While mourning continues for Ruth Bader Ginsburg, and very rightly so, we should also understand that her unexcelled service on the Supreme Court almost never happened, and why.
He appointment nearly was stopped by those who found her too temperate for the job.
Ginsburg’s opponents on these grounds were activists in several women’s organizations. What they had against her was a speech.
In the spring of 1993, Ruth Ginsburg, who had been a judge on the Circuit Court of Appeals for 13 years, gave the James Madison Lecture on Constitutional Law at NYU.
Less than two weeks later, a vacancy occurred on the U.S. Supreme Court. The new president, Bill Clinton, got to make the appointment. New York Sen. Daniel Patrick Moynihan suggested that Clinton name Ruth Bader Ginsburg.
Clinton’s response: “The women are against her.”
There was indeed a strong belief that feminists were opposed to putting Ginsburg on the Supreme Court. This impression was so strong that leaders of three major law organizations promoting gender equality felt compelled to issue a statement to the White House denying that they opposed Ruth Bader Ginsburg. Instead, they explained, they were not then supporting or opposing anyone. Thanks a lot.
Why was there even a question of feminist opposition to the lawyer who so effectively had argued their most important cases?
Because she had given a speech. And in that speech she had mentioned Roe v. Wade. Ginsburg obviously supported the establishment of a constitutional right to an abortion. But in her speech she added that the case might have been decided on better grounds. Instead of relying on the right to “privacy” — a word not found in the Constitution — she said it would have been better to rely on actual constitutional language: the Fourteenth Amendment, for example.
But Ginsburg’s sin went beyond preferring a better basis for Roe v. Wade. She also stated that clearer grounds for a decision would help the public accept that decision, and that public assent was an important thing. The court, in short, should not be too far ahead of public opinion.
This was infuriating to those who assumed that public opinion was an impediment to progress.
Hence the opposition to Ruth Bader Ginsburg.
Her opposition had an attitude. She had a problem.
She also had a friend. Sen. Moynihan strongly supported Ginsburg. And he understood Bill Clinton. He told Clinton that when Ginsburg had been appointed to the Circuit Court, she’d been described as “the Thurgood Marshall of the Women’s Movement.”
What a line for a Rose Garden announcement! The trout took the bait. Last week’s news retrospective showed old tapes of Clinton using the Thurgood Marshall line in nominating RBG.
Ginsburg was approved by the Senate with just three dissenting votes.
That she became a national icon, and perhaps more of a role model for young women than any other figure in our time, including first ladies, is a testament to her integrity — and to her innate moderation. She never backed away from her principles. But she did strive to make them not only law, but accepted.
She was opposed by those who distrust public opinion. A widely grieving nation, and lifted sights for half its people, suggest that public opinion is not such a bad thing, after all.
David Lebedoff is a Minneapolis attorney and author.