Bench Memos

Slate’s Noah on Graham and Ginsburg: Wrong Again

It appears that Slate’s Timothy Noah simply can’t acknowledge when he’s wrong. As I recently discussed, Noah criticized Sen. Lindsay Graham and, to a lesser extent, Eugene Volokh and me for pointing out that Ruth Bader Ginsburg, as an ACLU attorney in the 1970s, had advocated legislative changes that would have reduced the age of consent for statutory rape under federal law from 16 to 12. Volokh and I (Volokh far more thoroughly than I) completely refuted Noah.

Noah is out of ammunition, but hasn’t given up. In his reply yesterday, Noah relies primarily on tendentious distortions of the issue: Did Ginsburg “ever condone pedophilia,” he asks? “Volokh and Whelan insist that in praising S. 1400, §1633, Ginsburg was praising the lowering of the age of consent,” he asserts. On the issue actually in dispute—did Ginsburg advocate legislative changes that would have reduced the age of consent for statutory rape under federal law from 16 to 12?—Noah claims that “it simply isn’t true that Ginsburg was proposing the language [from S. 1400] she cited.… Ginsburg never wrote, or even implied, that all the language be adopted verbatim.” According to Noah’s parsing, she merely proposed language “patterned after” S. 1400.

Wrong again. As I stated in my previous post, here (from page 76 of her report) is Ginsburg’s specific recommendation regarding 18 U.S.C. § 2032: “Eliminate the phrase ‘carnal knowledge of any female, not his wife who has not attained the age of sixteen years’ and substitute the offense as set forth in S. 1400, §1633.” (Italics added.) In the recommendation immediately following, regarding 18 U.S.C. §1153, Ginsburg likewise states: “Eliminate the phrase ‘carnal knowledge of any female, not his wife and substitute the offense as set forth in S. 1400, §1633.” (Again, italics added.) (Ginsburg’s complete report is available at the link at the bottom here, but may take some time to download.) In other words, Ginsburg specifically proposed that the bill language providing for an age of consent of 12 “be adopted verbatim.”

I have never alleged that Ginsburg morally condoned pedophilia. Indeed, in pointing out that she advocated legislative changes that would have reduced the age of consent for statutory rape under federal law from 16 to 12, I have acknowledged the possibility that her recommendation may have been reckless rather than intentional.

Let’s not lose sight of the broader picture. As one would expect from a longtime ACLU activist, Ginsburg, at the time that she was nominated to the Court, had a record of extremist constitutional and policy views that placed her on the far left fringes of American society. I am not contending that these views provide a full account of Ginsburg’s record at the time of her nomination. But it is inconceivable that anyone that President Bush nominates to the Supreme Court will have a record on the “right” that remotely compares to the extremist leftist aspects of Ginsburg’s record (whether at the time of her nomination or on the Court—here’s a broader summary). And it is shameful that Democratic senators and the liberal media have the gall to portray Ginsburg as a “moderate” and as in the “mainstream” while they attack President Bush’s outstanding nominees whose records and values are, by any measure, far more in line with those of the American people. Moreover, Senate Democrats, having recognized the legitimacy of the Ginsburg Standard—”no hints, no forecasts, no previews” on issues that might come before the Court—when applied to Ginsburg’s nomination, are obligated to respect the next Supreme Court nominee’s invocation of that same standard.

By the way, one or two readers have wondered whether the number of posts that I have devoted to Ginsburg might be misunderstood as reflecting some special personal dislike for Ginsburg on my part. That is certainly not the case. I don’t know her, but she and I have some friends in common, and I am ready to assume that she is a perfectly lovely person. Beyond discussing the valuable context that her pre-nomination record provides, it is her concept of the role of a Supreme Court justice—and her implementation of that concept—that I have criticized. Even then, Ginsburg is definitely not my least favorite justice. But her inappropriate and mistaken public remarks and her defenders’ misrepresentations of her record have occasioned my multiple comments.

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