Bench Memos

Law & the Courts

Ruth Bader Ginsburg Was Easily Confirmed Despite Taking Controversial Positions

Supreme Court Justice Ruth Bader Ginsburg in 2017 (Jonathan Ernst/Reuters)

As Judge Amy Coney Barrett’s liberal opponents scurry around in search of a record of personal views she expressed in the past, consider how diametrically opposed this behavior is to the approach the Senate took toward the previous occupant of the vacant Supreme Court seat.

Justice Ruth Bader Ginsburg, President Bill Clinton’s first nominee to the Court, had been a liberal activist lawyer for the ACLU before becoming a judge. She had taken a host of positions that were far to the left of most Americans. For example:

  • She advocated making prisons and reformatories sex-integrated. When deciding where to house convicted offenders, she argued, the law should not “permit consideration of a person’s gender as a factor making a particular institution appropriate or suitable for that person.”
  • She argued that traditional marriage laws that prohibit bigamy may be unconstitutional, because they “encroach impermissibly upon private relationships.”
  • She argued that there may be a constitutional right to prostitution and recommended deleting “references to prostitution in a criminal context” from federal statutes.
  • She criticized the Court’s “public assistance” abortion decisions, which allowed the government to “encourag[e] childbirth in preference to abortion” with measures like the Hyde Amendment.
  • She attacked the Boy Scouts and Girl Scouts for “perpetuat[ing] stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.”
  • She advocated “[r]eplacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ . . . as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.”

Yet when it came time for the Senate to consider her nomination, none of that mattered. Ginsburg was confirmed almost unanimously 42 days after the Senate received her nomination. As she recalled the process in an interview two years ago:

The atmosphere in ‘93 was truly bipartisan. The vote on my confirmation was 96 to 3—even though I had spent about 10 years of my life litigating cases under the auspices of the ACLU and I was on the ACLU board and one of their general counsels. My White House handlers asked me questions about my ACLU affiliation. They were very nervous about it. And I said forget it, just forget it. Nothing you can do that would lead me to badmouth the ACLU. And not a single question—no senator asked me any question, not about that.

During her hearing, Ginsburg told the Senate Judiciary Committee, “My own views and what I would do if I were sitting in the legislature are not relevant to the job for which you are considering me, which is the job of a judge.” Judge Barrett similarly testified at her Seventh Circuit nomination hearing in 2017: “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else on the law.”

The positions Barrett has expressed off the bench do not stray far out of America’s mainstream the way Ginsburg’s did. Those who understand the function of courts and who approach the process in good faith appreciate the difference between a judge’s personal views and her decisions as a jurist. After all, Barrett is not running to be a senator or a president. She has been nominated to the Supreme Court, and politics has no place in the courtroom. She already is an appellate judge, and her record on the bench is consistent: She fairly applies the law and the Constitution.

That has not stopped Democrats from disregarding the bipartisan tradition to which Ginsburg referred. As with previous nominations made by Republican presidents, we are already seeing Democrats eviscerate any trace of bipartisanship in this process, making it, to quote Ginsburg in 2018, “a highly partisan show.” The departed justice spoke those words during the Brett Kavanaugh nomination — and before the allegations had even surfaced that would mark that nomination process’s deepest descent into ugliness.

On the difference between how her nomination was handled and what the process has since become, Ginsburg did not mince words: “The way it was, was right. The way it is, is wrong. . . . I wish I could wave a magic wand and have it go back to . . . the way it was.”