Expansive View of Rights Told by Ginsburg

Judge Ruth Bader Ginsburg, in stark contrast to other recent Supreme Court nominees, told a Senate panel Tuesday that she takes an “expansive” view of the individual rights protected by the Constitution, including new rights that emerge as society changes.

“The whole thrust (of the Constitution) is that people have rights and government must be kept from trampling on them and the rights are stated with great breadth,” Ginsburg said in response to the opening questions from the Senate Judiciary Committee.

Facing a friendly forum whose members had all but assured her confirmation, Ginsburg, 60, took time to spell out her view of the Constitution and the role of the Supreme Court.

Speaking in her distinctively deliberate manner, she set forth a broad approach to protecting individual rights that differs markedly from the view put forth over the past decade by leading conservatives.

Her remarks may signal, too, that Ginsburg could play an important role in the decade ahead as the high court confronts claims for new constitutional rights, such as the “right to die” for the terminally ill and the rights of homosexuals to equal treatment under the law.

Conservatives such as Chief Justice William H. Rehnquist, Justice Antonin Scalia and failed Supreme Court nominee Robert H. Bork have maintained that the justices must interpret the Constitution by the “original intent” of those who wrote it more than 200 years ago. Judges should stick to the narrow, literal language of individual rights set forth in the document, they have maintained.

By this standard, Rehnquist and Scalia have disputed that the Constitution offers women a right to abortion because such a right was not explicitly mentioned nor even considered when the document was originally written.

By contrast, the court majority in the Roe vs. Wade case took the view that the Constitution’s guarantee of individual “liberty” had evolved by the 1970s so that it could be interpreted as protecting a woman’s decision to end a pregnancy.

Similarly, the justices are likely to confront the question soon of whether the 14th Amendment’s guarantee of “the equal protection of the laws” permits the government, including the Pentagon, to discriminate against homosexuals. The court also likely will decide in the years ahead whether states can outlaw “assisted suicide” for those who want to end their lives.

The outcome in both areas probably will depend on whether the high court agrees that individual rights can change along with society.

Legal conservatives, including several current justices, look to the past and argue that the authors of the 14th Amendment in 1868 did not intend to outlaw discrimination against homosexuals or to strike down laws against suicide.

Ginsburg, without commenting on specific controversies, stressed that she believes the rights in the Constitution must evolve as society changes. And these individual rights are not limited to the literal wording of the document, she said.

The Bill of Rights was not intended as “a limited catalog” of a few rights that would get skimpy protection from the courts, she said. The original Constitution must not be frozen in time, she added, because to do so would leave out protections for blacks and women, among others.

“The beauty of the Constitution,” she said, is that “ ‘We the People’ has grown ever larger.”

“I’m delighted by your answer,” replied Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.). “You have made a fundamental distinction from other nominees that have been before this committee in the past decade.”

In her opening statement, Ginsburg assured the senators that her approach would be “neither conservative nor liberal.” She said that she would be a deliberative judge who follows the law, not someone who decides based on her personal ideological views.

Quoting Justice Oliver Wendell Holmes, she said: “ ‘One of the most sacred duties of a judge is not to read her convictions into the Constitution.’ I have tried, and I will continue to try, to follow that model,” she said.

She also stressed that changes in the law should come slowly. Quoting Justice Benjanm Cardozo, she said: “Justice is not to be taken by storm. She is to be wooed by slow advances.”

Since President Clinton selected the veteran appeals court judge a month ago, her nomination has won nearly unanimous praise. As a judge, she compiled a judicial record as a cautious centrist, so that even Republican members of the committee voiced praise for her.

No issues have been raised since then, nor during Tuesday’s first hearing, that would slow her confirmation.

Indeed, Sen. Arlen Specter (R-Pa.) chided his colleagues for endorsing Ginsburg’s confirmation even before the hearings had begun. “It looks like we’re just going through the motions,” he said.

The proceedings are expected to continue through the week and may end Friday with a closed-door session, in keeping with a pledge Biden made after the highly charged confirmation hearings for Justice Clarence Thomas.

After the brouhaha over the Thomas hearings and the belated revelation that Prof. Anita Faye Hill had charged him with sexual harassment, the all-male Judiciary Committee was harshly criticized for failing to explore the issue in more depth.

Afterward, Biden announced that the committee would meet in private before approving each high court nominee to consider any confidential charges that have arisen. He stressed Tuesday, however, that none had arisen in Ginsburg’s case.

“It’s nice to start with you,” Biden told Ginsburg. “We won’t have to spend a lot of time.”

The committee itself also has changed since the 1991 Thomas hearings. Its membership has expanded to 18, and two women have been added: Sens. Dianne Feinstein (D-Calif.) and Carol Moseley-Braun (D-Ill.).

Both were elected last year and said they were delighted to see a woman come before the committee as the first new nominee for the Supreme Court.

If confirmed, Ginsburg will join Justice Sandra Day O’Connor as the court’s second woman.

If the hearing lacked the drama or heated give-and-take exchanges between senators and the nominee, it gave Ginsburg a chance to describe for a national TV audience the profound change in the law that took place during the 1970s struggle to eliminate legal discrimination based on gender. She was a key player in that drama as general counsel for the Women’s Rights Project of the American Civil Liberties Union.

“It may sound astonishing to the young people here,” she said, to know that as late as the 1970s, women could be given fewer benefits than men, denied the right to control an estate, or fired from jobs when they became pregnant.

In a carefully conceived legal attack, Ginsburg challenged the notion that the law can make distinctions based on gender. By winning five of six cases before the high court during the decade, she persuaded the court to conclude that in nearly all instances, governmental discrimination based on gender is unconstitutional.

* PATH TO NOMINATION: Ginsburg met challenges to write her own success story. A5