Bench Memos

Law & the Courts

Is Bill Clinton Saying that Justice Ginsburg Lied to the Senate?

At a Georgetown law school event yesterday with Hillary Clinton and Justice Ruth Bader Ginsburg, Bill Clinton revealed that he discussed Roe v. Wade with Ginsburg before nominating her to the Supreme Court in 1993 and that their discussion was important to “why I thought I should appoint her”:

[Ginsburg] knew this perfectly well, that I was under a lot of pressure to make sure I appointed someone who was simon-pure, which I had said I thought was important. But I was fascinated by a—either an article I had read or something I had read on Justice Ginsburg saying that she supported the result in Roe v. Wade but thought Justice Blackmun should have decided the case on the equal protection clause not the right to privacy. And I asked her the question and she talked about it just as if it was any other issue, no affect: “This is what I think, this is why I think it,” and she made a heck of a case.

By “someone who was simon-pure,” Clinton clearly means someone who would surely support the proposition that the Constitution confers an expansive abortion right. (As a presidential candidate in 1992, he promised that he would appoint a Supreme Court justice who “believe[d] in the right to privacy and the right to choose.”)

Clinton’s candid account of this conversation strikes me as rather difficult to reconcile with nominee Ginsburg’s sworn testimony to the Senate in 1993. The Senate questionnaire that Ginsburg completed included this question:

Has anyone involved in the process of selecting you as a judicial nominee (including but not limited to a member of the White House staff, the Justice Department, or the Senate or its staff) discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such case, issue, or question? If so, please explain fully.

In response (see p. 108 of hearing record), Ginsburg wrote:

It is inappropriate, in my judgment, to seek from any nominee for judicial office assurance on how that individual would rule in a future case. That judgment was shared by those involved in the process of selecting me. No such person discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.

But Clinton has just stated publicly that he did discuss Roe with her precisely in order to get the assurances he needed on her position on abortion. And he has further stated that Ginsburg “knew this perfectly well.”

In short, Clinton sure seems to be saying that Ginsburg lied to the Senate.

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