Ruth Bader Ginsburg, Bill Clinton's first nominee for the Supreme Court, rose to prominence with the American Civil Liberties Union, fighting for women's equal treatment under the law. Commitment to women's rights runs deep in Ginsburg, even into her tenure as a U.S. Court of Appeals judge starting in 1980. In a 1984 speech she advocated universal day care as a step toward gender equality. In a 1988 essay on women and the Constitution, she reminded readers that the supposedly liberal Warren Court kept "the Constitution... an empty cupboard" for women when it ruled that women had no right to serve on juries or tend bar. In a 1989 dissent she chastised fellow Appeals Court judges and the Reagan Administration for cutting off Agency for International Development funds to population control groups involved in abortion or abortion counseling. In a much-publicized lecture earlier this year at New York University, she praised the feminist movement's "ongoing revitalization in the 1980s and 1990s."
But there's another Ruth Bader Ginsburg: the judge who in 1990 dismissed a sweeping twenty-year-old civil rights suit aimed at pressuring a reluctant federal government to desegregate higher education. Ginsburg said courts can't be the "overseers" of civil rights law. In 1984 this Ruth Bader Ginsburg concurred in the Navy's discharge of a gay sailor and the C.I.A.'s firing of a homosexual employee for no reason other than sexual orientation. And in 1986 she wrote an opinion giving legal imprimatur to Kawasaki Motors' secret use of union busting consultants during negotiations with the United Auto Workers.
The adjective "moderate" does justice neither to her pioneering work in women's rights law nor to her more recent tenure as a judge during which, according to a study in Legal Times, she voted more often with conservative Republicans like Robert Bork than with federal Democratic appointees like Abner Mikva. Strip away the rhetoric of moderation and you have a nominee of real intellect and substance--but one whose judicial record and philosophy, as distinct from her personal sentiments, raises disturbing questions for anyone concerned with civil rights and civil liberties.
These questions aren't necessarily the ones attracting attention. Take, for instance, abortion rights. News reports of Ginsburg's N.Y.U. lecture, in which she questioned both the underlying reasoning and breadth of Roe v. Wade, roused widespread concern among feminists, who feared she was retreating from abortion rights in general.
At N.Y.U. as in several other papers and speeches over the past decade, Ginsburg made a two-pronged argument: First, that women's abortion rights today would be stronger if the 1973 Supreme Court had relied on gender equality, rather than the hard-to-define concept of sexual privacy, in overruling the Texas ban on reproductive choice. Such an approach, she says, would make it harder for today's Court to avoid "the plight of women without means," as Justices O'Connor, Kennedy and Souter did in 1992 by permitting some state limitations on access to abortion services. Second, Ginsburg asserts that the 1973 Supreme Court, by imposing its trimester rules for access to abortion, prematurely cut off an important national debate. If instead the Court had simply found abortion legal, inviting state legislatures into a "dialogue" over the specifics of access, the reproductive rights issue would have been resolved through the political process in the early 1970s rather than dividing the country to this day. What's more, it would have been decided strongly on the side of choice, given the vitality of the grass-roots women's movement.
As historian David Garrow put it in The Washington Post, Ginsburg can fairly be charged with "misconstruing the historical context" of Roe and the already deep polarization of the nation in 1973. …