In retrospect, the best thinking is that Ginsburg was wrong about the backlash. Women, unlike racial minorities, were deeply divided on the subject of their rights. Their distribution in the households of their oppressors gave them a chance not only to educate but equally to sell out the movement. Religion would play a powerful role in women’s thinking. The backlash against abortion rights was well under way when the Court decided Roe v. Wade. And nothing the Court could have done would have staved off the resistance to abortion rights in particular or women’s rights in general.
Right or wrong, however, the timing of her remarks could not have been worse. The week she unloaded on Roe v. Wade in the very public forum of the Madison Lecture, Justice Byron White announced his retirement, leaving President Clinton with a slot to fill. Ginsburg’s name was on most of the long, early lists. White House temperature-takers learned, however, that there was resistance to her candidacy in “certain women’s groups,” the National Abortion Rights Action League’s influential Kate Michelman among them. It’s not that radical academic feminist theorizers are serious players in national political circles, but the competition for a Supreme Court seat is so tight that any opposition or problem at all is disproportionately threatening to the nominee. Soon Ginsburg stopped being the subject of speculative leaks. Other names took the fore.
Within weeks of the cooling on Ginsburg, Stanford Law Professor Barbara Babcock’s phone went off at seven a.m. Martin Ginsburg was calling. “Those East Coasters,” Babcock said. “They are up and it is way early here but what they want is so important to them, they call anyway.” Babcock was one of a handful of prominent feminist law professors who could reassure the White House that Ruth was a legend in the women’s movement. “He was absolutely sure I would go to bat for Ruth,” Babcock recalls. “And, actually, he was right.” Babcock reached out to her former student Cheryl Mills, deputy White House counsel, to speak for Ginsburg. Marty’s minions ginned up so many letters, no one at the White House could read them all. The presidents of Stanford and Columbia wrote. The female Democratic governor of Texas, Ann Richards—a newly minted celebrity from her showstopping performance at the 1992 Democratic National Convention—wrote. That rare bird, the African-American Republican stalwart, and Gerald Ford’s transportation secretary, William Coleman wrote. However, Clinton yearned for Cuomo and still leaned toward Stephen Breyer.
Then it emerged that the refined and aristocratic Judge Breyer (or his titled British wife, the Honourable Joanna Freda Hare Breyer or, technically, both) had failed to pay Social Security taxes for their household help, the same issue that had brought down two of Clinton’s cabinet appointments. Although some in the White House thought Breyer was the perfect candidate to face down the “nanny tax” troops, in 1993, Clinton actually wasn’t eager for another incident. (Ginsburg, who had many employees over her long working life, and her tax lawyer husband were squeaky clean.)
And so Ginsburg’s name bobbed up again. Many observers credit Attorney General Janet Reno (who, one would think, Clinton might have consulted) with asking the president about Ginsburg. Nussbaum thought she would be a good selection because of her historic role at the ACLU. Somehow—sources credit Marty Ginsburg with digging out the quote—Clinton learned that Ginsburg’s bête noire Dean Erwin Griswold of Harvard had called her the Thurgood Marshall of the women’s movement. She sounded good, Clinton admitted to Bernie Nussbaum, but the president had heard she was a “cold fish.” “Well,” said Nussbaum, “did I mention that I had dinner with her three weeks ago? Her husband called, and I knew what they were doing, but I had dinner with her and she’s actually very nice.”
So, Nussbaum says, he called Ginsburg to come to the White House. “Oh, no,” the judge said. “We’re just back from Vermont, and I have informal clothes on.” It was Sunday, after all. “Not to worry,” Nussbaum assured her. “The president will be coming back from playing golf! I’m sure you don’t have to worry.” He went to the Watergate to pick her up. She had on perfectly respectable slacks, Nussbaum says, and some kind of a top. Just not what you’d ideally choose to go to the White House in.
When they arrived at the Residence in the White House, standing at the end of a long hallway, the president emerged, impeccably dressed in a navy blue suit, shirt and tie. That Sunday, Bill Clinton decided on church rather than golf. “Bernie, what have you done to me?” she asked. “Don’t worry,” he answered the famously impeccable dresser from the D.C. Circuit. “Everything is going to be fine.”
An hour and a half later, the president called to tell Nussbaum they were finished talking and he could take Ginsburg back to the Watergate.
When Nussbaum circled back to the White House, Clinton said he’d made his choice. The two former law professors had talked mostly about her children and other kinds of personal things, nothing serious. “I’ll call her after the basketball game,” which was about to start, Clinton blithely announced. Nothing Nussbaum could say would get him to act sooner. But knowing that Ginsburg must be in purgatory, Nussbaum called her himself. He couldn’t tell her she’d been chosen, but he said what he could. “Ruth,” he said, “I don’t know what time you go to bed normally, but don’t turn in early tonight.”
And he says he heard her begin to cry.
PLAY BALL
The next day the tall president and the judge who did not reach his shoulder appeared in the Rose Garden for the announcement. Ginsburg had on a natty blue coat dress with a big blue ribbon adorning her customary ponytail. She thanked many people. She thanked the women’s movement and the racial movement from which it sprang. Finally, she remembered her mother and said she hoped she’d be all that her mother would have been had she lived in an age when women can aspire and achieve and daughters are cherished as much as sons.
Once nominated, “there was no chance, zero, that she would fail to be confirmed,” says Clinton’s advisor Joel Klein, who had the job of shepherding her through the process. She had racked up a relatively centrist record on the D.C. Circuit, with decisions tough on crime and sometimes in favor of business. Republicans had already greeted the appointment with praise. And, as usual, her calm and precise demeanor at the introduction was universally acclaimed. But Ruth Bader Ginsburg was obsessed. “She prepared for those hearings as if it was going to be 51–49,” Klein recalls. She took to phoning him at all hours of the day or night. What if they ask this? What if they ask that?
Since the Supreme Court candidate Robert Bork told the Senate about his legal philosophy and went down in flames in 1987, all the players in the Supreme Court confirmation business have understood that the rule is to say nothing. Or at least give the smallest possible answers you can get away with. Judge Bork’s experience gave rise to a verb, “borking,” for killing a nominee by letting him expand upon his weirdly marginal beliefs. Ever since, administrations have instructed their nominees to plead the confirmation equivalent of the Fifth Amendment: I respectfully refuse to answer on the grounds that it might come up in a case that might come before me. “No one ever lost by saying nothing,” Klein remembers.
Joel Klein tried, but she gave her minders fits. On July 14, the White House counsel Ron Klain wrote to Clinton’s advisor David Gergen that he expected trouble in the hearings. “She has an instinct for defending some rather extreme liberal views” when asked about the ACLU, Klain said. “She also relishes defending the ACLU as an institution, and its importance in American society.” And she takes forever to answer. And she nitpicks the questions. Don’t tell her what we want her to do, though, Klain continued. She does not see her interests as the same as ours.
As it turned out, she was quite circumspect about her judicial views in the hearings themselves. But despite her unexpected compliance, her confirmation hearings actually tell a lot about her. For one thing, it quickly became clear—as a T-shirt given to her by the National Association of Women Judges would later say—“I’m Ruth, not Sandra.” (The judges also gave O’Connor the companion T, “I’m Sandra, no
t Ruth.”) The Second WOTSC sounded a lot more liberal than her sister in law. And on stuff that matters.
In the 1987 affirmative action case Johnson v. Santa Clara County, O’Connor had given Justice Brennan fits, insisting that an employer with an affirmative action plan must admit that it previously probably violated the Civil Rights Act. (Brennan had the votes, so O’Connor’s was only a concurrence, but still.) When asked what she thought about that test for affirmative action, Ginsburg agreed with Brennan: “Sometimes it would be better for society if we didn’t push people to the wall and make them say, yes, I was a discriminator,” she testified. “In place of a knock-down-drag-out fight, it might be better to pursue voluntary action, always taking into account that there is a countervailing interest… .” Ginsburg shows a willingness to push private institutions such as employers to take up the burden of making the workplace better.
She also thought the harsh restrictions on women in the new abortion order since Casey were inconsistent with abortion rights laid down in the earlier cases: “So I must say yes, the … decisions are in tension, and I expect that the tension is going to be resolved sooner or later.” In a less guarded moment in her Madison Lecture, she had already expressed her opinion of the plurality opinion that sustained the onerous restrictions upheld in Casey: “those Justices did not closely consider the plight of women without means to overcome the restrictions” when they accepted provisions of the Pennsylvania law that clearly violated Roe v. Wade.
While disagreeing with O’Connor on the substance of particular decisions, she also claimed O’Connor as a model on the big question of constitutional interpretation in general. Insofar as she had an overarching concept of the Constitution, O’Connor embraced a kind of moderate social analysis in deciding cases that made a claim for new rights. While not eager to overturn precedent, she was willing to consider whether the social concept of rights in a particular area had changed. She thought the Court had some obligation to honor people’s expectations of how they would be able to live their lives. She signaled this open-mindedness early on when she cast the decisive fifth vote to integrate the all-female nursing program in Hogan v. Mississippi. Regardless of what the drafters had been thinking about sex discrimination in 1867, when they drafted the Fourteenth Amendment after the Civil War, by 1981, Justice O’Connor believed, people expected some restraints on arbitrary divisions by sex. This openness distinguished her from Justice Scalia, who would mostly stop the clock when the ink was dry on the Constitution.
In 1989, Justice Scalia had tried his hand at sneaking his rule of strict interpretation into a plurality decision. Traditional practices, he suggested, could not be undone by newly developed claims of right. Scalia’s time travel would, needless to say, undo most of the jurisprudence of the prior six decades. But O’Connor and Kennedy had both called him on it, reducing his support for the footnote coup to a minority of two. In her hearings, Ginsburg embraces the O’Connor position on constitutional interpretation, a position that allows the Court a fair amount of latitude for bringing the Constitution out of the periwig age. Going up to the high court, the Second Woman agreed with the First that the Constitution needed to ride the train to the present world.
Still, their visions of the present world were very different. Not because they were living in different worlds; they were not. Their lives were actually so similar that a certain amount of Sandra/Ruth confusion might be understandable. They were only three years apart in age. By 1993, they were both rich and richly privileged. Ruth lived in the luxury Watergate apartment complex and Sandra in Chevy Chase. Children grown and husbands earning good money, they would often see each other at Washington National Opera performances or at a dinner for the Washington National Opera Lawyers’ Committee. When not on the bench they traveled around, giving speeches and classes in nice places such as Florida and Salzburg.
In the confirmation process, it emerged that Ginsburg had long tried to see a world beyond her privileged surroundings. “One of the things that I have done every other year with my law clerks, more often, if they are so inclined,” she testified, “is to visit the local jail and Lorton Penitentiary, which is the nearest penitentiary. We visited St. Elizabeth’s, the facility for the criminally insane, when it was a Federal facility… . I do that to expose myself to those conditions, and also for my law clerks. Most of them will go on to practice in large law firms specializing in corporate business, and won’t see the law as it affects most people. That is one of the things I do to stay in touch.”
Even though the White House managed to control her inclination to extoll the ACLU in her hearings, Ginsburg’s opponents from the right correctly figured out that the mild-mannered feminist with the history of occasional conservative votes on the appeals court would be bad for them. They were not happy with their inability to get any traction against her. In a heated exchange with the chairman of the Conservative Caucus, Howard Phillips, Senator Orrin Hatch made clear the congressional Republicans’ position in those early days of the Clinton administration. They had lost the election of 1992 and they would not fight Ginsburg’s nomination: “So don’t try and change the Supreme Court in the sense of politicizing it and electing people who will be prolife,” Hatch told Phillips. “We now have a President who believes this way and he has picked a person who believes this way, and he has a right to do so and that is the point.”
The vote was 96 to 3.
AT HOME IN HER CHAMBERS
The new justice was novel to the Court in more ways than just her newness. Previous justices had always resigned themselves to the lousy chambers available to the newest member in order to be on the first floor, where all the other justices were. Not Ginsburg. She willingly paid the price of distance from her colleagues for much more gorgeous quarters on the isolated second floor. Then she broke with all existing Court decorating styles, with sheer curtains, a light-colored plain carpet, and the iconic mid-century modern Eero Saarinen Tulip Table beneath modern pictures borrowed from the National Gallery and from her own collection. Her office would be contemporary and luxurious, like her home.
And filled with family. To “Justice Ginsburg, the clerks were family,” her first Supreme Court clerk, Margo Schlanger, says. After all, she picked them like family. First, like family, they had to resemble her, not physically, but in coming from somewhere in the vicinity of first in their class. Margo Schlanger was at Yale, which, famously, does not rank its students, but she was at the top of her class and did win the Vinson Prize for excellence in clinical casework and edit the Law Journal, a dead giveaway. Yalie David Schizer, also at the top of the class, edited the Law Journal too. Sean Donahue graduated with high honors from Chicago, and David Post was summa at Georgetown. Exactly like Ruth, Alexandra Shapiro was first in her class at Columbia. But anyone who gets into the Supreme Court clerk pool is likely to have great paper. Ruth was looking for something much more basic. She wanted relatives. It was well known among the clerks that Ginsburg didn’t, as the Chicago machine pol famously said, “want nobody nobody sent.”
Yale Law Journal’s Schlanger came from … her father Michael Schlanger, who grew up with Marty Ginsburg on Long Island. Their families belonged to the same golf club. And for years after they all grew up, Margo’s father, a New York lawyer, and Martin Ginsburg, then a New York lawyer, would go out a couple times a year and play golf. Offspring of the handful of female students in Ruth’s Class of ’59 at Columbia Law School turned up with clerkships—whether it was David Goldberg in her Circuit Court days or David Schizer at the Supreme Court. All the clerks in 1991 knew Sean Donahue had an edge for Ginsburg’s 1992 Circuit Court clerkship. He was a classmate of James Ginsburg at the University of Chicago Law School. (Even before she went up, her Circuit Court clerkships often led to a berth on the Supreme Court; Goldberg with Souter and Donahue with Stevens, for example.) Her strategy was to get clerks from people whose ties to her were deeper and more important than just regular reference writers. All the candidates were elite;
she was just reproducing her trusted family circle.
Perhaps her favorite in those early years was David Post, who came back to her Supreme Court chambers after he had clerked for her on the lower court. Post’s special appeal was that he, like Stephen Wiesenfeld, broke the sex-role-stereotype mold. When his first child was young, he took on the primary parenting role so his wife could work. “That was the best career move I could have made,” Post says, because it made him so desirable for the first Ginsburg clerkship. When he went for the second round, he was already tending his second child, which he did throughout his clerkship. “She was the best boss you could have wished for,” he says. “She did not care if you were there early or late or at all. As long as you got the work done.”
On so many fronts, ties to Ruth Bader Ginsburg were ties that bind. In April 1993, she found out from Stephen Wiesenfeld that Baby Jason was applying to law school. Ruth advised him to send Jason to her daughter Jane at Columbia. When Wiesenfeld thought a letter from Ginsburg might motivate his son, she wrote to Jason directly: “Dear Jason, I have the good news from your father that you are applying to law school. My daughter, Jane, who now teaches at Columbia Law School, would be glad to talk to you.” She corrected Jason’s application essay. A year later, she called to congratulate Stephen on his son’s acceptance. “Thank you for your phone call,” Stephen wrote. “Jason was absolutely thrilled with his acceptance at Columbia.” The stories are legion. One year she took all her clerks who had married or become engaged to each other to the fancy D.C. restaurant Asia Nora for dinner on Valentine’s Day. After dinner they were presented with fortune cookies with love poems inside.
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