Ginsburg Nomination Cited as Example

In mid-June of 1993, President Clinton wanted to replace a conservative Supreme Court justice with a former general counsel for the American Civil Liberties Union who had once cast doubt on the laws against prostitution and bigamy and proposed that men and women should be housed in the same prisons.

Yet six weeks later, Judge Ruth Bader Ginsburg won the unanimous approval of the Senate Judiciary Committee. And that Aug. 3, she was confirmed as Justice Ginsburg on a 96-3 vote in the Senate.

This summer, liberal activists have been looking back to the bitter confirmation battles over Judge Robert H. Bork in 1987 and Justice Clarence Thomas in 1991 and arguing that the Senate must take a long and probing look into the background and views of Judge John G. Roberts Jr. before confirming him to the Supreme Court.

But why, ask many conservatives, isn’t the relatively quick and noncontroversial Ginsburg confirmation the more apt precedent for the upcoming Senate hearings on Roberts?

They point out that Clinton was shifting the court to the left when he replaced the retiring Justice Byron R. White, a staunch foe of abortion rights and affirmative action. They also note that before becoming a judge, Ginsburg had taken some controversial stands in the 1970s, when she was an advocate for women’s rights and the principle of gender equality.

Nonetheless, Republicans as well as Democrats agreed at the time that the president had chosen a well-qualified nominee who deserved to be confirmed.

Although there are differences between the Ginsburg and Roberts nominations, the two cases reflect the increasing partisanship in Washington over key appointments -- a division that makes a struggle over President Bush’s first Supreme Court choice a virtual certainty, regardless of who was nominated.

The differences between the Ginsburg and Roberts nominations also show how interest groups on the left and the right have geared up for years for a fight over a Supreme Court nominee. It has been 11 years since a seat has become vacant.

Both sides agree the stakes are high, because a 50-year-old nominee like Roberts, once confirmed, may serve for decades on the high court.

But they disagree on the role of ideology in the debate. Conservatives say that Roberts’ writings as a young conservative in the Reagan administration are not significant, any more than was Ginsburg’s work as an ACLU advocate.

“Ginsburg wasn’t anywhere near the mainstream,” said Edward Whelan, who in 1993 was an aide to Sen. Orrin G. Hatch (R-Utah) and is now president of the Ethics and Public Policy Center in Washington.

She “had a record of extremist constitutional and policy views that placed her on the far left fringe of American society,” Whelan said. “Sen. Hatch and other Republicans voted to confirm her because they believed the president was entitled to considerable deference in selecting a Supreme Court justice.”

Liberal advocates dispute the comparison between Ginsburg and Roberts. She had a 12-year record as a judge on the U.S. Court of Appeals in Washington when nominated, whereas Roberts has served only two years on the same court, they say.

“Like Sandra Day O’Connor, Ruth Bader Ginsburg was a consensus nominee,” said Ralph G. Neas, president of People for the American Way. “Orrin Hatch told President Clinton that Ginsburg was acceptable before she was nominated. She had a long and detailed record from her time as a federal judge. In her case, there was no need for extended hearings.”

Although Ginsburg’s writings as a law professor and ACLU lawyer were available for all to read, “there are parts of [Roberts’] record that are still hidden, and apparently the White House and its far-right allies want it to stay that way,” Neas said.

Senate Democrats have not said they will vote against Roberts. They have, however, insisted that they should be able to examine his legal work from when he served in the administrations of Presidents Reagan and George H.W. Bush.

The ranking Democrat on the Judiciary Committee, Sen. Patrick J. Leahy of Vermont, said the Roberts files raised troubling questions about the nominee. “Those papers that we have received paint a picture of John Roberts as an eager and aggressive advocate of policies that are deeply tinged with the ideology of the far right wing of his party then and now,” Leahy said in a statement. Roberts appeared to be part of “a cadre intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy and access to justice,” Leahy said.

The administration has refused to release files from Roberts’ work at the solicitor general’s office from 1989 to 1993. But the National Archives and Ronald Reagan Presidential Library have released thousands of other records in two batches last month and this week. The National Archives said it would make an additional 36,000 pages of files from the Reagan library available today.

Roberts’ defenders say these files show only that the young lawyer shared the conservative views of Reagan and former President Bush. They also say his views should not stand in the way of a speedy confirmation.

“Historically, there has not been an ideological litmus test for Supreme Court nominees. Qualifications, ethics and temperament have been the criteria for confirming justices,” White House spokesman Steve Schmidt said. “That was certainly the case with Justice Ginsburg. Bob Dole [then the Senate’s minority leader] said she was a clearly a liberal who had written many things that were provocative to Republicans. But Bill Clinton had won the election, and it was his nomination.”

Clinton could look forward to an easy confirmation for Ginsburg in 1993 as well as for Justice Stephen G. Breyer the next year because the Democrats held a 57-43 majority in the Senate. The same holds true now for President Bush and Roberts. Republicans hold 55 seats in the Senate, and none of the Republicans have voiced doubts about supporting the president’s nominee.