive experience on Senate committees during the Watergate prosecution and, more recently, as chief counsel to the Judiciary Committee, which earned him a thumbs-up from Hatch. On Thursday, June 10, members of the White House counsel’s office flew up to Boston for intensive vetting. Clinton summoned him to the White House for an interview, but not to go over specific cases Breyer had decided. Rather, Clinton wanted to get a better sense of Breyer’s judicial philosophy and outlook and how he might bring together a divided Court.
Breyer, who regularly biked from his home in Cambridge to his office in Boston, had an accident requiring Thursday’s initial vetting to take place in the hospital. The discomfort of a punctured lung and broken ribs, compounded by a subsequent long, jarring train ride to Washington the next day, put him off his game during his private lunch with the president. In addition, an earlier background check had revealed that Breyer had neglected to pay Social Security taxes for an elderly housekeeper. The White House conveyed that information to key members of the Judiciary Committee, who reported that the lapse should not preclude his nomination. But coming so soon after the “nanny” problems that had derailed Clinton’s first two nominees for attorney general, Zoë Baird and Kimba Wood, White House aides were eager to avoid appearing to apply a double standard. For all of Breyer’s impressive credentials, the two men were “not on the same wave-length,” Clinton told aides on Friday night. The discussion turned to Ginsburg.
The White House staff, hoping for a younger justice who might outlast Clarence Thomas, viewed the sixty-year-old Ginsburg as an unlikely candidate. Some of her associates, familiar with her avoidance of small talk, acknowledged that she could seem “remote and bookish,” which did not augur well for her ability to bring other justices around to her position. Despite reservations about Ginsburg’s personality that had surfaced early, there was no denying that her opinions were passionate and principled. Joel Klein in the White House counsel’s office had distilled exhaustive research on Ginsburg into a nine-page, single-spaced personal and legal profile ten days earlier. Ginsburg’s judicial philosophy, wrote Klein, “appears to be an unusual synthesis of the experiences that have shaped her life: her background as a pioneering woman lawyer and advocate for gender equality, as an academic proceduralist, and as a thoughtful federal appellate judge. Despite a deserved reputation for rigor and caution—as opposed to judicial ‘activism,’ ” Klein continued, “Ginsburg’s approach to cases is fundamentally pragmatic, displaying little enthusiasm for rigid, abstract rules as theories.”
In his concluding analysis, he described the judge as “an accomplished advocate, respected scholar and eminent jurist, highly esteemed for her forceful mind and dedication to the law.” Her campaign of court challenges in the 1970s “left a lasting imprint on legal doctrine and American society. It may be a reflection of how far we have come,” he acknowledged, “that these triumphs seem taken for granted today,” noting criticism of Ginsburg by women’s groups for her critique of Roe. In the 1980s and 1990s, he continued, “Ginsburg’s sense of fairness and meticulous attention to the case at the bar have made her an influential respected ‘swing vote’ on the D.C. Circuit. In constitutional adjudications, Ginsburg has advocated a cautious role for federal judiciary, but one which does not lose sight of the circumstances in which litigation has arisen.”
The reservations about Roe v. Wade articulated in her 1992 Madison Lecture and her vote against rehearing the Dronenburg case, Klein acknowledged, would likely be negatives for women’s groups and gay rights activists, who wanted the president to nominate a strong champion of Roe and privacy rights. But her nomination would bring “needed religious and gender diversity to the Court” and “would be perceived in many quarters as a departure from the use of ideology as the primary consideration in Supreme Court nominees.” As a consensus builder, she would “likely bring to the Court the rigor and intellectual energy necessary to persuade the Court’s decisive center.”
Two unsolicited documents arriving that day from Senator Patrick Moynihan impressed the president. They were already in the pile of material on Ginsburg, but Moynihan wanted to make certain that Clinton read them that day. The first was a strong letter on her behalf from Michael Sovern, who had become president of Columbia University, to Moynihan. Attached was a separate note from Sovern to the senator that said, “Pat, She’s the real thing.” The other was a copy of a speech that the former solicitor general Erwin Griswold had made to the Supreme Court in 1985 on the fiftieth anniversary of the building in which he singled out three advocates for their contribution to changing the law: the NAACP’s Charles Houston and Thurgood Marshall and the ACLU’s Ruth Bader Ginsburg. As the decision came down to the wire, Klein summed up the view of the White House counsel’s office: “Judge Ginsburg’s work has more of the humanity that the President highly values and fewer of the negative aspects that will cause concern among some constituencies.” On the evening of Saturday, June 12, with Breyer still in town, Ginsburg—in Vermont for a wedding—received a summons to the White House.
Returning from Vermont in casual clothing, she was reluctant to meet the president without changing. The White House counsel, Bernard Nussbaum, told her not to worry: Clinton would also be dressed informally because he was returning from the golf course. On this particular Sunday, however, the president had opted to attend church instead. Ginsburg was taken aback as Clinton approached her in his “Sunday best” navy-blue suit, shirt, and tie.
Despite this perceived faux pas, the potential nominee turned a thirty-minute interview with Clinton into a winning ninety-minute conversation. We discussed “anything and everything,” Ginsburg explained afterward. “Sometimes there’s just a chemistry between two people, and I liked him very much. I talked about my childhood, my teaching constitutional law, women’s rights litigation.” Clinton, having done his homework, asked in turn about a variety of cases—a couple in business law, some of the ACLU cases she had litigated, and a dissent in which she supported the right of Jewish military officers to wear yarmulkes while on duty. “I just wanted to hear her talk,” he explained, in order to get a feel for her thinking. What struck him especially was how interwoven her earlier life experience was with her work and the difference she had made in people’s lives in those ACLU years—and how self-effacing she was. “Tremendously impressed,” Clinton said of his reaction to his nominee. A resolutely principled individual, he concluded, she had sterling credentials, a brilliant mind, and the empathy for ordinary folk that he so valued—“someone who viewed government in terms of the way it impacted people’s lives.”
Clinton knew she would also have the approval of key Republican players—an imperative for an ambitious yet realistic young president elected with only 43 percent of the popular vote and with a health-care bill he wanted to pass. In November 1991, The American Lawyer had named Ginsburg one of the nation’s leading centrist judges. Indeed, her record on regulatory issues on the D.C. Court indicated that she had sided more often with Republican-nominated fellow judges than with her Democratic colleagues. True to her training in legal process, she was considered “a paragon of judicial restraint.” That is, someone who tended to resolve cases on narrow procedural grounds, preferring small incremental steps to bold assertions of judicial power in order to preserve the legitimacy of the outcome. Judicial minimalism, Clinton knew, was then considered to be the best defensive strategy at the time for putting a brake on the conservative activists on the Court who were vigorously striking down progressive legislation. Further, minimalism encouraged justices to focus on the particularities of the case at hand rather than make sweeping pronouncements that get too far ahead of elected branches of government and the public in making law.
Some liberals, Clinton rightly anticipated, would be deeply disappointed that his nominee was no Marshall or Brennan. As a graduate of Yale Law School, he understood their dismay at the conservative legal movement’s considerable efforts to dislodge legal liberalism. He also shared their concern about the erosion of the Court’s commitment to civil rights and civil liberties. Yet he was confident that he had made a superb choice. Ginsburg’s reputation as a centrist with a liberal bent and her emphasis on collegial decision making squared with the president’s own inclination for accommodation and a place at the ideological center. She would decide cases on their merits, he believed, work with conservatives when possible, and “stand up to them when necessary.”
Clinton conveyed his decision to Bernard Nussbaum, Joel Klein, and other key participants in the White House counsel’s office late Sunday afternoon. After attending a barbecue for members of the press corps and watching the NBA game between the Chicago Bulls and the Phoenix Suns go into three overtimes, he dialed Ginsburg from the White House kitchen at 11:30. A bad connection through the White House operator forced the president to ask her to hang up. He dialed the number himself from his residence. “If I’m going to propose, we might as well have a good line. I am going to ask you to accept this position tomorrow. I feel good about this.” A stunned Ginsburg, thinking of their earlier conversation, responded, “Oh, there is so much I wanted to say. I felt I didn’t say anything.” Clinton reassured her: “You did fine. Just speak from your heart and mind tomorrow.” Around midnight the president called Breyer, telling him he expected him to be a major contender for the next seat on the Court, and chatted with Babbitt. Next, he phoned key senators: Mitchell, Joseph Biden, Hatch, Kennedy, and Moynihan, and tried to reach Bob Dole.
On Sunday morning, a White House aide had arrived at the Ginsburgs’ Watergate apartment. But before the vetting team could begin its work, Marty served them a Tuscan lunch of cannellini beans, canned tuna fish, and lemon juice. Only after did the accountants from the administration make their way upstairs with Marty to go over his meticulously assembled tax records, documenting the couple’s net worth at between $3.2 and $6.7 million. They also made sure that undocumented household help had not been hired and that the housekeeper’s Social Security taxes had been fully paid. Downstairs in the living room, Nussbaum and Ginsburg went over personal and legal matters. Having vetted more than a hundred judges in his career, the associate White House counsel Ron Klain claimed he had never met anyone who was as well prepared as the Ginsburgs. “Marty had everything,” Klain said. But, in fact, it was Ruth who handled the family financial information.
Meanwhile, The New York Times had already arrived with the announcement of the nomination in banner headlines. The Times described the nomination as a “surprise selection,” noting that the president’s decision had “stunned lawyers and jurists, and even many Administration officials” who had anticipated two days earlier that Breyer would get the nod. The New York Post trumpeted, “Pat Was Key to Top-Court Pick,” and that a Brooklyn girl had won, also reporting the next day that Ginsburg and Moynihan had chatted about the Brooklyn Dodgers.
In her quest for the nomination, Ginsburg also had more than a little help from a devoted spouse. Though Justices White and Blackmun were known to be thinking about retiring at the time of Clinton’s election, a potential nominee could not be perceived as promoting herself for White’s seat. To do so openly would have been seen as a breach of decorum. Members of the federal bench—and certainly the Court—like to maintain the public fiction that their nominations occur devoid of any campaigning. So Marty had quietly taken the initiative, realizing that he would have to act quickly. He knew that federal judges lacked the visibility of politicians like Cuomo and Babbitt. More important, he recognized that a nomination to the high court does not occur without behind-the-scenes efforts from supporters.
The place to start, he decided, was with his wife’s natural constituency—the women’s movement organizations that had spearheaded her nomination to the D.C. Circuit. Arranging a meeting with the heads of prominent feminist organizations, he found that his trial balloon sank like a stone. Marty attributed the palpable lack of enthusiasm to a ruling in which Ruth had participated three years earlier that rejected a case brought by the Women’s Equity Action League, an organization that lobbied for educational opportunities for minority groups. Ginsburg had served as a member of WEAL’s advisory board for four years, and the decision on the case seemed to WEAL loyalists at odds with her prior commitment to the organization. But the problem involved more than the WEAL case, more even than a much earlier case involving a sailor who challenged the military’s prohibition on homosexual conduct.
The outcry from pro-choice circles following her Madison Lecture at New York University two years earlier had not helped. Taking issue with grounding the right to abortion in privacy rather than equality once again, Ginsburg had also questioned the sweep of Roe v. Wade, arguing that the law is best changed in “measured motions” rather than in “doctrinal limbs too swiftly shaped” (and hence unstable). Had the Court simply ruled on the more extreme Texas law at issue, giving the states more time to liberalize their laws, some of the discord, she suggested, might have been averted.
As insight into the judicial thinking of a potential nominee, the lecture hit the mark. As a comment on backlash to Roe, the aim was off. The legal historian David Garrow pointed out that Catholic-led backlash against abortion law reform predated Roe and that the movement for reform in the states had faltered by the time Roe and Doe reached the Court. Moreover, the influx of evangelical Protestants into the antiabortion movement had not occurred until almost twenty years later. (Even President Clinton would make a point of distancing himself from Ginsburg’s backlash analysis while emphasizing her very strong commitment to reproductive rights.)
Yet the prior rulings Marty believed to be problematic, even when compounded with the prolonged fallout from the Madison Lecture among pro-choice leaders, were insufficient to explain the negative response to his initial foray with leaders of feminist organizations. What he might not have fully appreciated is the change that had occurred within feminist circles in the fifteen years since his wife first initiated her move to the bench.
As the feminist legal community—like the larger women’s movement—fractured in the late 1970s, the unity of strategy and tactics that Ginsburg had struggled so hard to maintain dissolved. Divisions quickly emerged among feminist legal practitioners over whether pregnancy could be accommodated within an equality framework or whether it required special treatment. Equality feminists predominated in drafting the bill that became the 1978 Pregnancy Discrimination Act. But by 1987, the two sides were pitted against each other in oral arguments over a California law mandating maternity leave for women, California Federal Savings and Loan Association v. Guerra. Equality feminists argued leave should be extended to men in the form of paternity leave.
In the legal academy where activism and scholarship intertwined, a new generation of feminist scholars critiqued its predecessors in much the same way that daughters often end up criticizing their mothers, but with an ideological twist. Focusing on the limitations of equality legal theory, more perceptive critics acknowledged the significant constraints Ginsburg had faced and the considerable tactical skill she displayed in dealing with them. But others were less charitable, glossing over distinctions between Ginsburg’s vision of equality and that of the Court. Characterizing her litigation as assimilationist in outlook, insistent on formal equality, and inadequate for accomplishing the legal changes that would benefit most women, many of these “daughters” in academe claimed that equality advocates opened doors only for those with the resources sufficient to play by men’s rules. They also faulted Ginsburg’s use of male plaintiffs and her focus on classifications that could be characterized as burdening both men and women.
In the 1980s, during Ginsburg’s years as judge, the search for new perspectives rapidly accelerated. For some legal theorists, the psychologist Carol Gilligan’s relational theory offered promise. In her influential study of adolescents’ moral development, Gilligan had highlighted women’s capacity for nurture, empathy, and preservation of relationships. Accordingly, cultural feminists scrutinized aspects of the legal system that reflected male values and priorities. Few went as far as Robin West, who claimed that modern legal theory was “essentially and irretrievably masculine” in its valorizing of freedom and autonomy and devaluation of connectedness. West’s critics were quick to point out the biological essentialism underlying her claim. But while cultural feminism came perilously close to resurrecting the old Victorian ideology of separate male and female spheres with its gender-distinctive attributes against which Ginsburg had fought, others critiqued equality feminism on different grounds.
Catharine A. MacKinnon, whose book Sexual Harassment of Working Women (1979) gave legal content to the concept of sexual harassment as sex discrimination, which the courts could accept, offered a systemic explanation of women’s legal status originating in sexuality and male dominance. Her clear, compelling elaboration of substantive equality in the context of male hierarchy offered new ways to understand the prevalence of sexual violence and the persistence of women’s subordination, as well as the inadequacy of equality remedies for gender discrimination. Legal understanding of equality, MacKinnon pointed out, means treating like persons alike and according the right to demand equal treatment only to similarly situated persons. Women, therefore, have no claim to equality in contexts where for reasons of biology or social fact they are not “the same” as men. The focus of the court, she argued, should not be on whether differential legal treatment is based on real (as opposed to stereotypical) differences between the sexes. Rather, it should be on whether the law perpetuates the subordination of women (a concept that Ginsburg had advanced in 1971 in Struck).
MacKinnon also offered a highly influential critique of formal equality and other liberal mainstays like privacy and consent, which failed to protect women from sexual violence. Other feminist legal theorists focused on minority women, pointing out the error of making white, middle-class, heterosexual women the unstated norm for all women, including the most disempowered. Subordination, feminists of color such as Kimberlé Crenshaw argued, involves intersectionality. That is, multiple forms of oppression—race, ethnicity, class, gender, and sexual orientation, as well as other factors such as religion and nationality—intersect in ways in which each exacerbates the consequences of the other.
This vibrant and diverse explosion of new theoretical approaches in the law—cultural, hierarchal, and intersectional—brought concern for different issues such as sexuality, sexual violence, and pornography. New understanding of how the legal structure itself was part of the system that enforced gender inequality heightened the challenges legal feminists faced. None of these developments negated Ginsburg’s pathbreaking accomplishments. Yet collectively these new critiques served, if only temporarily, to diminish the significance of her contributions in what became a much larger debate among legal scholars about the value of liberal legalism.
Ginsburg reached the same conclusion. Never one to mince words in private, she initially confined her acerbic comments to close friends. When she read Katha Pollitt’s attack on Gilligan and other difference feminists in The Nation, she impulsively sent Pollitt a fan letter. But that was after she addressed her critics directly in a keynote speech at a 1988 symposium titled “Feminism in the Law” held at the University of Chicago. She began her remarks by celebrating the recent and rich explosion in feminist legal theory. Then she reminded her audience that in 1971, when the ACLU Women’s Rights Project was established, with the exception of the Nineteenth Amendment, “the Constitution remained an empty cupboard for people seeking to promote the equal stature of women and men as individuals under the law.” Listing each of the many negative descriptions that “some observers” had applied to her litigation, she responded, “Such comment seems to me not fair. The litigation of the 1970s helped unsettle previously accepted conceptions of men’s and women’s separate spheres, and thereby added impetus to efforts ongoing in the political arena to advance women’s opportunities and stature. An appeal to courts at that time,” she continued, “could not have been expected to do much more.”
Temperate in tone, Ginsburg left no doubt in her closing remarks that she regarded two aspects of legal feminists’ intense examination of gender and law as unacceptable: “the [current] tendency to regard one’s feminism as the only true feminism [and] to denigrate rather than appreciate the contributions of others.”
Feminist organizations outside the academy had also undergone changes in the Reagan-Bush years as leaders confronted a dramatically altered political context that put them on the defensive. It was not just the demise of the ERA. The failure of the U.S. Senate to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that President Carter had signed and twenty nations would ratify by 1981 further disappointed. The Reagan administration had also reduced the number of women in upper-level positions in government, ending the insider-outsider links that had so enhanced the effectiveness of feminist organizations in the Carter years. Other administration-inspired reverses followed: pullback in the enforcement of Title IX, virtual elimination of the Women’s Education Action Project in the Department of Education, attacks on comparable worth, elimination of foreign aid to overseas health organizations for birth control purposes, a halt on enforcement of affirmative-action regulations, and dwindling federal and state resources for agencies that aided women.
Policy shifts found reflection in popular culture. The Wall Street Journal reporter Susan Faludi’s Backlash persuasively documents the covert attack on feminism waged during the 1980s. Conservative politicians and media outlets—hostile to the clearly overblown perception of women’s increased access and the resulting loss of status for men—set out to turn back the clock. The destructive rhetoric tried to convince women that feminism was the primary cause of everything from chronic health problems to paralyzing loneliness and alcoholism and, in fact, their own worst enemy. Yet nothing so dramatized the hostility to changes associated with gender and sexuality as did the virulent attacks on abortion clinics, many of which had emerged as a result of feminist networks. Law enforcement officials estimated that “by 1990 abortion clinics had experienced 8 bombings, 28 acts of arson, 28 attempted bombings or arson, and 170 acts of vandalism.” Women’s rights groups placed the estimates even higher.
Thus, from the standpoint of some in the legal academy and others in the organizational trenches, Ruth Bader Ginsburg—pioneering sex-discrimination strategist and litigator of the 1970s—had by 1993 morphed into an outmoded supporter of formal equality, safely ensconced behind the bench and detached from the fray.
Had the feminist leaders whom Marty consulted glimpsed his wife’s clippings file on feminist legal perspectives and on gender issues during her years on the D.C. Circuit, they might have concluded that her commitment to substantive equality remained intact. Or perhaps not, considering the reputation she had acquired as a judge who prized relationships with conservative heavyweights such as Scalia and Bork. Marty could only agree with the economist John Kenneth Galbraith, who cynically observed, “Nothing is so admirable in politics as a short memory.” More than a witty aphorism, he needed advice.
He found it only in former clients such as the New York financier and philanthropist Leon Levy, but more particularly in Stephen Hess and William Josephson. Ruth’s cousin Beth Amster had married Stephen Hess, a veteran staffer in the Eisenhower and Nixon administrations and an adviser to Presidents Ford and Carter. Now a research professor of media and public affairs at Georgetown University, Hess had superb contacts in the media as well as with former staffers with whom he had worked, especially Daniel Patrick Moynihan. Josephson, a retired partner at Fried, Frank, Harris, Shriver & Jacobson, the firm with which Marty was affiliated when the Ginsburgs moved to Washington, had been a longtime friend and partner of Sargent Shriver’s and had headed Shriver’s vice presidential campaign when he ran with George McGovern in 1972.
Marty also approached Senator Moynihan, chair of the Senate Finance Committee, in April. Moynihan admired Ruth’s pioneering victories for gender equality. He had been the first to call when she was nominated to the D.C. Circuit with an offer to sponsor but had deferred to New York’s senior senator, Jacob Javits. But Moynihan was not yet ready to commit. Marty then turned to Stuart Eizenstat, former chief domestic policy adviser for President Carter. The White House, Eizenstat counseled, would expect letters from legal academics, Ruth’s other natural constituency. Wasting no time, Marty began by contacting people who had championed his wife’s candidacy in the past: her former professors Gerald Gunther and Herbert Wechsler; Michael Sovern, the president of Columbia University; and distinguished members of the American Bar Association who supported her for the D.C. Court, such as Chesterfield Smith, and Norman Dorsen, with whom she had served as general counsel for the ACLU. Other familiar names were women in legal academe: Vivian Berger at Columbia, Herma Hill Kay at Berkeley, Barbara Babcock at Stanford, Sylvia Law at NYU, Patricia King, Sue Deller Ross, and Wendy Williams at Georgetown, and Nadine Taub at Rutgers. Also included were Kathleen Peratis and Janet Benshoof.
Benshoof was an apt choice. One of The National Law Journal’s “100 Most Influential Lawyers in America,” a MacArthur fellow, and the founding director of the Center for Reproductive Law and Policy, she verified Ginsburg’s long-standing commitment to reproductive freedom in an enthusiastic endorsement. Fourteen letters from members of the New York University Law School faculty, who had heard Ginsburg’s Madison Lecture, conveyed their “distress that her remarks at NYU had been misconstrued as anti-choice and anti-women.” Thirty-four letter writers in all during April and May from notables such as Ann Richards, governor of Texas, kept Ginsburg in the running—along with strong advice from Attorney General Janet Reno to choose a woman.
Then, at the end of April, Marty received an unexpected call from Moynihan. The senator explained that he had been on a flight to New York on Air Force One when asked by the president for a recommendation for the Supreme Court vacancy. Pressed for a response, Moynihan had provided one name: Ruth Bader Ginsburg. Reporting that Clinton had replied, “ ‘The women are against her,’ ” Moynihan told Marty, “You best take care of it,” and ended the call.
Realizing that in his initial probe of feminist organizations he might have perceived indifference where there was actual opposition, Marty phoned the White House counsel, Bernard Nussbaum. An old acquaintance from New York legal circles and a Columbia and Harvard alumnus, Nussbaum was playing a major role in the selection process, along with his associates, Vince Foster and Ron Klain. Nussbaum affirmed that leaders of three women’s groups, including NOW Legal Defense Fund and NARAL, had sent a joint letter to the White House on May 19, which he faxed to Marty. Claiming that they wanted to clarify their stance, they stated that “at this stage of the process, we have not taken any position in favor of or in opposition to any candidate.” There were “a number of superbly qualified women who would be excellent candidates” for the Supreme Court. What the letter did not say was whether Ruth Bader Ginsburg, one of the most distinguished lawyers and judges of her generation, was among them.
Keenly aware that “Washington is a sieve,” Marty set to work. Contacting Stephen Hess with the news that Ginsburg’s name was not on the list, he sent along copies of her Madison Lecture. Hess circulated the information to influential members of the press, acknowledging that he was a relative by marriage. The New York Times legal commentator Anthony Lewis titled an op-ed article “How Not to Choose,” identifying himself as neither a supporter nor an opponent of Ginsburg’s selection. He defended the kind of intellectual exploration exhibited in the Madison Lecture. In particular, Lewis documented the “knee-jerk” reaction of women’s groups who opposed a former advocate who had won many of the important cases against gender discrimination. That he found “depressing.” Next came Jeffrey Rosen’s unsolicited assessment of potential nominees in the May issue of The New Republic, ranking Ginsburg as the top candidate with the strongest support from both liberals and conservatives.
On May 21, Barbara Flagg, a professor of constitutional law at Washington University Law School and a former Ginsburg clerk with whom Marty had conferred, sent a four-page letter to Harriett Woods, the two-term president of the National Women’s Political Caucus, who led the Clinton administration’s Coalition for Women’s Appointments. Urging the NWPC to support Ginsburg’s nomination, Flagg wrote,
I’ve heard expressed some concerns about her views on the constitutionally protected right of privacy, especially as it applies to homosexuals and to abortion. I’m a law professor, a lesbian, and a former law clerk to Judge Ginsburg….I want to assure you that I’m completely comfortable with, and confident of, her views on both issues….I believe that if she were [a justice], our rights would be more secure than they are today.
As letters supporting Ginsburg’s nomination continued to pour into 1600 Pennsylvania Avenue, the White House sent word to Marty to back off. But in the critical final days when Moynihan notified Hess that his office was having difficulty tracking down Griswold’s speech to the Supreme Court lauding Ginsburg’s advocacy, it was Marty who supplied the name of the person at the Court who was able to provide Moynihan with a copy that the senator then rushed to the White House.
Among the many articles on Ginsburg appearing in the days following the nomination, The Washington Post devoted one to Marty’s endeavors on his wife’s behalf, as did The New York Times and The National Law Journal. Downplaying his role, Marty explained the circumstances that had led to his solicitation of letters. He claimed to have acted without Ruth’s knowledge, although she surely had some awareness of the campaign. She apparently read Flagg’s letter to Harriett Woods for factual accuracy. Friends and relatives of the couple confirmed that Marty’s effort to smooth the way for his wife’s advancement was characteristic of the couple and their relationship. Marty had always been Ruth’s greatest fan, they noted. Hess added, “It’s a great love story.” That it was—and one with a feminist twist. No other campaign for a seat on the Court had been spearheaded by a male spouse.
With Ginsburg’s having the highest possible rating from the American Bar Association and no real opposition in sight, the three-day confirmation process promised to be subdued in contrast with the firestorm of partisan opposition that had divided the Senate and done in Robert Bork in 1987. Still more sensational had been the turn of events two years earlier in the widely televised Clarence Thomas hearings following Anita Hill’s shocking testimony about sexual harassment. In the wake of intense criticism following the Thomas-Hill confrontation, the Judiciary Committee, chaired by the Delaware Democrat Joseph Biden, had been enlarged to include two women, the Democratic senators Dianne Feinstein and Carol Moseley Braun. Nonetheless, the White House and Moynihan, as Senate sponsor, were taking no chances.
Upon Ginsburg’s nomination, Moynihan phoned Robert A. Katzmann, a former graduate student and highly talented legal scholar. Would he be willing to serve pro bono as special counsel to help prepare Ginsburg for the hearings, the senator asked, and take her on a round of office visits to members of the Senate? When Katzmann promptly agreed, Moynihan added, “Make sure she is always allowed to be herself.” The injunction proved unnecessary. As Judge Harry T. Edwards had discovered when they served together on the D.C. Circuit, “Ruth…is always the same in whatever setting you encounter her. She does not posture for family, friends, acquaintances, or onlookers.” Katzmann could have added, “Or for senators.” The nominee made clear she had no intention of distancing herself from the ACLU or any other prior affiliations.
Carefully briefed before each meeting on the interests and likely concerns of the senator she was about to meet, Ginsburg and “team Ginsburg” (Ron Klain and Joel Klein from the White House counsel’s office and Katzmann) made their rounds on the Hill. Ginsburg, recognized by admiring tourists, especially women, was immediately surrounded—a point duly noted by senators, who began having a photographer present to capture the occasion. The gracious nominee agreed to attend an ice cream social at the Capitol sponsored by constituents of the Republican senator Charles Grassley. Moynihan, who was busy with chairing the Finance Committee, received daily reports from Katzmann. The senator would then have a private word with the appropriate colleague on the floor of the Senate, reiterating his strong support of Ginsburg. Nor did Marty relinquish his role as adviser. Also briefed daily by Katzmann, the latter was much impressed by Marty’s brilliance, “keen sense of the big picture, attention to detail, and unerring judgment.” Meanwhile, Klain, Klein, and Katzmann arranged extensive tutorials for Ginsburg in the Old Executive Office Building, next to the White House, where she prepared for confirmation hearings, complete with mock questions from particular senators.
When the Senate Judiciary Committee convened on July 20 for the first day of the hearings, the nominee arrived early with family and friends in tow, including Jane’s two children, seven-year-old Paul and three-year-old Clara, along with Stephen Wiesenfeld, her former plaintiff in the Weinberger v. Wiesenfeld case. Calm and confident, she sat at the table with Senator Moynihan. Ginsburg began by introducing her family, displaying Paul’s construction book titled “My Grandma Is Very, Very Special,” followed by a brief statement on her early life, which The New York Times’s Neil Lewis dubbed her “Flatbush strategy.” Stating that she was there “to be judged as a judge, not as an advocate,” she promised to follow the model of the former justice Oliver Wendell Holmes, who counseled, “ ‘[O]ne of the most sacred duties of a judge is not to read [her] convictions into [the Constitution].’ ” Judges must remember their place in society, Ginsburg continued, indicating that she would not steer the Court beyond public opinion.
Ginsburg making the rounds of key senators’ offices with Senator Joe Biden prior to the confirmation hearings in 1993.
When questioned, the nominee demonstrated that she had mastered the rules of the confirmation game. For three days, she candidly discussed issues on which she had written while avoiding answers to anything that could be construed as likely to come before the Court in the future. Questioned about abortion, she used the plight of Captain Susan Struck to emphasize that a woman’s right to decide whether to carry to term or end a pregnancy is central to her “life, to her well-being and dignity.” Endorsing the right to privacy, she explained that she would have preferred to see Roe v. Wade grounded in equal protection and the concept of individual autonomy embodied in due process rather than in due process alone. Asked whether under equal protection the father would have an equal say in the decision, she replied, “It is her body, her life and men, to that extent, are not similarly situated. They don’t bear the child.” On gender equality, she maintained that despite the progress made by the Court, it remains important to have a statement against sex discrimination as part of the Constitution, because the Court had left the degree of scrutiny open.
Anticipating future cases, she declined to answer questions on the constitutionality of school vouchers or the rights of homosexuals, other than to denounce discrimination on the basis of sexual orientation. When pressed by senators on the death penalty, she held firm: “I am not going to say to this committee that I will reject a position…in a case [where] I have never expressed an opinion. I have never ruled on a death penalty case.” Responding that her own beliefs were not relevant, she asserted that she would be “scrupulous in applying the law on the basis of the Constitution.” Yet she did not shy away from expressing her position on questions bearing on other aspects of criminal law, whether about mandatory sentences or about a defendant’s Miranda rights. Nor did she hesitate to offer insights into her views about freedom of speech and religion, separation of powers, statutory interpretation, and enumerated rights.
In the three days of hearings, the nominee conveyed how she approached problems and made decisions, but she refused to be ideologically pigeonholed. As Elena Kagan, who served as counsel to the Judiciary Committee, observed of Ginsburg’s “preternaturally controlled testimony,” she deployed a “pincer technique” that worked well. When she chose to sidestep a question, she declined to answer, saying the “question…may well be before the Court again…and it would be inappropriate for me to say anything more,” or she would respond that the question was posed too abstractly and she would have to have a specific case complete with briefs and arguments. How such an ardent advocate turned into a judge’s judge—Biden’s initial question—was a conundrum she left unanswered. As the legal analyst Lyle Denniston noted, it was not because the committee had failed to press. Senator William Cohen, a Maine Republican, had put the Senate’s problem with the nominee to her bluntly midway through the hearings: “There is some suspicion in some circles…that you are basically a political activist who’s been hiding in the restrictive robes of an appellate judge, and that those restrictions will be cast aside when you don a much larger garment.”
Yet for all the grousing about her “stingy” testimony, Biden’s unanswered question, and speculation as to whether she might come under the sway of her more dynamic friend Justice Scalia, Ginsburg won the unanimous support of the Judiciary Committee. The Democratic-controlled Senate quickly followed with its endorsement, voting 96–3, making the confirmation an “official lovefest.” It was a tribute to the nominee’s superb performance, to Moynihan’s diligent and vigorous sponsorship, and, not least, to a Senate in which judicial nominations had not yet succumbed to party polarization.
On August 10, in the East Room of the White House, a beaming Marty Ginsburg held the Bible for his wife’s oath of office as President Clinton looked on contentedly. A small cohort of colleagues, family, and friends were also present. Moving on to the Supreme Court for the investiture ceremony followed by a reception, Ginsburg was formally presented to her eight colleagues for the first time.
Of the men before whom she had argued in the 1970s, only three remained: Blackmun, Stevens, and Rehnquist. Blackmun, now eighty-four and the Court’s most liberal justice, was expected to retire soon. Stevens, whom Ginsburg remembered for his sharp questions in the Goldfarb case, was still noted for his judicial restraint, independent streak, white hair, and familiar bow tie. He continued to consider himself a conservative in the traditional sense by adhering to deeply rooted precedents of the past. But the Court had moved so far to the right during his long tenure that he now belonged to the liberal wing. Rehnquist—the most conservative of the three—had high marks from colleagues for his skill in running the Court as well as for his intelligence and amiability.
Ginsburg’s swearing-in ceremony with Clinton, Marty Ginsburg, and Justice Rehnquist, August 10, 1993.
Among the newer members awaiting Ginsburg was Rehnquist’s Stanford Law School classmate Sandra Day O’Connor, with whom she had traveled to Paris as part of a delegation of jurists. Potter Stewart’s replacement, O’Connor had an instinct for strategic compromise that made her the powerful swing vote on the Court. Straightforward, energetic, and a born centrist, she belonged to Ginsburg’s generation of women graduates from elite law schools who had been penalized because of their sex in early job searches. Denied a job at a major law firm, she had turned first to private practice and then to electoral politics, becoming the first female majority leader of the Arizona Senate and then a state judge prior to her nomination by President Reagan to the Court in 1981. Through the choices she had made, O’Connor had become a symbol of women’s progress. Yet she had a far less robust vision of gender equality than did Ginsburg.
In the meantime, however, the new arrival appreciated O’Connor’s warm welcome and her promise to share information on the Court’s elaborate rules of protocol and decorum as well as on the personality quirks of its other members. For example, the most recently confirmed justice has special duties at conference meetings. Answering the telephone, pouring coffee, and opening the door to take messages Ginsburg knew she could manage. But the thought of having to keep a count of the votes on hundreds of appeals for review left the newest justice with the same feeling of insecurity that she remembered when taking her first practice exam at Harvard.
Two of the justices, Scalia and Thomas, she already knew from the D.C. Circuit, though Thomas’s time there had overlapped her tenure only briefly. Scalia, as combative and captivating as ever, shared her love of opera, good writing, and New Year’s Eve celebrations. But relishing Nino’s wit and intellect did not mean that she appreciated the personalizing of his dissents. Nor did she agree with his originalist understanding of the Constitution. To treat the founding document like a statute whose words carried the same meaning they did in 1787 in Philadelphia no more accorded with Ginsburg’s view of an initially flawed but evolving document than it did with Thurgood Marshall’s view of the Constitution. But as Scalia would later confess, he was a “fainthearted originalist” compared with Clarence Thomas. Thomas, unyielding in his originalism, was far more prepared to jettison long-established precedents if they conflicted with his research on the eighteenth-century meaning of the text.
That left Anthony Kennedy and David Souter. Kennedy, despite his conservative instincts, had an expansive vision of personal liberty that led him to vote against clergy-led prayer at school graduations and eventually to write the majority opinions overturning Texas’s sodomy law and Kentucky’s use of the death penalty for juvenile offenders. But he could also be mercurial. In his conservative mode, Kennedy might just as easily apply his lofty rhetoric to advance opinions that seemed to his more moderate colleagues “to repudiate…common sense.” Souter, the New England embodiment of that virtue, appealed immediately to Ginsburg with his intellect, dry wit, and gentle, helpful manner. She would also discover that he was a prolific reader and a great storyteller on those rare occasions when she could persuade the reclusive justice to attend social events. A Republican nominee to Brennan’s seat who became quite friendly with the man he replaced, Souter had a healthy respect for adherence to precedent, including Roe v. Wade.
Ginsburg holding hands with grandchildren Clara and Paul Spera. Behind her from left to right, George Spera, Jane, Marty, and James Ginsburg, after her 1993 swearing in.
After taking a second oath of office, Ginsburg put on her black robe, which she, like O’Connor, would soften with lace jabots. She then took the chair assigned to her by order of seniority. In her address after her investiture, she said, “I am a judge born, raised, and proud of being a Jew. The demand for justice runs through the entirety of the Jewish tradition. I hope, in my years on the bench of the Supreme Court of the United States, I will have the strength and the courage to remain constant in the service of that demand.”
Decisions about where Ginsburg would locate her chambers and how she would furnish them would prove at least as revealing as her testimony before the Judiciary Committee. Eschewing a first-floor suite that Clarence Thomas was about to vacate, she chose instead a more remote location on the second floor, consolidating a set of rooms previously used by retired justices. Here she could have her clerks close at hand and avoid the noise of demonstrators. Rejecting as well the massive desks used by her colleagues, she opted for a smaller one that better suited a woman barely five feet and weighing less than a hundred pounds. Above the doorway into her office hung a framed injunction from the Torah that read, “Justice, justice you shall pursue.” Airy draperies framed the windows. The art—all modern—also set the office apart. A Josef Albers painting on loan from the National Museum of American Art punctuated the light gray walls with its abstract design.
On the surrounding bookcases filled with legal volumes and a smaller collection of publications on women and gender, she carefully arranged autographed photographs of opera stars such as Luciano Pavarotti, as well as a few family photographs. A shot of her with Justice Marshall when the two were judging a moot court at Boalt Hall at Berkeley in 1978 evoked fond memories. Another photograph showed her with President Carter. Celia’s picture had pride of place on the desk. Directly across from the desk near the bookcase stood a white poster board replica of the Statue of Liberty customized by young Paul for his grandmother. On the bookcase behind the sofa, she had placed another photograph—one of her son-in-law, George Spera, holding Paul as an infant. Visitors to Ginsburg’s chambers familiar with her vision of shared work and family roles quickly grasped that the photograph conveyed a message beyond that of the usual grandmotherly pride.
Meanwhile, work piled up. The Court had scheduled forty-six cases for argument with which the justices needed to familiarize themselves before the beginning of the fall term on October 4. In addition, some 1,619 new appeals for review, along with jurisdictional statements that had accumulated over the summer recess, had to be dealt with in September. Preliminary memos prepared by clerks helped. But each memo still had to be read carefully by members of the Court and, when in doubt, checked against the original documents.
When the term officially began, the newest justice felt a bit more at home, thanks to O’Connor. A cohesive force on the Court and an open, outgoing personality, she assumed the “big sister” role that Eva Hanks had played those first years at Rutgers. The two women bonded, despite their different backgrounds, personalities, and appearances. Only three years apart in age, O’Connor and Ginsburg had former clerks in common and saw each other frequently at performances of the Washington National Opera. Both women had grown children, successful husbands, highly privileged addresses, and a zest for traveling. Neither hesitated to confront issues that she considered important.
Lawyers arguing before the Court addressed both as “Justice O’Connor.” Even Ginsburg’s longtime friends the Harvard Law School professor Laurence Tribe and the ACLU’s Bruce Ennis proved guilty, prompting the National Association of Women Judges to present the two justices with T-shirts shortly after Ginsburg’s confirmation. One read, “I’m Sandra, Not Ruth”; the other, “I’m Ruth, Not Sandra.” Though the confusion would persist throughout the time they served together, Ginsburg took it in stride. Judge Patricia Wald had preceded her on the D.C. Circuit bench. In the early years, lawyers had often confused the two.
The Marble Palace, however, required some adjustments. The justices’ robing room had to change. Despite O’Connor’s presence for twelve years, only after Ginsburg joined the Court was a women’s bathroom installed. In the meantime, as for every new member of the nation’s high tribunal, there was much to learn.