Bench Memos

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Ruth Bader Ginsburg: Unenlightened and Unjudicial


Justice Ruth Bader Ginsburg has somehow seen fit to publicly offer her views on whom President Bush should appoint to replace Justice O’Connor. “[A]ny woman will not do,” she says, because there are “some women who might be appointed who would not advance human rights or women’s rights.” In what may have been an attempt at humor, she added, “I have a list of highly qualified women, but the president has not consulted me.”

I suppose that it shouldn’t be surprising that a justice who doesn’t respect the difference between judging and legislating when she is deciding cases wouldn’t understand that there are live political issues on which she should refrain from commenting. Indeed, Ginsburg has previously complained about the Senate’s ongoing refusal to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (otherwise known as CEDAW), so maybe she figured it’s time to intrude on executive-branch responsibilities.

Beyond the inappropriateness of Ginsburg’s comments is–not to put too fine a point on it–their arrogant stupidity. Ginsburg obviously thinks that a justice has a roving authority to “advance human rights or women’s rights,” irrespective what the Constitution and other federal laws actually mean. It is equally obvious that she sees her own ideological agenda–which apparently includes same-sex marriage, taxpayer-funded abortion on demand, prostitution, bigamy, and co-ed prisons–as the proper way to advance those rights.

Ginsburg also defended her unprincipled and opportunistic reliance on foreign law to construe the Constitution (a reliance that I have criticized in this essay and in this testimony before a House subcommittee): “I will take enlightenment wherever I can get it,” she said. “I don’t want to stop at a national boundary.”

If Ginsburg were really seeking enlightenment, reading and thinking about Justice Scalia’s opinions would be a good place to start. But she instead sees in foreign law another tool to enable her to override willy-nilly the power and responsibility of American citizens to decide how their own states and communities and the nation should be governed.


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