NEWS ANALYSIS : Ginsburg's Answers Indicate She Is More of a Liberal Than Advertised : Justice: Democrats are delighted with high court nominee. Republicans say confirmation is likely.


If Bill Clinton the candidate promised to be a new kind of Democrat, his first nominee to the Supreme Court, Ruth Bader Ginsburg, was promised as a new kind of Democratic judge.

She is "neither liberal nor conservative," the President said on the day of her nomination, but rather a careful jurist who follows the law.

Indeed, during a three-day performance before the Senate Judiciary Committee last week, Ginsburg repeatedly stressed that she is devoted to being a good judge, not a social activist.

Judges must "stand apart from the political fray," she said, and decide specific issues "fairly and impartially." Her precise answers and deliberate manner magnified the message. Judges must avoid rulings simply designed to "please the home crowd," she said.

Still, the substance of her answers suggest that Ginsburg, like candidate Clinton, may be a bit more liberal than advertised. On nearly every area of controversy where the high court is closely divided, Ginsburg placed herself on the liberal side.

She told senators that she takes an expansive view of constitutional rights, believes that the right to abortion is "essential to a woman's equality," deplored discrimination against homosexuals, promised to enforce the spirit of strict civil rights laws and supported open-ended programs of affirmative action for minorities.

She enthusiastically backed a broad right to free speech, contending that the First Amendment demands "tolerance not (just) of the speech we agree with, but the speech we hate," a paraphrase of former Justice Oliver Wendell Holmes.

She indicated that she favors a strict separation of church and state and said she believes that the antitrust laws were intended to protect consumers and competition, not "business efficiency," as conservative scholars have maintained.

Ginsburg also refused to disavow two stands she had endorsed as an ACLU attorney in the 1970s: that the death penalty is unconstitutional and that the government must fund abortions for poor women as part of an overall health care plan.

By week's end, Democrats were saying they were delighted with Ginsburg's performance, while Republicans reluctantly accepted the reality that she would win easy confirmation.

"I can unabashedly and without reservation support the nomination of Ruth Bader Ginsburg to go to the Supreme Court," Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) said as the hearings concluded Friday.

During 13 years as an appeals court judge in Washington, Ginsburg, 60, compiled a centrist record. She regularly distanced herself from what she seemed to view as knee-jerk liberal reactions by other Democratic appointees on the appellate court.

Her style of judging was so cautious, even conservative, that her nomination last month was greeted coolly by some liberal advocates.

"The liberals and the public-interest groups should be a breathing a sigh of relief," said Mary Cheh, George Washington University law professor, who sat through all of the testimony.

Ginsburg was "passionate in her commitment to equal rights and to individual liberties," Cheh said. "Her style is to get there slowly, bit by bit. But over the years, I think she will be seen as a very good choice for liberals."

Her positions on constitutional rights perhaps sounded all the more liberal because, as the first Democratic nominee in 26 years, she follows a series of Republican nominees, such as Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, who espouse a narrow, literal view of those rights.

For those who closely followed the committee's interrogation of Thomas in 1991, last week's hearings differed in one other notable way.

Thomas came before the committee with only a year's experience as a judge and a brief, early career as a government lawyer. He stumbled through the initial round of hearings, disavowed his own speeches and writings as mere "musings," and was hard-pressed to discuss, or even recall, key Supreme Court rulings from the past two decades.

Ginsburg, on the other hand, came with a background that included 13 years as an appellate judge, 8 years as a nationally prominent litigator for women's rights and 18 years as professor of law at Columbia and Rutgers universities.

In her answers, she displayed an impressive grasp of the law and an ability to articulate precise distinctions. Plus, alone among recent nominees, she displayed an affinity for the people whose cases resulted in landmark rulings, rather than focusing only on the legal doctrines that were decided.

In 1987, when Judge Robert H. Bork was asked why he wanted to serve on the Supreme Court, he replied it would be "an intellectual feast." While Ginsburg appeared to have a similar appetite for intellectual fare, she also linked the law to her concern for justice for real people.

For example, she told the story of Stephen Wiesenfeld, whose wife died in child birth in 1972. The young father, who wanted to raise the child at home, was denied Social Security benefits because the regulations then in force restricted survivor's benefits to mothers.

Ginsburg took Wiesenfeld's case to the Supreme Court in 1975, and won a unanimous ruling ordering an end to this gender bias. She completed the story by noting that Jason Wiesenfeld, the baby whose plight launched the case, had recently graduated from college and plans to enroll in law school.

While Ginsburg showed that her liberal instincts remain strong, her influence on the high court may well be slight at first.

She will join a court that has been skeptical of civil rights claims from minorities and often dismissive of the rights of criminal defendants. In general, the justices uphold state laws and federal regulations in the face of claims that they violate constitutional rights.

The court has three solid conservatives in Rehnquist, 68; Scalia, 57, and Thomas, 45. Justices Sandra Day O'Connor, 63, and Anthony M. Kennedy, 57, side with the conservatives on most issues, but have been unwilling to dramatically cut back on precedents in areas such as abortion, religion and the death penalty.

On the other side, Justices Harry A. Blackmun, 84, John Paul Stevens, 73, and David H. Souter, 53, have taken a moderate-liberal stand on issues such as civil rights, religion and criminal law.

Even if Ginsburg joins this moderate-liberal bloc, they will lack the votes to control the majority on most issues.

The Senate panel plans to vote on her nomination Thursday and send it the Senate floor for final approval in early August.

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