Notorious RBG

by Irin Carmon

MILITANT FEMINIST INTERPRETATIONS

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  Sometime in the seventies, RBG had been interviewed for a federal district court judge position. The screening committee told her she wasn’t qualified because she had no experience in financial securities. “I wonder how many gender-discrimination cases they have handled,” RBG retorted, but only later, to her friend the legal reporter Nina Totenberg.

  Anyway, RBG didn’t want to be a district court judge, the evidence-heavy first stop for any federal suit. She was more interested in the broader legal questions raised by federal appeals courts. The Supreme Court only takes about seventy-five cases a year, out of ten thousand it is asked to hear, so appeals court judges just below it are often the final word on the law. Joining such a court had long involved knowing the right guy, or supporting the right guy’s election. Even after clearing that hurdle, old-boy network bar associations guarded the doors. No wonder that when Jimmy Carter became president in 1977, just one woman served as an appeals court judge.

  The Carter administration was determined to do better. Feminist lawyers scrambled to help, forming a new organization to vet judicial candidates on their own metric of commitment to equality. Suddenly, RBG knew a woman. The new group’s president was Lynn Hecht Schafran, who had been RBG’s Columbia Law School student and ACLU intern.

  At Columbia in 1980 Columbia Law School

  As she applied for judicial positions on both the Second Circuit, close to home, and the D.C. Circuit, RBG knew her feminist past might be held against her. In notes to herself labeled “Notes from 2d Circuit Interview,” a whole page preemptively addressed any issues that might come up about “bias based on experiences.” A list of qualities RBG drew up to describe herself sold the star litigator rather short. It focused not on her brilliant strategy or accomplishments but on her “high capacity for sustained work—accustomed to long hours, homework, extending day as long as necessary to accomplish task needed to be done.” She bloodlessly referred to her “high quality standards for own work product” (“my own sternest critic”) and put near the bottom that she was a “good (sympathetic) listener.” Overall, RBG wrote, “I very much want to be considered on the basis of whatever merit I have, not on the basis of my sex, or views of people who are not in a very good position to evaluate my performance and potential.” To paraphrase Sarah Grimké, she just wanted the committee to take their feet off her neck.

  RBG did not make the cut for the Second Circuit, apparently because she had applied to two courts, despite being assured it wouldn’t disqualify her. Her letters at the time show her disappointment. “I am heartened by the people and groups who have questioned the ‘merit’ system as it appears to be working (or not working) in some areas of the country,” she wrote feminist lawyer Diane Blank in March 1979. Women in the law who were her protégées or admirers rallied to RBG’s side. At least one was inside the Carter administration.

  “I cannot exaggerate the feeling among women lawyers that all increases in numbers or victories are pyrrhic if Ruth is not appointed,” wrote Assistant Attorney General Barbara Babcock to Attorney General Griffin Bell on March 12. “It will be viewed as a slap in the face that a woman who is so well qualified, and more than any woman applicant in the country, has ‘paid her dues,’ is not chosen.” Babcock sent a blind carbon copy to RBG. Within a month, Ruth Bader Ginsburg’s name was before the Senate Judiciary Committee.

  RBG’s fears that her women’s rights work would be held against her were briefly borne out. Representative John Ashbrook, a conservative Ohio congressman, complained that she had “militant feminist interpretations.” Ashbrook’s words, RBG wrote her old law professor Herb Wechsler, were a “gross distortion of my views, testimony and articles, but I doubt he cares what I did say or write.” Luckily, Ashbrook, as a member of the House, did not get a vote. In May 1979, Nina Totenberg rallied to her side in the pages of Legal Times. “Republican Judiciary Committee members have dragged their feet, and no firm hearing date has been set,” Totenberg wrote. “The reason is that the nominee is not a he, but a she—and she is the architect of the legal strategy for the women’s movement.”

  Senate consent letterLibrary of Congress Manuscript Division

  But in the end, only legendary segregationist senator Strom Thurmond voted against her in the Judiciary Committee. In the full Senate, RBG was confirmed unanimously on June 18, 1980. She didn’t forget the students and feminist lawyers who had gotten her there. Her former Columbia Law mentee Diane Zimmerman remembers the exuberant party thrown by students and faculty. RBG sat on the floor giggling, eating Kentucky Fried Chicken out of a bucket.

  THE WOMEN ARE AGAINST HER

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  Another, more staid celebration was held after RBG’s swearing-in. She asked Gerald Gunther, her beloved Columbia Law professor who had had to blackmail a judge to hire her as a clerk, to speak. Gunther, the biographer of Judge Learned Hand, told the assembled that RBG would be a judge like Hand, “genuinely open-minded and detached,” and “heedful of limitations stemming from the judge’s own competence.” Sure, said Republicans and Democrats alike, elbowing him knowingly. The card-carrying member of the ACLU was going to be a judicial moderate?

  Gunther bet the skeptics five dollars that in a couple of years, RBG would “widely be seen as the most independent, thoughtful, modest judge on the bench,” he later wrote. Within a couple of years, Gunther got a five-dollar bill in the mail, along with a clipping from the Washington Post describing RBG as a solid centrist.

  RBG had gotten onto the D.C. Circuit just under the wire of the Carter presidency. A year into her term, it was clear she was a long way from the feminist law world. The Reagan and Bush years went on to stack the D.C. Circuit with staunch conservatives like Antonin Scalia, Kenneth Starr, Robert Bork, and Clarence Thomas. Her particular appeals court mostly oversaw federal agencies, and the work was often so intricately boring that Marty joked that most cases involved the Federal Energy Regulatory Commission. Sometimes called the second most important court in the country, the D.C. Circuit was also unmistakably a pipeline to the Supreme Court.

  The new title did not erase some of the old indignities, however. At RBG’s twenty-fifth Harvard Law School reunion, someone tried to organize the “members of the class and their wives” in a group photograph. “What do you mean, ‘wives’?” demanded RBG. At cocktail parties, when the host would introduce someone to “Judge Ginsburg,” a hand was usually outstretched to Marty.

  As the eighties wore on, some of RBG’s D.C. Circuit clerks had trouble even remembering that RBG had made her name litigating women’s rights. “She was widely regarded not as a ‘women’s’ judge, much less a ‘political’ judge, but as a judge’s judge,” two of her former clerks, David and Susan Williams, later wrote, as if being a “women’s judge” was something to shrink away from. RBG saw the role of an appeals court judge as fundamentally different than her old job; she was to follow precedent, not try to change it. And on a court where most decisions were made on a panel of three, RBG developed her fixation on compromise and collegiality.

  “I don’t see myself in the role of a great dissenter and I would much rather carry another mind even if it entails certain compromises,” RBG said at a roundtable on judging in 1985. “Of course there is a question of bedrock principle where I won’t compromise,” she added, but she had “learned a lot about other minds paying attention to people’s personalities in this job. I take that into account much more than just the ideas that I was dealing with in what I did before I came to the bench.” RBG even tried to convince her fellow judges that when they all agreed on an opinion, they should leave off the name of the author entirely so the court could speak in a single voice. None of them liked that idea.

  As a federal appeals court judge in 1984 Getty Images/Terry Ashe

  RBG’s image as a moderate was clinched in March 1993, in a speech she gave at New York University known as the Madison Lecture. Sweeping judicial opinions, she told the audience,
packed with many of her old New York friends, were counterproductive. Popular movements and legislatures had to first spur social change, or else there would be a backlash to the courts stepping in. As case in point, RBG chose an opinion that was very personal to plenty of people listening: Roe v. Wade.

  The right had been aiming to overturn Roe for decades, and they’d gotten very close only months before the speech with Planned Parenthood v. Casey. Justices Anthony Kennedy, David Souter, and Sandra Day O’Connor had instead brokered a compromise, allowing states to put restrictions on abortion as long as they didn’t pose an “undue burden” on women—or ban it before viability. Neither side was thrilled, but Roe was safe, at least for the moment. Just as feminists had caught their breath, RBG declared that Roe itself was the problem.

  If only the court had acted more slowly, RBG said, and cut down one state law at a time the way she had gotten them to do with the jury and benefit cases. The justices could have been persuaded to build an architecture of women’s equality that could house reproductive freedom. She said the very boldness of Roe, striking down all abortion bans until viability, had “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

  This analysis remains controversial among historians, who say the political process of abortion access had stalled before Roe. Meanwhile, the record shows that there was no overnight eruption after Roe. In 1975, two years after the decision, no senator asked Supreme Court nominee John Paul Stevens about abortion. But Republicans, some of whom had been pro-choice, soon learned that being the anti-abortion party promised gains. And even if the court had taken another path, women’s sexual liberation and autonomy might have still been profoundly unsettling. Still, RBG stuck to her guns, in the firm belief that lasting change is incremental.

  For the feminists and lawyers listening to her Madison Lecture, RBG’s argument felt like a betrayal. At dinner after the lecture, Burt Neuborne remembers, other feminists tore into their old friend. “They felt that Roe was so precarious, they were worried such an expression from Ruth would lead to it being overturned,” he recalls. Not long afterward, when New York senator Daniel Patrick Moynihan suggested to Clinton that RBG be elevated to the Supreme Court, the president responded, “The women are against her.” Ultimately, Erwin Griswold’s speech, with its comparison to Thurgood Marshall, helped convince Clinton otherwise. It was almost enough for RBG to forgive Griswold for everything else.

  A FULLY ADULT HUMAN, RESPONSIBLE FOR HER OWN CHOICES

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  As word leaked out of Clinton’s pick for the Court, the press struggled to figure RBG out. Was she some sort of flaming feminist? But what, then, explained her baffling D.C. Circuit record? A Legal Times study in 1988 found that RBG had voted with the famously conservative judge Robert Bork in 85 percent of the cases where they’d been on a panel together, compared with 38 percent of the time she voted with a fellow Carter appointee. And yet, six years earlier, when Ronald Reagan had nominated Bork to the Supreme Court, liberals had managed to get him tossed out of the running. (Senator Ted Kennedy had warned from the Senate floor that “Robert Bork’s America is a land in which women would be forced into back-alley abortions” and where “blacks would sit at segregated lunch counters,” among other horrors.)

  BusinessWeek, at least, comforted its readers with the assurance of one Washington lawyer that the nominee “harbors no animosity towards Corporate America.” Chicago Tribune columnist Clarence Page asked, “Is Ruth Bader Ginsburg another Thurgood Marshall or another Clarence Thomas?” He did concede that RBG was generally thought to be a “sweet lady.” Harvard Law professor Alan Dershowitz, who had taught alongside Breyer, begged to differ. Cherry-picking anonymous reviews for his nationally syndicated column, Dershowitz said lawyers found her a “picky,” “impatient,” and “schoolmarmish” judge. (As of this writing, no one has come up with a male counterpart to “schoolmarmish.”) Dershowitz claimed that RBG’s “reputation among her colleagues—judges, law clerks and lawyers—is that she is a ‘difficult person,’ who alienates many of those around her.”

  Comparing RBG with Thurgood Marshall, said Dershowitz, was “denigrating the memory of a hero,” because after all, she had only “argued a handful of appeals at a time when women’s rights were voguish and certainly not career-threatening.” Marshall had died five months earlier and could not be reached for comment. Another liberal lion and ally of RBG’s high-court litigation, retired justice William Brennan, wrote RBG privately. “The president could not have made a better choice,” wrote Brennan, by then nearing ninety. RBG replied, “Dear Bill, I love you! Pray for me, Ruth.”

  Now came what Clinton’s staffers feared would be the hard part: getting a former feminist litigator and ACLU board member confirmed by the Senate. “Committee Republicans are looking for the letters that the President received on behalf of Ginsburg. They will not get same,” wrote one Clinton administration official in notes from a meeting. “Rumor is that some abortion rights zealot in the White House advised Marty Ginsburg to start a campaign to overcome questions about her position on choice.” In prep sessions, RBG was warned that she would be held accountable for anything the ACLU had ever done and was advised on how to distance herself. “I said, ‘Stop, because I will not do anything to disparage the ACLU,” RBG said later. “And so they grudgingly gave up.”

  At her confirmation hearings in 1993, RBG holds up her grandson’s work. Getty Images/Terry Ashe

  In the end, in the four July days in which her nomination was considered, no one asked about the ACLU. The Senate was controlled by Democrats. After the pitched battles over Bork and Thomas, Republicans didn’t seem to have much appetite for a fight. Two female senators had even joined the committee in the two years since Anita Hill, who had accused Thomas of sexual harassment, had been grilled by a panel of white males.

  The country was introduced to RBG’s slightly alien, flat cadence, stammering out two or three words at a time punctuated by perplexing silences in the middle of a sentence, as if she were reading aloud in a language not her own. RBG told charming and self-deprecating stories about her family, holding up a book made by Jane’s son Paul called My Grandma Is Very Special. Senate Judiciary Committee chairman Joe Biden commented, “I will tell you, Paul, the handwriting is good, the pictures are beautiful and you don’t need a publisher.”

  Her former client Stephen Wiesenfeld testified warmly on RBG’s behalf, and Biden noted that he, like Wiesenfeld, had been a widowed father. And at Senator Ted Kennedy’s prompting, RBG talked about some of the sexist slights she’d experienced over the years.

  Strom Thurmond did press RBG on abortion. Wouldn’t she agree that the judges in the Casey decision cared more about public opinion than what was legally right? RBG replied evenly, “I think that every justice of the Supreme Court and every federal judge would subscribe to the principle that a judge must do what he or she determines to be legally right.”

  “You are good, judge,” Biden cackled. “You are real good.”

  Years later, during John Roberts’s close-lipped confirmation hearings, Republicans would cite Ginsburg’s careful answers to more pointed questions. “Time and again, she would say, ‘I would apply the law to the facts of the case to the best of my abilities,’” remembered her clerk Alisa Klein, who sat in on the hearings. “Coming from some people that might be evasive. Anyone who knew her knows that she means what she said.”

  Eventually, conservative women rushed to testify before the Judiciary Committee to register their objections. One said that RBG had “demonstrated and spelled out her avowed devotion to privilege for females,” showing “her tendency to be acutely aware of sex discrimination, not for males, but only for females.” After all those years of being accused of advocating too much for the rights of men, RBG must have had a laugh about that one.

  Swearing-in, 1993Collection of the Supreme Court of the United States<
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  RBG did not apologize for the ACLU, for being a feminist, or for supporting abortion rights. “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity,” she said simply. “It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

  When RBG’s nomination reached the Senate floor, only three senators voted against her.

  A GOOD DAY IN THE WORK OF THE COURT

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  As a new justice, RBG was now allowed into the room where once nine men had met to discuss the fate of the cases she’d argued decades before. She was part of the conference, where the justices shut the door and say what they really think. No one is allowed in this room but the justices themselves—“no secretary, no law clerk, not even a message-bearer,” as RBG put it. Anything that comes out of that confidential meeting comes from one of them. The only record is handwritten notes, if the justices choose to take them.

  A few days after oral argument, the justices meet for this conference to discuss the cases they’ve heard and take a vote. The chief justice sits at the head of one side, and the senior associate justice sits at the other. After the chief justice has summarized the case, the rest will speak their piece in order of seniority. There isn’t much debate that happens in this room, according to RBG, despite the hope of outsiders that the justices might persuade one another at conference. “One justice or another will say, after we’ve talked for several minutes, ‘It will all come out in the writing,’” RBG said. Then the chief justice assigns someone to write an opinion, unless he is in the minority, at which point the responsibility falls to the most senior justice in the majority.