Bench Memos

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Cornyn on Ginsburg


My NRO essay today on extremist aspects of Ruth Bader Ginsburg’s record at the time she was nominated to the Court reminds me that I’ve been meaning to defend Senator Cornyn against a charge that he misrepresented Ginsburg’s record. In this op-ed in the Washington Post, Cornyn wrote:

Before becoming a judge, Ginsburg expressed her belief that traditional marriage laws are unconstitutional but that prostitution is a constitutional right. She also wrote that the Boy Scouts and Girl Scouts are discriminatory institutions, and that courts must require the use of taxpayer funds to pay for abortions–hardly views Americans would consider mainstream.
I have no interest in picking a fight with lawyer (and Manhattan Institute scholar) Peter Huber, whom I like and whose sterling brilliance I admire. But Huber, who served as a law clerk to Ruth Bader Ginsburg when she was a judge on the D.C. Circuit, took issue with Cornyn’s comments in a recent letter to the editor. Huber’s loyalty to his former boss is, I suppose, commendable. But it is Huber’s rebuttal to Cornyn’s comments, not Cornyn’s reading of Ginsburg’s record, that is “tendentious” or at least mistaken. Consider:

1. Huber says that the Ginsburg report took no position on whether the Boy Scouts’ and Girl Scouts’ supposed perpetuation of stereotyped sex roles was unconstitutional. Cornyn never said it did.

2. Huber leaves the impression that Ginsburg was merely pointing out that traditional marriage laws and laws against prostitution are “arguably” unconstitutional. For the reasons that I explain in my essay, I do not believe that is the most natural reading of Ginsburg’s statements. Indeed, if, as Huber says, Ginsburg’s report was merely intended to describe the changes “needed to make federal law gender-neutral,” why would she even raise these constitutional arguments? A fair reading of her recommendation that the federal laws against prostitution be repealed suggests (or certainly leaves wide open the possibility) that her constitutional argument provides at least part of the basis for that recommendation.

3. Huber claims that Cornyn was mischaracterizing Ginsburg’s “legislative recommendations as broad pronouncements about what’s constitutional and what isn’t.” But that’s not at all what Cornyn did. Rather, Cornyn cited a mix of Ginsburg’s constitutional and policy positions to show that Ginsburg had views that Americans wouldn’t consider “mainstream.”

In sum, Cornyn’s treatment of Ginsburg’s record was fair and accurate. And, for what it’s worth, Ginsburg has been far less fair in dealing with those with whom she disagrees, as her ridiculously crude attack against originalists shows.


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