NEWS ANALYSIS : Articulate Judge Seen as Match for Conservatives : Court: Her step-by-step style minimizes abrupt changes. It could help build centrist consensus.

During the months when President Clinton was considering a new justice for the Supreme Court and a wide range of well-known liberals were being discussed, Justice Antonin Scalia’s law clerks sought to learn his preference.

“If you had to spend the rest of your life on a desert island with Mario Cuomo or Laurence Tribe, which would you choose?,” they asked one day at lunch, referring to the governor of New York and the prominent Harvard law professor.

The high court’s conservative intellectual had a quick answer. “Ruth Bader Ginsburg,” said Scalia, who served four years with her on the U.S. appeals court in Washington, D.C.

As Scalia’s admiring quip suggests, President Clinton’s nominee to replace retiring Justice Byron R. White will provide the court with something it now lacks: an articulate moderate jurist who is fully capable of matching wits with the high-powered and assertive conservatives.

Since the 1990 retirement of Justice William J. Brennan, the court has been without an influential advocate for constitutional rights. “She will add some intellectual force to the left side of the court,” said Georgetown law professor Susan Low Bloch.

Perhaps equally important, Ginsburg brings to the court a preference for a one-step-at-a-time style of judging, one that seeks to avoid or minimize abrupt and sweeping changes in the law. As a result, she could prove far more effective than a less-restrained justice might in winning the support of the court’s all-important swing votes: Justices Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter.

“She’s a judge’s judge. She likes to decide in a narrow, incremental way,” said University of Chicago law professor Cass Sunstein.

So what does that combination--relatively liberal social views and a cautious judicial style--mean for the future of the court?

First, Ginsburg is likely to cement a majority in favor of striking down most, but probably not all, restrictions on abortion. If confirmed, she will replace a justice who favored throwing out the abortion right entirely.

Last year, a 5-4 majority of the court announced that it intended to strike down any laws that placed a “substantial obstacle” in the path of women seeking abortions. The court will soon face cases that put that principle to a test.

Second, she is likely to strengthen the court’s stand against sexual harassment and gender discrimination.

In the fall, the justices will reconsider a lower court ruling that dismissed a woman’s complaint of repeated sexual harassment on the job because she had not suffered “severe psychological injury.” With Ginsburg on the court, the justices are more likely to reject such a rigid standard for finding a violation.

“She will represent a sea change from Byron White,” said Janet Benshoof, director of the Center for Reproductive Law and Policy in New York, noting that the retiring jurist rarely supported women’s rights.

Third, Ginsburg may lead a new consensus on outlawing discrimination against lesbians and gays. In recent years, the court has avoided that topic but will likely face the issue soon.

Ginsburg “has said that society could not base its laws on irrational stereotypes about women,” Northwestern University law professor Jane Larson said. “She would not accept intolerant stereotyping of people. I think she will take the same approach with gays and say that laws cannot stand if they are based on irrational bigotry.”

During her career as a lawyer and judge, Ginsburg has fiercely championed the view that the constitution forbids government to enact laws that restrict a woman’s right to full equality, including regulations that restrict access to abortion.

In the 1970s, this was seen as novel. Until then, the constitution’s guarantee to each person of the “equal protection of the laws” was seen only as a bar against racial discrimination, not against laws or policies that were biased against women.

But as director of the women’s rights project for the American Civil Liberties Union, Ginsburg insisted that the constitution did not permit government discrimination based on gender. In six cases, she made that argument before the high court.

By the end of the 1970s, the court majority too had come to the view that laws based on “stereotypes about the ‘proper place’ of women” could not stand.

This evolution in the law, though too slow in coming to suit many, nonetheless seems to fit Ginsburg’s style as well. She brings to the court a preference for gradual, not radical, change in the law.

In March, she surprised some women’s right advocates by delivering a speech in New York that criticized the 1973 Roe vs. Wade decision for going too far too fast.

The Supreme Court risks its legitimacy when it “steps boldly in front of the political process,” she said. “Without taking giant strides and thereby risking a backlash too forceful to contain, the court can reinforce or signal a green light for social change.”

In her view, the Roe decision should have struck down the Texas law before it, a statute which made all abortions a crime, even those intended to save a woman’s life.

Justice Harry A. Blackmun’s opinion declared abortion a “fundamental right” and said that no medical regulations could interfere with it. In one opinion, the court sought to take on the abortion matter and settle it entirely. Instead, it sparked a right-to-life backlash and two decades of controversy, she noted.

Of course, Ginsburg did not differ with the outcome. She too believed that the court should strike down laws restricting a woman’s rights, but she favored a more cautious, gradual approach. This “might have served to reduce rather than to fuel controversy,” she said.

Ginsburg Cites Women’s Gains

Excerpts from Ruth Bader Ginsburg’s acceptance remarks:

“Mr. President, I am grateful beyond measure for the confidence you have placed in me, and I will strive, with all that I have, to live up to your expectations in making this appointment.”

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“The announcement the President just made is significant, I believe, because it contributes to the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers.”

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“I expect to be asked in some detail about my views of the work of a good judge on a high court bench. This afternoon is not the moment for extended remarks on that subject, but I might state a few prime guides. Chief Justice Rehnquist offered one I keep in the front of my mind. A judge is bound to decide each case fairly in accord with the relevant facts and the applicable law, even when the decision is not, as he put it, what the home crowd wants.”

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“I am indebted to so many for this extraordinary chance and challenge, to a revived women’s movement in the 1970s that opened doors for people like me, to the civil rights movement of the 1960s from which the women’s movement drew inspiration, to my teaching colleagues at Rutgers and Columbia, and for 13 years, my D.C. Circuit colleagues, who shaped and heightened my appreciation of the value of collegiality.”

Source: Times wire reports