Ruth Bader Ginsburg

Speaker, Title, Party Statements
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order, please. Judge Ginsburg, welcome.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And, believe me, you are welcome here this morning. As I said to you a few moments ago, riding down on the train this morning I had my usual stack of newspapers. I will not name them all for fear of getting in trouble, but one that I had, beyond the Wilmington News Journal, which is the most important paper in America, was the New York Times. And I looked at page 1, and there was no comment about this hearing. I looked at page 2, and there was no comment, and page 3. And I literally thought I had picked up yesterday's edition. Then, as they say, my heart sank when I realized it was page 8 or 10 or 12, which was the most wonderful thing that has happened to me since I have been chairman of this committee: that a major hearing warranted the 8th or 9th or 10th page because thus far it has generated so little controversy. So you are welcome. But the real purpose of today's hearing is to welcome back Arlen Specter. Arlen, welcome. It is so good to have you back. It really is. [Applause.] The CHAIRMAN. I am one of t
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I very much appreciate that, Mr. Chairman. I thought that, being a Senator, I had been a member of that club for some time. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO. YOU have been a member of a different—I won't characterize what the club is you are a member of. Welcome back.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. On a more serious note, today the Senate Judiciary Committee welcomes Judge Ruth Bader Ginsburg, the President's nominee to be Associate Justice of the U.S. Supreme Court. This is a very familiar setting for us. Since I became chairman of this committee 7 years ago, we have now convened hearings on five nominees for the U.S. Supreme Court. The Constitution states clearly that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint * * * judges of the Supreme Court." Clearly the appointment of a Supreme Court Justice is not a Presidential prerogative. The Senate is an equal partner in the process and has significant obligations attendant to its responsibilities. These confirmation hearings are a major part, though not the only part, of the process by which we attempt to fulfill our constitutional responsibility. The nomination of a Supreme Court Justice signals the renewal of a national debate over the meaning of our Constitution—a debate, I might add, that has been going on for over 200 years, without end, and that will go on for another 200 years, I suspect. How will the broad principles embodied in the Constitution— phrases like due process, equal protection, rights retained by the people—how will these and other ennobling phrases in the Constitution be applied to the realities of everyday life? That is the issue which we have been debating and will continue to debate. Profound questions with practical implications have and will continue to confront us, as the judge only knows too well, questions such as: Does religious freedom mean that Jewish-American soldiers cannot wear a yarmulke while on duty despite Army prohibition? Which, obviously, they can now, with certainty. Does liberty mean that each of us can decide, without the Government deciding for us, whom we shall marry, whether we shall marry, where we will live, or whether to have children or choose not to have children? Does the right to own property mean that the Government may not, without compensation, prohibit a property owner from polluting the stream that flows through his or her land? These and hundreds of other thorny issues have no easy answers. There are not even any right answers in the usual sense of that word, but there are valid and varied constitutional approaches to answering them, applied over the last 200 years by Justices on the Court. The constitutional answers to such questions flow from the interpretive method judges apply to cases that come before them. Over the more than two centuries in which our constitutional democracy has endured, our understanding of individual freedom has expanded. This trend is not new. The expansion of notions of liberty and equality began with the birth of this Republic. Our understanding of the Constitution has not been static; rather, it has flowed consistently in the direction of broadening the freedom that Americans have as individuals. The document has remained, as its writers intended, in my view, a flexible and dynamic instrument. Throughout our history, each evolutionary change, though, has brought controversy. Each expansion of individual liberty has ignited resistance from those who prefer the status quo. But in every instance, moving ahead on liberty has proved to be the right thing to do. Removing the barriers of race to full equality generated enough conflict in the 19th century to fuel a bitter and bloody civil war, and resistance has been carried on into our own time. But today it is generally acknowledged, even where it was once most resisted, that reducing the barriers of race has strengthened American society. The granting of more equal rights under the Constitution to women, a change that owes much to the lawyer who is our nominee today, has been similarly controversial. But today, with that process not yet complete, most Americans agree that it has been a change for the better in the life of this society. The Voting Rights Act, which has extended the practical right to vote to millions of formerly disenfranchised Americans, was and remains a source of controversy, even on the Supreme Court itself. But today there are hundreds of minority women and men holding public office where formerly there were few, even in areas where majority voters dominate the rolls, the entire process bringing us closer to the constitutional goal of representative government. The controversy that flows inevitably from change has found its way into these hearings in the past, into the confirmation process in the past decade-and-a-half. But it does not alter in any sense what we plan on doing here today. Our task today, as in all Supreme Court confirmation hearings, is to consider the character and qualities and the judicial philosophy of Ruth Bader Ginsburg. Judge Ginsburg comes before the committee with her place already secured in history. In the 1970's, Judge, you argued a series of landmark cases that changed the way our laws could distinguish legally between women and men, and you have significantly narrowed the circumstances under which distinctions among Americans may be made. You have already helped to change the meaning of equality in our Nation. Now, as you face a new opportunity to help shape the future of America, we welcome you, and we invite you—and I personally invite you, Judge, to share with us and the American people your vision of the shape of the future of America. [The prepared statement of Chairman Biden follows:] PREPARED STATEMENT OF CHAIRMAN BIDEN Today, the Judiciary Committee welcomes Judge Ruth Bader Ginsburg, the President's nominee to be Associate Justice of the United States Supreme Court. This is a familiar setting for us—since I became chairman of the committee seven years ago, we have now convened hearings on five nominees to the Supreme Court. And these confirmation hearings are a major part though not the only part, of the process by which we attempt to fulfill that constitutional duty. The nomination of a Supreme Court Justice signals the renewal of a national debate over the meaning of our constitution: How will the broad principles embodied in the constitution—phrases like "due process," "equal protection" and "rights retained by the people"—be applied to the realities of everyday life? Profound questions with practical implications have and will continue to confront us: Does religious freedom mean that a Jewish American soldier cannot wear a yarmulke while on duty despite an army prohibition? Does "liberty" mean that each of us can decide—without the government deciding for us—whom to marry, where to live, or whether to have children or use contraceptives to avoid having them? Does the right to own property mean that the government may not, without compensation, prohibit a property owner from polluting a stream that flows through his or her land? There are no easy answers to such questions—there are not even any "right" answers in the usual sense of the word; but there are valid and varied constitutional approaches to answering them, and the constitutional answers to such questions flow from the interpretive method justices apply to cases that come before them. Over the more than two centuries in which our constitutional democracy has endured, our understanding of individual freedom has expanded. This trend is not new: the expansion of notions of liberty and equality began with the birth of the republic. Our understanding of the constitution has not been static; rather it has flowed consistently in the direction of broadening the freeedoms of Americans. The document has remained, as its writers intended, a flexible and dynamic instrument. Throughout our history, each evolutionary change has brought controversy; each expansion of individual liberty has ignited resistance from those who prefer the status quo—but in every instance, moving ahead on liberty has proved to be the right thing to do: Removing the barrier of race to full equality generated enough conflict in the 19th century to fuel a bitter and bloody civil war, and resistance has been carried into our own time. But today it is generally acknowledged, even where it was once most resisted, that reducing the barriers of race has strengthened American society. The granting of more equal rights under the constitution to women—a change that owes much to the lawyer who is our nonimee today—has been similarly controversial. But today, with that process not yet complete, most Americans agree that it has been a change for the better in the life of our nation. The voting rights act, which has extended the practical right to vote to millions of formerly disenfranchised Americans, was and remains a source of controversy, even on the Supreme Court itself; but today there are hundreds of minority women and men holding public office where formerly there were few—even in areas where majority voters dominate the rolls—bringing us closer to the constitutional goal of representative government. The controversy that flows inevitably from change has found its way into the confirmation process. But it does not alter in any sense what we do here. Our task today—as in all Supreme Court confirmation hearings—is to consider the character, the qualities and the judicial philosophy of Ruth Bader Ginsburg. Judge Ginsburg, you come before the committee with your place in history already secure. In the 1970's you argued a series of landmark cases that changed the way our laws could distinguish between men and women. You have already helped to change the meaning of equality in our nation. Now, as you face a new opportunity to help shape the future of America, we welcome you and we invite you to share with us and the American people your vision of the shape of that future. The CHAIRMAN. I yield now to my colleague, Senator Hatch, the ranking member, who I would also like to publicly thank for expediting this process. As all of my colleagues know, if any of the members in this committee, and particularly the ranking member, concluded that it was not appropriate to move as rapidly as we have, under the Senate rules that could easily be done. It could be slowed. The Senator has been totally and completely cooperative from the outset. He has been a man of his word in suggesting that he would move where there was no controversy from his perspective, would move judiciously, warning me that there may be future occasions when he might not be ready to be so cooperative. But I thank him for his cooperation, and I appreciate it very much.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, thank you, Senator Biden, for your kind words, and welcome, Judge Ginsburg, to the committee. We are very happy and pleased to have you here and to finally have these proceedings start. I want to personally pay tribute to my colleague, Senator Specter. We are happy to have him back and happy to have him in such good health and good condition. I do think he could have gotten a little better Pennsylvania hat than that one myself.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And I wish you would fold the brim a little bit, Arlen.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. At least curve the brim, Arlen. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I want to congratulate you, Judge Ginsburg, for this wonderful opportunity to be Associate Justice of the Supreme Court. You have had a distinguished career in the law. You have been a law professor and pioneering advocate for equal rights for women, and for over 13 years, you have served as a thoughtful member of the Court of Appeals for the District of Columbia Circuit. You have been nominated to replace a really fine member of the Court, a distinguished public servant and patriot, Justice Byron White, a person I have had a personal, strong friendship and relationship with, who I think is a great Justice. And I pay him tribute and wish him well as he enters into a well-deserved retirement. Judge Ginsburg's ability, character, intellect, and temperament to serve on the Supreme Court are not, in my mind, in question. I don't have any doubts at all about that. I have been favorably impressed with Judge Ginsburg for some time. A Supreme Court Justice, in my view, however, must meet an additional qualification. He or she must understand the role of the judiciary, including the Supreme Court, in our system of government. Under our system, a Supreme Court Justice should interpret the law and not legislate his or her own policy preferences from the bench. The role of the judicial branch is to enforce the provisions of the Constitution and the laws we enact in Congress as their meaning was originally intended by the Framers. Any other philosophy of judging requires unelected Federal judges to impose their own personal views on the American people in the guise of construing the Constitution and Federal statutes. There is no way around this conclusion. Such an approach is judicial activism, plain and simple. And it is wrong, whether it comes from the political left or whether it comes from the political right. Let there be no mistake: The Constitution, in its original meaning, can be readily applied to changing circumstances. That telephones did not exist in 1791, for example, does not mean that the fourth amendment's ban on unreasonable searches is inapplicable to a person's use of the telephone. But while circumstances may change, the meaning—the principle—of the text, which applies to those new circumstances, does not change. Reasonable jurists can sometimes disagree over what a particular constitutional or statutory provision was intended to mean and over how such meaning is properly applied to a given set of facts. But if the judicial branch is not governed by a jurisprudence of original meaning, the judiciary usurps the role the Constitution reserves to the people through their elected representatives. When judges depart from those principles of construction, they elevate themselves not only over the executive and legislative branches, but over the Constitution itself and, of course, over the American people. These judicial activists, whether of the left or right, undemocratically exercise a power of governance that the Constitution commits to the people and their elected representatives. And these judicial activists are limited, as Alexander Hamilton shrewdly recognized over 200 years ago, only by their own will—which is no limit at all. As a consequence of judicial activism, we witnessed in an earlier era the invalidation of State social welfare legislation, such as wage and hour laws. Since the advent of the Warren court, judicial activism has resulted in the elevation of the rights of criminals and criminal suspects and the concomitant strengthening of the criminal forces against the police forces of our country; the twisting of the constitutional and statutory guarantees of equal protection of the law such that reverse discrimination often results; prayer being chased out of the schools; and the Court's creating out of thin air a constitutional right to abortion on demand, to just cite a few instances and a few examples. One of the objectives of the judicial activists for the future is the elimination of the death penalty. The Constitution, as it has been amended through the years, in its original meaning, is our proper guide on all of these issues. It places primary responsibility in the people to govern themselves. It provides means of amendment through the agency of the people and their elected representatives, not by a majority of the Supreme Court. That is why appointing and confirming judges and Supreme Court Justices who won't let their own personal policy preferences sway their judgment is so important. A President is entitled to some deference in a selection of a Supreme Court Justice. President Clinton and I are unlikely to agree on the person who ought to be nominated. But so long as the nominee is experienced in the law, intelligent, of good character and temperament, and gives clear and convincing evidence of understanding the proper role of the judiciary in our system of government, I can support that nomination and that nominee. Moreover, I do not expect to agree with any nominee, especially one chosen by a President of the other party, on every issue before the judicial branch. The key question is whether the nominee can put aside his or her own policy preferences and interpret the Constitution and the laws in a neutral fashion. Finally, I would point out that I disagree very much with some of Judge Ginsburg's academic writings and some views she held prior to ascending to the bench in 1980. I believe that Judge Ginsburg's judicial opinions, however, indicate her understanding that her policy views and earlier role as advocate are distinct from her role as a judge. I will explore that distinction in these hearings. It is my hope that Judge Ginsburg will satisfy this committee that she shares the judicial philosophy of applying the original meaning of our Constitution and laws in the cases which come before her on the Supreme Court, if she is confirmed. [The prepared statement of Senator Hatch follows:] PREPARED STATEMENT OF SENATOR HATCH Thank you, Mr. Chairman. I congratulate the nominee, Judge Ruth Bader Ginsburg, on her nomination to be Associate Justice of the Supreme Court. Judge Ginsburg has had a distinguished career in the law. She has been a law professor and pioneering advocate for equal opportunity for women. For over 13 years, she has served as a thoughtful member of the Court of Appeals for the District of Columbia Circuit. She has been nominated to replace a fine member of the Court, a distinguished public servant and patriot, Justice Byron White. I pay him tribute and wish him well as he enters a well deserved retirement. Judge Ginsburg's ability, character, intellect, and temperament to serve on the Supreme Court are not, in my mind, in question. I have been favorably impressed with Judge Ginsburg for some time. A Supreme Court Justice, in my view, however, must meet an additional qualification. He or she must understand the role of the judiciary, including the Supreme Court, in our system of government. Under our system, a Supreme Court Justice should interpret the law and not legislate his or her own policy preferences from the bench. The role of the judicial branch is to enforce the provisions of the Constitution and the laws we enact in Congress as their meaning was originally intended by their framers. Any other philosophy of judging requires unelected federal judges to impose their own personal views on the American people in the guise of construing the Constitution and federal statutes. There is no way around this conclusion. Such an approach is judicial activism, plain and simple. And it is wrong, whether it comes from the political left or the right. Let there be no mistake: the Constitution, in its original meaning, can readily be applied to changing circumstances. That telephones did not exist in 1791, for example, does not mean that the fourth amendment's ban on unreasonable searches is inapplicable to a person's use of the telephone. But, while circumstances may change, the meaning—the principle—of the text, which applies to those new circumstances, does not change. Reasonable jurists can sometimes disagree over what a particular Constitutional or statutory provision was intended to mean and over how such meaning is properly applied to a given set of facts. But, if the judicial branch is not governed by a jurisprudence of original meaning, the judiciary usurps the role the Constitution reserves to the people through their elected representatives. Alexander Hamilton, an advocate of a vigorous central government, in defending the judiciary's right to review and invalidate the Legislative Branch's acts which contravene the Constitution, made clear that federal judges are not to be guided by personal predilection. He rejected the concern that such judicial review made the judiciary superior to the legislature: "A constitution, is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body * * *. It can be of no weight to say that the courts, on the pretense of a repugnancy [between a legislative enactment and the Constitution], may substitute their own pleasure to the constitutional intentions of the legislature. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislature body. [This] observation * * * would prove that there ought to be no judges distinct from that body." (Federalist 78.) And this commingling of the legislative and judicial functions, of course, would tend to start us down the road to the kind of tyranny the Framers warned about when the separate executive, legislative, and judicial functions are united in the same hands. When judges depart from these principles of construction, they elevate themselves not only over the executive and legislative branches, but over the Constitution itself, and, of course, over the American people. These judicial activists, whether of the left or right, undemocratically exercise a power of governance that the Constitution com- 8 mits to the people and their elected representatives. And these judicial activists are limited, as Alexander Hamilton shrewdly recognized over 200 years ago, only by their own will—which is no limit at all. As a consequence of judicial activism, we witnessed, in an earlier era, the invalidation of state social welfare legislation, such as wage and hour laws. Since the advent of the Warren Court, judicial activism has resulted in the elevation of the rights of criminals and criminal suspects and the concomitant strengthening of the criminal forces against the police forces of our country; the twisting of constitutional and statutory guarantees of equal protection of the law such that reverse discrimination often results; prayer being chased out of the schools; and, the Court's creating out of thin air a constitutional right to abortion on demand to cite a few examples. One of the objectives of the judicial activists for the future is the elimination of the death penalty. The Constitution, as it has been amended through the years, in its original meaning, is our proper guide on all of these issues. It places primary responsibility in the people to govern themselves. It provides means of amendment through the agency of the people and their representatives—not by a majority of the Supreme Court. That is why appointing and confirming judges and Supreme Court Justices who won't let their own policy preferences sway their judgment is so important. A President is entitled to some deference in a selection of a Supreme Court Justice. President Clinton and I are unlikely to agree on the person who ought to be nominated. But so long as a nominee is experienced in the law, intelligent, of good character and temperament, and gives clear and convincing evidence of understanding the proper role of the judiciary in our system of government, I can support that nominee. Moreover, I do not expect to agree with any nominee, especially one chosen by a President of the other party, on every issue before the Judicial branch. The key question is whether the nominee can put aside his or her own policy preferences and interpret the Constitution and laws in a neutral fashion. Finally, I would point out that I disagree very much with some of Judge Ginsburg's academic writings and some views she held prior to ascending the bench in 1980. I believe that Judge Ginsburg's judicial opinions indicate her understanding that her policy views and earlier role as advocate are distinct from her role as judge. I will explore that distinction in these hearings. It is my hope that Judge Ginsburg will satisfy this Committee that she shares the judicial philosophy of applying the original meaning of our Constitution and laws in the cases which will come before her on the Supreme Court if she is confirmed. Senator HATCH. NOW, Mr. Chairman, I want to say that I am pleased with this nomination. I am looking forward to these hearings. They are important. This is one of the great constitutional exercises, and I think every Senator here will be asking some very interesting questions. But could I ask for a few more minutes just as a personal privilege?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I want to thank the chairman, and I appreciate the indulgence of my colleagues and the nominee. I believe my colleagues will agree with me that two members of this committee deserve special recognition for their service on this committee and in the Senate. The distinguished Senator from Massachusetts, Senator Kennedy, has been a member of the Judiciary Committee since February 13, 1963—30 years, 5 months, and 1 week of service. This service included 2 years as chairman. I do not mean to age the Senator from Massachusetts, but his service on the committee began so long ago I had to ask the Senate Historical Office to look it up. Fortunately, they did not have to go back as far as the Jurassic period, although he does tend to dwell in that period from time to time. [Laughter.] Nineteen Supreme Court nominations have occurred during this time. Of course, we all know that Senator Kennedy has continued a long and distinguished family tradition of public service. Many Americans have gotten involved in public service as a result of the example of the Kennedy family. But I might add for other history buffs that Senator William E. Borah of Idaho, during his 31 years on this committee from 1909 to 1940, witnessed 22 Supreme Court nominations, a record which Senator Kennedy is now approaching. The Senator from Massachusetts, however, is a mere youngster next to our distinguished colleague, the senior Senator from South Carolina, Strom Thurmond, chairman of this committee for 6 years. I was interested to learn from the Senate Historical Office that Senator Thurmond's service on the committee began after that of Senator Kennedy, on January 16, 1967. Thus, Senator Thurmond has not sat on the committee for as many Supreme Court nominations as Senator Kennedy. He missed the Abe Fortas nomination in committee in 1965, although, as we all know, he was on the committee for Justice Fortas' unsuccessful nomination to be Chief Justice. But Senator Thurmond has been a Member of the Senate longer than any other current Member. He has witnessed 25 nominations as a Senator, beginning with President Eisenhower's nomination of John M. Harlan in January 1955. No other current Member of the Senate has been here for as many Supreme Court nominations. Through nine Presidents, all but one of whom, Jimmy Carter, sent nominees to the Senate, and as Supreme Court nominees and Supreme Court Justices have come and gone, Senator Thurmond has been at his post. Amazingly, I discovered that Senator Thurmond does not hold the Senate record—not yet, anyway. Senator Carl Hayden of Arizona, during his 42 years of Senate service, witnessed 28 Supreme Court nominations. Does anyone doubt that that record one day will fall to South Carolina? Earlier this year, I observed that my friend from South Carolina is a Senator's Senator, a tenacious advocate for the people of his State, the best interests of our country, and the principles he believes in. Now, let me mention something more. Senator Thurmond has served as an inspiration to generations of young people, not just South Carolinians, not just southerners, but young people all over the Nation. These Americans have been spurred to participate in the political life of their communities, their States, and their country by the example of Senator Thurmond's devotion to limited government, free enterprise, a strong national defense, and his deep, selfless love of country. Some of those he has inspired sit behind me. Others he has inspired, like myself, sit on this committee as his colleague, a privilege for which I am very grateful. I thought both of our colleagues deserve some small recognition for their service, and I want to thank Richard A. Baker, the Senate's Historian, and Joanne McCormick Quatannens of his office for their timely help in compiling the details of the service of our two colleagues. And I want to thank my colleagues for this courtesy so I could make these remarks and pay tribute to these two colleagues here today. Thank you, Mr. Chairman. 10
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I want to thank you, Senator. You have just solved a mystery for me. I wondered why Senator Thurmond spent so much time on the floor talking about Abe Fortas. Now I know. He wasn't on the committee. He didn't have a chance to speak in the committee. Now, we are going to go slightly out of order here, and the distinguished chairman of the Finance Committee has the unenviable job of being the Chair of a conference committee that is just putting together the national budget and reconciliation. He is to convene that conference at 11. His distinguished colleague, Senator D'Amato, representing—I am going to figure out the New York connection here in a moment—is also here. So we are going to go with the three introducers now, and then return to Senators Kennedy and Thurmond and work our way through the committee. Senator Moynihan, welcome. It is a pleasure to have you here. The floor is yours.
Senator Daniel Patrick Moynihan (NY)
Senator
(D)
Senator MOYNIHAN. Thank you. Mr. Chairman, Senator Hatch, Senator Specter, I am privileged to introduce and to recommend without reservation Judge Ruth Bader Ginsburg, who is especially qualified to be the 107th Justice of the Supreme Court of the United States. Judge Ginsburg is perhaps best known as the lawyer and litigator who raised the issue of equal rights for women to the level of constitutional principle. She has also distinguished herself in a wide range of legal studies and for the last 13 years has been one of our Nation's most respected jurists on the U.S. Court of Appeals for the District of Columbia Circuit. I must tell you that Senator D'Amato and I take special pride in her nomination. She was born and raised in Brooklyn. The day after her nomination, the front page of the New York Daily News exclaimed: "A Judge Grows in Brooklyn." She attended Cornell where she was elected to Phi Beta Kappa, later Columbia Law School where she was tied for top of her class. Indeed, she actually attended two law schools, beginning at Harvard and finishing at Columbia so that she could be with her husband, Martin, who had returned from Cambridge to begin the practice of law in New York. Never before Ruth Bader Ginsburg had anyone been a member of both the Harvard and Columbia Law Reviews. With such a record, you would think it not surprising that she should be recommended to serve as law clerk to Supreme Court Justice Felix Frankfurter. Neither is it surprising that at that time, a time she has changed, Justice Frankfurter thought it would be inappropriate to have a woman clerk. She clerked for Judge Edmund Palmieri, and then entered the Columbia Law School project on international procedures. She taught at Rutgers Law School, then Columbia, becoming one of the first tenured woman professors in the country, and then became the moving force behind the women's rights project of the American Civil Liberties Union, the prime architect of the fight to invalidate discriminatory laws against individuals on the basis of gender. 11 Her imprint can be found on virtually every gender case which reached the Supreme Court in the 1970's. She herself argued six of the cases before the Court and won five of them. The specifics are well known to members of this honorable committee and will no doubt be discussed in detail. But I would call attention, sir, simply to remarks of Erwin N. Griswold, the former Solicitor General of the United States and dean of the Harvard Law School at the time Judge Ginsburg was there. He spoke at a special session of the Supreme Court commemorating the 50th anniversary of the opening of their new building, as it then was. Dean Griswold spoke of the work of attorneys who had appeared before the Court on behalf of special interest groups, as he termed it, and he said this: I think, for example, of the work done in the early days of the NAACP which was represented here by one of the country's great lawyers, Charles Hamilton Houston; work which was carried on later with great ability by Thurgood Marshall. And I may mention the work done by lawyers representing groups interested in the rights of women of whom Ruth Bader Ginsburg was an outstanding example. It is in that context, Mr. Chairman, that the American Bar Association has given her its highest rating, and she has my most sincere and proud recommendation to this committee. Thank you, sir.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Mr. Chairman. Senator D'Amato.
Senator Al D'Amato (NY)
Senator
(R)
Senator D'AMATO. Mr. Chairman, in the interest of time, let me second the magnificent introduction that the distinguished senior Senator, my colleague Senator Moynihan, has made on behalf of Judge Ginsburg. Let me say that I take very special pride in the fact that the judge grew and flourished in Brooklyn, my home town. Let me also add to this committee that there is no doubt that she has distinguished herself as teacher, lawyer, judge, and parent, with her magnificent and wonderful family here today. While we may not agree with all of the learned judge's decisions, no one can question her honesty, her integrity, her commitment to the process of law, and I commend her for your approval and ask that there be an extension for my written remarks to be included as if read and submitted in their entirety.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection. I thank you very much, Senator. [The prepared statement of Senator D'Amato follows:]
Senator Al D'Amato (NY)
Senator
(R)
PREPARED STATEMENT OF SENATOR ALFONSE M. D'AMATO Mr. Chairman, I am pleased to be here this morning to join with my colleague, Senator Moynihan, to introduce Judge Ruth Bader Ginsburg to this Committee and to our nation. As most of you know, Judge Ginsburg comes to us from the rough and tumble streets of Brooklyn, although her public demeanor would not suggest such a background. However, I wouldn't let her temperament fool you, for I know of no one from Brooklyn who did not know how to stand up for themselves and make their point known. As I stated, Judge Ginsburg was born and raised in Brooklyn during the depression and World War II. Determined to succeed, Judge Ginsburg graduated from Cornell and entered Harvard Law at a time when it was not popular for young women 12 to enter law school. Eventually transferring to and graduating from Columbia Law School, she had a difficult time breaking the "old boy" network that excluded so many other fine law graduates. In true Brooklyn form, though, this did not dissuade her, and through perseverance, she obtained a clerkship with U.S. District Judge Edmund Palmieri. After her clerkship, Judge Ginsburg went on to teach law at Rutgers University, where, during her nine years, she rose to become a full professor. She moved on to Columbia University Law School where she taught another nine years. During those years as a professor, Judge Ginsburg was quite successful before the bench arguing numerous cases, including winning five of six decisions before the Supreme Court regarding sex discrimination. Based on her intellect and ability, she was appointed to the U.S. Court of Appeals for the District of Columbia in 1980. Since her appointment to the federal bench, Judge Ginsburg has written hundreds of decisions. While I may not agree with her on some of her opinions, I have found Judge Ginsburg to be honest to a fault, with the utmost in integrity, a keen mind, and a true belief in the law. No Senator will agree with the opinions of a Supreme Court Justice 100 percent of the time. I know that I will not agree with Judge Ginsburg's decisions all of the time. However, I do know that hers will be the kind of decisions that will be undertaken with deliberate care and that even if I disagree with her, I will be confident that her opinion will not be the result of a rash or ill-thought decision making process. Mr. Chairman, I am pleased, also, to welcome Judge Ginsburg's family—her husband Martin Ginsburg, a Professor of tax law at Georgetown University and a partner in the Washington office of Fried, Frank, Harris, and Shriver; her daughter Jane, a law Professor at Columbia University; her son James, a law student at the University of Chicago and a producer of classical recordings, and her lovely grandchildren. Again, it is my pleasure to introduce Judge Ruth Bader Ginsburg at her confirmation hearings to be an Associate Justice to the United States Supreme Court.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW we will hear from Delegate Eleanor Holmes Norton. We welcome you to the other body, and thank you for coming over.
Rep. Eleanor Holmes Norton (DC)
Ms. Norton.
(D)
STATEMENT OF HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA Ms. NORTON. Thank you, Mr. Chairman. Mr. Chairman, it is my great pleasure to introduce and recommend Judge Ruth Bader Ginsburg to you. Now a resident of my district here in Washington, DC, Judge Ginsburg was born in Brooklyn. Brooklyn natives, of course, have often spread to far corners, like the overseas Chinese, sharing the riches of that borough with places like Washington which thrive on such exports. Judge Ginsburg's service on our U.S. Court of Appeals has been unusually distinguished, a virtually foregone conclusion for any who knew her before her appointment in 1980. I have known Ruth Ginsburg for two decades. As a law professor, civil rights and civil liberties lawyer, she was the chief navigator in the journey that took women, after more than 100 years, into the safe harbor of the U.S. Constitution. When Ruth Ginsburg founded the ACLU women's rights project, today's axiom that the 14th amendment applies to women was not axiomatic at all. As one of Judge Ginsburg's former students has said, "People forget how things were." Judge Ginsburg has spent her life making things how they ought to be. Using her gifted mind, honed by indefatigably hard work, she has used the law, always carefully, always defensibly, for all of those left at the margins, for want of a lawyer or a judge with the brilliance and commitment to pull them mainstream. 13 As a lawyer, she was an activist intellectual who brought grace to both roles. As a judge, Ruth Ginsburg has not only resolved hard cases, she has contributed to legal theory and made collegiality among judges and its effect on the law a new and fascinating subject of scrutiny. Those who have expected great things of Ruth Ginsburg have always gotten what they bargained for. Count on Justice Ginsburg to keep that unbroken record. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very, very much. I know all of you have other duties, and we appreciate your being here. Thank you for your input. And, Pat, I am delighted that you had the opportunity to introduce a woman who saves my daughter Ashley from having to be the second woman nominee to the Supreme Court. Thank you. Now we will return to semiregular order, which is that Senator Kennedy would go next. But our distinguished colleague and ranking member of the Armed Services Committee has to attend a hearing at 11, and Senator Kennedy has graciously suggested that he go next.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you, Mr. Chairman. I wish to thank Senator Kennedy for letting me go at this time. I want to express my appreciation to Senator Hatch for his kind words. He is a great Senator and a great man, and I appreciate what you had to say. We all welcome Senator Specter back, a great Senator and a true patriot of this country. So glad to see you in good health now. Now, Mr. Chairman, today the Senate begins consideration of the nomination of Judge Ruth Bader Ginsburg to be an Associate Justice of the U.S. Supreme Court. If confirmed, Judge Ginsburg will be the 107th person to serve as a Justice, continuing the long tradition of distinguished jurisprudence which began with Justice John Rutledge of South Carolina, who was appointed on September 26, 1789. Although I was not privileged to be in the Senate at that time [Laughter.] Lest anyone have doubts—Judge Ginsburg*s will be the 25th Supreme Court nomination I have reviewed during my nearly 39 years in the Senate. Since its first session in the Royal Exchange Building in New York City in 1790, the Supreme Court has been an indispensable part of our Government, securing individual rights and interpreting the laws of this Nation. Occasionally, however, the Federal courts have gone beyond their constitutional mandate and used their judicial authority to legislate from the bench. I believe that the Hamiltonian vision of the judiciary is a correct one: Judgment, not will, is to be exercised by the judicial branch. Mr. Chairman, we have a very serious responsibility here. Article II of the Constitution confers upon the Senate the duty of giving advice and consent to the President's appointment of Supreme Court Justices. The detailed review of judicial nominations has been assigned by the Senate to the Judiciary Committee. To a great extent, our colleagues who are not on this committee depend 14 upon our work to make their own decisions on a nominee's qualifications to sit on the most important and prestigious court in America. These hearings also give the public an opportunity to see the process at work. Justices occupy a position of immense power and are tenured for life. Furthermore, Justices and other Federal judges are not accountable to the public through the ballot box. It is, therefore, imperative that the Senate exercise its role in the confirmation process with great care, ensuring that the nominee possesses the necessary qualifications to fill this immensely important role. Over the years, I have determined the special qualifications I believe an individual must possess to serve on the Supreme Court, and they are as follows: First, unquestioned integrity. A nominee must be honest, absolutely incorruptible, and completely fair. Second, courage. A nominee must possess the courage to decide tough cases according to the law and the Constitution. Third, compassion. While a nominee must be firm in his or her decisions, they should show mercy when appropriate. Fourth, professional competence. The nominee must have the ability to master the complexity of the law. Fifth, proper judicial temperament. The nominee must have the self-discipline to base decisions on logic, not emotion, and to have respect for lawyers, litigants, and court personnel. Sixth, an understanding of the majesty of our system of government. The nominee must understand that only Congress makes the laws, that the Constitution is changed only by amendment, and that all powers not specifically delegated to the Federal Government are reserved to the States. These are the essential qualities which determine the fitness of an individual to serve on the Court, and it appears to me that Judge Ginsburg possesses them. She has had a distinguished scholastic and legal career and established a reputation as a person who thinks twice before acting—an especially valuable quality in a judge. After 13 years on the D.C. Circuit Court, Judge Ginsburg has written hundreds of opinions, authored numerous articles, and delivered many speeches. I am not in agreement with her on every issue. However, I respect her intelligence and ability, and I look forward to discussing her approach to constitutional issues and reviewing her development on the D.C. Circuit Court. Mr. Chairman, as we begin this hearing, I am reminded of the thoughts conveyed by President Washington to Chief Justice John Jay and the Associate Justices during the first term of the Supreme Court. His comments on the judicial branch remain as insightful and compelling today as when they were first delivered. He stated, and I quote: I have always been persuaded that the stability and success of the National Government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important that the judiciary system should not only be independent in its operations, but as perfect as possible in its formation. Mr. Chairman, I believe this hearing is a continuation of ongoing efforts to create a judiciary which is as perfect as possible. As we 15 pursue this worthy goal, it is incumbent upon the Senate to closely review Judge Ginsburg's qualifications to serve on the highest court in the land. Judge Ginsburg, we welcome you here today and look forward to your testimony. Thank you, Mr. Chairman. [The prepared statement of Senator Thurmond follows:] PREPARED STATEMENT OF SENATOR THURMOND Mr. President, today, the Senate begins consideration of the nomination of Judge Ruth Bader Ginsburg to be an Associated Justice of the United States Supreme Court. If confirmed, Judge Ginsburg will be the 107th person to serve as a Justice; continuing the long tradition of distinguished jurisprudence which began with Justice John Rutledge of South Carolina, who was appointed on September 26, 1789. Although I was not privileged to be in the Senate at that time—lest anyone have doubts!—Judge Ginsburg's nomination will be the 25th Supreme Court nomination I have reviewed during my nearly 39 years in the Senate. Since its first session in the Royal Exchange Building in New York City in 1970, the Supreme Court has been an indispensable part of our government, securing individual rights and interpreting the laws of this Nation. Occasionally, however, the Federal courts have gone beyond their constitutional mandate, and used their judicial authority to legislate from the bench. I believe that the Hamiltonian vision of the judiciary is the correct one: judgement, not will, is to be exercised by the judicial branch. Mr. Chairman, we have a very serious responsibility here. Article II of the Constitution confers upon the Senate the duty of giving "advice and consent" to the president's appointment of Supreme Court Justices. The detailed review of judicial nominations has been assigned by the Senate to the Judiciary Committee. To a great extent, our colleagues who are not on this Committee depend upon our work to make their own decisions on a nominee's qualifications to sit on the most important and prestigious court in America. These hearings also give the public an opportunity to see the process at work. Justices occupy a position of immense power, and are tenured for life. Furthermore, justices and other federal judges are not accountable to the public through the ballot box. It is therefore imperative that the Senate exercise its role in the confirmation process with great care, ensuring that the nominee possesses the necessary qualifications to fill this immensely important role. Over the years, I have determined the special qualifications I believe an individual must possess to serve on the Supreme Court. They are as follows: First, unquestioned integrity. A nominee must be honest, absolutely incorruptible, and completely fair. Second, courage. A nominee must possess the courage to decide tough cases according to the law and the Constitution. Third, compassion. While a nominee must be firm in his or her decisions, they should show mercy when appropriate. Fourth, professional competence. The nominee must have mastered the complexity of the law. Fifth, proper judicial temperament. The nominee must have the self-discipline to base decisions on logic, not emotion, and to have respect for lawyers, litigants and court personnel. Sixth, an understanding of the role of the Court. The nominee must understand that only Congress makes the laws, that the Constitution is changed only by amendment, and that all powers not specifically delegated to the Federal government are reserved to the States. These are the essential qualities which determine the fitness of an individual to serve on the court, and it appears to me that Judge Ginsburg possesses them. She has had a distinguished legal career, and established a reputation as a person who thinks twice before acting—an especially valuable quality in a judge. After 13 years on the D.C. Circuit Court, Judge Ginsburg has written hundreds of opinions, authored numerous articles and delivered many speeches. I am not in agreement with her on every issue. However, I respect her intelligence and ability, and I look forward to discussing her approach to constitutional issues and reviewing her development on the D.C. Circuit Court. Mr. Chairman, as we begin this hearing, I am reminded of the thoughts conveyed by President Washington to Chief Justice John Jay and the Associate Justices dur- 16 ing the first term of the Supreme Court. His comments on the judicial branch remain as insightful and compelling today as when they were first delivered. He stated and I quote: I have always been persuaded that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important that the judiciary system should not only be independent in its operations, but as perfect as possible in its formation. (End of quote.) Mr. Chairman, I believe this hearing is a continuation of ongoing efforts to create a judiciary which is as perfect as possible. As we pursue this worthy goal, it is incumbent upon the Senate to closely review Judge Ginsburg's qualifications to serve on the highest court in the land. Judge Ginsburg, we welcome you here today, and look forward to your testimony. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. I want to extend my appreciation for the kind words of my good friend from Utah, and it is a pleasure to serve on this committee with "Tyrannosaurus" Hatch. [Laughter.] I join in congratulating Judge Ginsburg on her nomination, and in welcoming her before this committee. Nominations to the Supreme Court are among the most important decisions that any President makes, and the confirmation process is one of Congress' most important responsibilities. The Supreme Court is the guardian of our most basic constitutional rights and liberties. The Justices of the Supreme Court have the last word on the meaning of the Constitution; and they are called upon to decide many of the most important and difficult questions of our time: May a State consider the race of its citizens in drawing legislative districts? May a State impose a greater punishment for a crime because the criminal is motivated by racial or religious bigotry? What is the proper boundary between church and state when government furnishes aid to students in religious schools? These are just a few of the questions that the Justices of the Supreme Court decided in the past term. The rules announced by the Court in its decisions affect the daily lives of all Americans. Senators must satisfy themselves that a Supreme Court nominee has the outstanding ability, unquestionable character, and fair and balanced temperament to decide the important and difficult cases that come before the Court. And, no less important, Senators must determine whether a nominee to the Supreme Court possesses a deep understanding and commitment to the fundamental values of liberty, fairness, and equality enshrined in the Constitution. Our constitutional freedoms are the historic legacy of every American. The Members of the Senate have an obligation to ensure that those freedoms are entrusted to women and men on the Supreme Court who will preserve their meaning for future generations. Based on her pathbreaking work as a law professor and a legal advocate for the rights of women, and based on her distinguished career as a Federal appeals court judge, it appears that Judge Ginsburg easily meets these high standards. Her creative strategies to win legal recognition of the right of women to equal protec- 17 tion of the laws have earned her the admiration and respect of every American committed to ending discrimination in our Nation. Her impressive and scholarly work on the Federal appeals court here in Washington has earned her a reputation as one of the very best judges in the United States today. The members of this committee, nonetheless, have a constitutional responsibility to carefully examine Judge Ginsburg's opinions and articles and to ask her about her legal philosophy and approach to the Constitution, to assure ourselves that she deserves the high honor of joining the Nation's highest court. I commend President Clinton for this excellent nomination, and I look forward to Judge Ginsburg's testimony.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Because we went out of order at the outset, the next speaker will be Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Mr. Chairman. Judge Ginsburg, congratulations on your nomination and welcome to these hearings. It has been a long time since a Democratic President has made a Supreme Court nomination. Justice White's resignation means that all of the remaining Justices were nominated by Republican Presidents. This day is welcome, for many reasons. For 12 years, Supreme Court nominees have been sent to this committee in the hope of promoting a political and social agenda directly from the planks of the Republican Party platform. A core element of that agenda was the reversal of Supreme Court decisions in the areas of abortion, civil rights, individual liberties, and the first amendment. Unfortunately, their efforts have met with considerable success. As a result, the Supreme Court today is plagued by a vision of the Constitution which is cramped and narrow. The current Court lacks either the will or the commitment to make the promises and principles of our Constitution a reality for all Americans. This Nation faces difficult—and sometimes divisive—social problems. We need leadership that is inclusive and tolerant. And we need a Supreme Court that is a source of inspiration and moral leadership. Only then will individual liberty, equal justice, and fundamental fairness be a reality for everyday Americans, as we prepare to turn to the 21st century. President Clinton took one large step in that direction by nominating Ruth Bader Ginsburg. No one can seriously claim that the President selected Judge Ginsburg to carry out a political agenda. The President found in Judge Ginsburg the nominee he was searching for, a person of enormous talent and integrity, a generous character, and an unyielding fidelity to the Constitution and the rule of law in the service of society. Judge Ginsburg's record as a litigator is the envy of lawyers throughout the country. She spent the bulk of her career as a lawyer working to secure equal rights for women. She succeeded, due to her comprehensive knowledge of the law and her keen understanding of what would persuade the male members of the Supreme Court. 18 She developed a brilliant litigation strategy, which included at times using men as plaintiffs in gender discrimination suits. This tactic helped the then all-male Supreme Court see that discrimination based on gender was incompatible with the great constitutional principle of equal protection under the law. She showed courage and determination, when opportunities were closed to her due to discrimination against women. She didn't just get angry and resentful. She fought to change the law for the benefit of all women and men. With such an outstanding career as a lawyer, it is no surprise that President Carter selected her for the Federal Bench. Her tenure on the Circuit Court of Appeals for the District of Columbia has distinguished her as one of the country's finest judges. As President Clinton said in introducing her to the Nation, she is "progressive in outlook, wise in judgment, balanced and fair in her opinions." Judge Ginsburg's record is exemplary, and I am frank to say that I expected nothing less in a nomination by President Clinton. But there is still more that I want to know. As an advocate, Ruth Bader Ginsburg pushed the Court to landmark decisions on behalf of women's rights. While she fought for women one case at a time, she had a goal, a vision of a Constitution that protected women against discrimination. While a circuit court of appeals judge, her duty has been to faithfully apply the law as interpreted by the Supreme Court. But, if confirmed as the next Supreme Court Justice, she would have the opportunity to shape the law, rather than merely apply it. I want to know whether Judge Ginsburg will embrace this opportunity to shape the law to make the enduring principles of our Constitution a reality for all Americans, no matter how rich or poor, no matter what race or religion, no matter how unpopular their cause might be. As an appeals court judge, Judge Ginsburg is well known for her preference for measured or incremental movement in the law. She speaks of permitting constitutional doctrine, especially in controversial areas, to emerge from a dialog between the courts, other branches of government, and the people. I am concerned she will always take a similar approach on the Supreme Court, and I will make it no secret that I hope she will not. When Judge Ginsburg speaks of a dialog, she apparently envisions a concept of gradualism in applying the Constitution's provisions. That causes me concern, because any delay in enunciating or protecting constitutional rights is justice denied. There are times and there are issues when the Supreme Court must show leadership. History demonstrates that it is sometimes the Court, rather than Congress or the President, which must have the will and the vision to define the Constitution's promises of liberty and justice, even when it is unpopular to do so. I expect to inquire in this area, to know whether Judge Ginsburg will lead the Court at such times. Judicial leadership in addressing the great social and political problems of our day can be controversial. Judge Ginsburg will probably hear much about judicial activism and judge-made laws from my colleagues during these hearings. I suspect they will warn her 19 against judicial activism, notwithstanding the considerable conservative judicial activism we have seen from the current Supreme Court. But we must rise above this wornout debate to recognize that leadership in applying the cherished principles of our Constitution is not judicial activism. It is leadership we need from Judge Ginsburg on the Supreme Court. T^e role of the Supreme Court in preserving and promoting individual liberty, equal opportunity, and social justice must be restored. Judge Ginsburg, your career as an advocate suggests that you have the intelligence, determination, and courage to begin the work that needs to be done. Your career as an appeals court judge suggests that you have the temperament and judicial skills to begin that restoration. My only question for you during these hearings relates to how you will meet that challenge. Thank you, Mr. Chairman. [The prepared statement of Senator Metzenbaum follows:] PREPARED STATEMENT OF SENATOR METZENBAUM Judge Ginsburg, congratulations on your nomination and welcome to these hearings. It has been a long time since a Democratic President has made a Supreme Court nomination. Justice White's resignation means that all of the remaining Justices were nominated by Republican Presidents. So, I am relieved and pleased that President Clinton has made this nomination. This day is welcome for another reason. For twelve years, Supreme Court nominees have been sent to this committee in the hope of promoting a political and social agenda directly from the planks of the Republican Party platform. A core element of that agenda was the reversal of Supreme Court decisions in the areas of abortion, civil rights, individual liberties, and the first amendment. Unfortunately, their efforts have met with considerable success. As a result, the Supreme Court today is plagued by a vision of the Constitution which is cramped and narrow. The current Court lacks either the will or the commitment to make the promises and principles of our Constitution a reality for all Americans. This Nation faces difficult—and sometimes divisive—social problems. We need leadership that is inclusive and tolerant. And we need a Supreme Court that is a source of inspiration and moral leadership. Only then will individual liberty, equal justice, and fundamental fairness be a reality for everyday Americans as we prepare to turn to the twenty-first century. President Clinton took one large step in that direction by nominating Ruth Bader Ginsburg. No one can seriously claim that the President selected Judge Ginsburg to carry out a political agenda. The President found in Judge Ginsburg the nominee he was searching for—a person of enormous talent, integrity, a generous character, and an unyielding fidelity to the Constitution and the rule of law in the service of society. Judge Ginsburg's record as a litigator is the envy of lawyers throughout the country. She spent the bulk of her career as a lawyer working to secure equal rights for women. She succeeded due to her comprehensive knowledge of the law and her keen understanding of what would persuade the members of the Supreme Court. She developed a brilliant litigation strategy, which included at times using men as plaintiffs in gender discrimination suits. This tactic helped the then, all-male Supreme Court see that discrimination based on gender was incompatible with the great constitutional principle of equal protection under the law. She showed courage and determination when opportunities were closed to her due to discrimination against women. She didn't just get angry and resentful, she fought to change the law for the benefit of all women, and men. With such an outstanding career as a lawyer, it is no surprise that President Carter selected her for the Federal bench. Her tenure on the Circuit Court of Appeals for the District of Columbia has distinguished her as one of the country's finest judges. As President Clinton said in introducing her to the Nation: She is "progressive in outlook, wise in judgment, balanced and fair in her opinions." 20 Judge Ginsburg's record is exemplary; and I am frank to say that I expected nothing less in a nomination by President Clinton. But there is still more that I want to know. As an advocate, Ruth Bader Ginsburg pushed the Court to landmark decisions on behalf of women's rights. While she fought for women one case at a time, she had a goal—a vision—of a Constitution that protected women against discrimination. While a circuit court of appeals judge, her duty has been to faithfully apply the law as interpreted by the Supreme Court. But, if confirmed as the next Supreme Court Justice, she would have the opportunity to shape the law rather than merely apply it. I want to know whether Judge Ginsburg will embrace this opportunity to shape the law to make the enduring principles of our Constitution a reality for all Americans—no matter how rich or poor, no matter what race or religion, no matter how unpopular their cause might be. As an appeals court judge, Judge Ginsburg is well known for her preference for measured—or incremental—movement in the law. She speaks of permitting constitutional doctrine, especially in controversial areas, to emerge from a dialogue between the courts, other branches of government, and the people. I am concerned she will always take a similar approach on the Supreme Court; and I will make it no secret that I hope she will not. When Judge Ginsburg speaks of a dialogue, she apparently envisions a concept of gradualism in applying the Constitution's provisions. That causes me concern because any delay in enunciating or protecting constitutional rights is justice denied. There are times and there are issues when the Supreme Court must show leadership. History demonstrates that it is sometimes the Court—rather than Congress or the President—which must have the will and the vision to define the Constitution's promises of liberty and justice, even when it is unpopular to do so. I want to know whether Judge Ginsburg will lead the Court at such times. Judicial leadership in addressing the great social and political problems of our day can be controversial. Judge Ginsburg will probably hear much about judicial activism and judge-made laws from my colleagues during these hearings. I suspect they will warn her against judicial activism, notwithstanding the considerable conservative judicial activism we have seen from the current Supreme Court. But, we must rise above this worn-out debate to recognize that leadership in applying the cherished principles of our Constitution is not judicial activism. It is leadership we need from Judge Ginsburg on the Supreme Court. The role of the Supreme Court in preserving and promoting individual liberty, equal opportunity, and social justice must be restored. Judge Ginsburg, your career as an advocate suggests that you have the intelligence, determination, and courage to begin the work that needs to be done. Your career as an appeals court judge suggests that you have the temperament and judicial skills to begin that restoration. My only question for you during these hearings is whether you will meet that challenge.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, in the past, following Howard has always gotten me pretty well primed up, but not this time, except for a few rambling remarks there about Republican Presidents and a Democratic President, too, he is right on track. I appreciate your leadership, Mr. Chairman. You have always been very fair and open, serious and practical with us. Welcome back to Arlen, a wonderful legislator and friend and a real contributor to this committee. Good morning, Judge Ginsburg. In going through many of the things that you have written, I noted an article in the Illinois Law Review where you said, in carrying out its duty to consider the President's nominees to the Supreme Court, we have a "weighty responsibility to consider what will serve the national interest." We indeed do, and we will attempt to carry that out responsibly and with a serious intent of a knowledge of our responsibility by considering, among other things, your 21 judicial philosophy, how you will think and reason, as you contemplate the pressing legal issues of the day, questions of the day, and we must do that without compromising your judicial independence. There are, of course, other important considerations and qualifications for a nominee to the Supreme Court. A nominee's rectitude and deportment are critical considerations. We must be certain that the nominee has the education, the experience, and the temperament to serve in the highest office in our profession. I am certainly pleased to say here the record is remarkably clear. Indeed, in these areas you may well be overqualified. That is a serious defect in this community. Think of the ones you know who are. As one who loves Gilbert and Sullivan, you would compose your own lyrics to the tune of "I've got a little list of society offenders who never would be missed," and you remember the rest of that. But the record here is not so obvious or apparent on your judicial philosophy. So, indeed, as Senator Metzenbaum has said, what about judicial activism? That will be asked. Some of your writings seem to imply that it is justified at times, perhaps even forced upon the courts by congressional inaction. I have seen that problem. It is very real. No wonder courts enter the fray. When considering constitutional issues, how persuasive do you find the intent of those who drafted the document. You said some things about that. Your colleagues have or your colleagues-to-be have. What will you do when their intent is unclear or, even more appropriately, more unknowable? In these hearings, we will try to learn what approach you might take in deciding the critical questions of our day, and yet only you will know the extent and substance of response to those questions. Historical perspective here being an example, the more questions, the less answers will get you home. So for me, your competence and temperament are beyond question and we look forward to learning more about your thinking and reasoning, as you would wish to share it in whatever depth, and we will know then whether this appointment will serve the national interest, a very broad and remarkable phrase, but I think, indeed, from what I know, that your appointment would indeed serve that interest. I thank you very much, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. I might note it is remarkable that 7 years ago the hearing we had here was somewhat more controversial, and I made a speech that mentioned the "p" word, philosophy, that we should examine the philosophy, and most editorial writers of the Nation said that was not appropriate. At least we have crossed that hurdle. No one is arguing that any more.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Let me join in the praise of you and the ranking member in conducting these hearings and the members of this committee for pro- 22 ceeding. I think it is very important that we process this nomination as soon as we can. Judge Ginsburg, I join the accolades here in your nomination and those to President Clinton in sending your name here. Twelve years ago, I helped usher a good friend of mine through the same process which you are now experiencing. Her nomination was historic at that time. If confirmed, you will join my friend as the second woman ever to serve on the Court. Like Justice O'Connor, despite your outstanding academic achievements, your ability to find employment after law school was deterred by your gender. You are an individual who has suffered firsthand the effects of discrimination. I think that is most fitting for people who are going to interpret the constitutional rights of individuals who come before them and will, like you, ultimately, I predict, serve on the Supreme Court. You overcame this rude beginning and proceeded to embark upon a truly remarkable and accomplished professional career. You became a nationally respected law professor. And during that time and throughout your career, you have made a considerable contribution to the written legal commentary on this subject and others. Before coming to the bench, you dedicated your efforts to the struggle for gender equality. In the 1970's, you were instrumentally involved in the landmark case that ultimately persuaded the Supreme Court to establish a greater scrutiny to laws that classify on the basis of gender. I thank you for that, Judge, for my two daughters, one a doctor and one a lawyer, who have witnessed job discrimination even today. But their opportunities were enhanced by the fact that you fought that battle early in life and earlier than they when they came along. For the last 13 years, you have served with distinction on what is considered the second highest court in the land. One comment that has been repeated often since the President announced your nomination is that you defy the label of liberal or conservative jurist. Indeed, one news account noted that during your tenure, you had "often gone out of your way to mediate between the Court's warring liberal and conservative factions." Throughout your judicial career, you have shown great respect for the institutional integrity of the Court. Over the last few weeks, I have had a chance to read many of your opinions. To me, they demonstrate deference to precedent and embody judicial restraint. I think that is fundamental and so important. You have great understanding of the role of a middle-tier appellate court. And as you have written, with that role, a judge must follow the guidance of the Supreme Court. However, Judge Ginsburg, as a Supreme Court Justice, you will not be constrained by a higher court's interpretation. You will have free rein to interpret our Constitution. And as you have commented yourself, you will have "the last judicial word" on the "constitutional questions of the day." Our constitutional system endows tremendous responsibility and power to our Supreme Court Justices. Because of that power, I strongly believe that nominees to that Court should be prepared to tell the committee and the American people how they intend to approach the Constitution and the Bill of Rights. A few years back, you wrote a law review article that discussed the Supreme Court's confirmation process. You concluded by quoting a law professor who described the Senate's role in the process as second, but not secondary. The Senate's constitutional obligation is to examine a nominee's competence, integrity, experience, and, yes, his or her philosophy. For the Supreme Court is undeniably a policymaker. Our Framers drafted the Constitution in broadly worded principles that were intended to protect an evolving society. Constitutional interpretation requires an exercise of discretionary judgment. Thus, we must carefully choose the Constitution's most important interpreters. By no means are we here to secure assurances from you on certain cases. No one knows exactly how a case will come before you in the future. But how you approach a constitutional issue and what you consider in resolving that issue are all part of the judicial philosophy and part of the questioning that you will undertake in the next few days. The process is not foolproof. In the past, we have had Supreme Court nominees come before this committee and tell us they had no agenda—and they did. We have had nominees come before this committee and tell us that they did not have a fully developed judicial philosophy—but they did. We have had nominees come before the committee and evoke an image of moderation—but they were not. These past performances by nominees obviously concern this Senator. Because I believe that the hearings are an integral part of the confirmation process, honest answers matter greatly in this process to this Senator. Quite frankly, I do not expect this to be a problem with you, Judge. I am confident that at the conclusion of these hearings, the Senate and the American public will have a c 24 You became a national respected law professor. And during that time and throughout your career, you have made a considerable contribution to our written legal commentary. Before coming to the bench, you dedicated your efforts to the struggle for gender equality. In the 1970's, you were instrumentally involved in the landmark cases that ultimately persuaded the Supreme Court to establish a greater scrutiny to laws that classify on the basis of gender. For the last 13 years, you have served with distinction on what is considered the second highest court in the land. One comment that has been repeated often since the President announced your nomination is that you defy the label of liberal or conservative jurist. Indeed, one news account noted that during your tenure you had "often gone out of [your] way to mediate between the court's warring liberal and conservative factions." Throughout your judicial career, you have shown great respect for the institutional integrity of the Court. Over the last few weeks, I have had a chance to read many of your opinions. To me, they demonstrate deference to precedent and embody judicial restraint. You have great understanding of the role of a middle-tier appellate court. And as you have written, with that role, a judge must follow the guidance of the Supreme Court. However, Judge Ginsburg, as a Supreme Court Justice you will not be constrained by a higher court's interpretation. You will have free rein to interpret our Constitution. And as you have commented yourself, you will have "the last judicial word" on the "constitutional questions of the day." Our constitutional system endows tremendous responsibility and power to our Supreme Court Justices. Because of that power, I strongly believe that nominees to that Court should be prepared to tell the committee—and the American people— how they intend to approach the Constitution and the Bill of Rights. SENATE ROLE A few years back, you wrote a law review article that discussed the Supreme Court confirmation process. You concluded by quoting a law professor who described the Senate's role in this process "as second but not secondary." The Senate's constitutional obligation is to examine a nominee's competence, integrity, experience, and yes—his or her judicial philosophy. For the Supreme Court is undeniabley a policymaker. Our Framers drafted the Constitution in broadlyworded principles that were intended to protect an evolving society. Constitutional interpretation requires an exercise of discretionary judgment. Thus, we must carefully choose the Constitution's most important interpreters. By no means are we here to secure assurances from you on certain cases. No one knows exactly how a case will come before you in the future. But how you approach a constitutional issue and what you consider in resolving that issue are all part of judicial philosophy. And this is all fair questioning. This process is not foolproof. In the past, we have had Supreme Court nominees come before this committee and tell us they had no agenda—but did. We have had nominees come before this committee and tell us they did not have a fully developed judicial philosophy—but did. We have had nominees come before the committee and evoke an image of moderation—but where not. These past performances by nominees obviously concern this Senator. Because I believe that the hearings are an integral part of the confirmation process, honest answers matter greatly in this process. Quite frankly, I do not expect this to be a problem with you in the least bit. I am confident that at the conclusion of these hearings, the Senate and the American public will have a clear vision of your constitutional philosophy. In closing, I join my colleagues in extending a warm welcome to you, Judge Ginsburg. I look forward to our dialogue and witnesses. And I look forward to learning more about your judicial philosophy and thoughts on the great constitutional issues of our day.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. 25
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Congratulations, Judge Ginsburg, and, of course, a warm welcome to your family. I am sure that they take great pride in this day, just as they have done for all of your accomplishments so far in your life, from scholar and law professor to advocate for gender equality, and now to be a distinguished Federal appellate judge, as you have for so many years.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, before you go on, you mentioned the family: I would like to suggest—there are two young children, and this is a tremendously tedious process. I want them to know they are welcome. Instead of having to go out there to use the facilities and the television or anything they want back here, you have free roam, the kids, literally. So you can go back there, and this is the one time to exact from your daddy a promise of ice cream or something for being good. This is the time to do it. [Laughter.] I apologize for the interruption, Senator. Seriously, you are welcome to use this end, as well. Thank you.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Also, they might help us by distracting us from time to time. Today, after so many different distinguished careers you have, is the beginning of an even more notable achievement. If confirmed, you will become only the 107th person on the Supreme Court as a Justice. Indeed, you will join a very elite and a very important group, all charged with interpreting the Constitution. You, Judge Ginsburg, seem to understand the place that the Supreme Court occupies within our democracy. Through many of your writings, I have detected traces of Alexander Hamilton. For example, you appreciate that the Framers gave the Court great authority to rule on the Constitution, but armed the Court with no swords to carry out its pronouncements. Alexander Hamilton envisioned that it would be the accountable branch of government, the legislature, that would make the difficult choices within and for our society. In many of your opinions, you have expressly deferred to the will of Congress, as you apply law to the facts of a case. This confirmation hearing gives us an opportunity to explore your approach to judging and to determine whether you will exercise self-restraint. That, after all, is the touchstone. A Justice must be willing to accept the Constitution as her rule of decision. And a Justice must be able to resist temptation to revise or amend the Constitution according to her definition of what is good public policy. You and I will disagree on specific issues and will disagree on particular cases. I have no doubt about that. But the issue is not whether you and I can sign onto some political platform together. Justice need not be pro-one thing and anti-another thing. That is why judges were given lifetime tenure, so that they would be insulated from the political pressures of the day. The confirmation process need not be a campaign trail of promises by a nominee. These hearings are about judicial philosophy, not about political results. Through much of the second half of this century, the Supreme Court has evolved into a political institution and away from being a legal institution. That trend has diminished somewhat in recent 26 years, with the nomination and confirmation of individuals anchored in the Constitution and individuals who have a deferential approach to the political accountable branches of government. Some political activists, including some of my distinguished colleagues on this committee, are hoping your presence on the Court will bring back an era of political judging. But that view shows a misunderstanding of the role of the Supreme Court. Your fidelity to the Constitution, your appreciation of its framework of limited powers, and your understanding of the role of Congress and the States in making law—these are the important qualities. In addition, and no less important, a Justice must possess an open mind, or what Justice Frankfurter called "a capacity of disinterested judgment." I look forward to exploring these ideas in greater detail with you during these hearings. Once again, I say congratulations to you and all your friends and your family. [The prepared statement of Senator Grassley follows:] PREPARED STATEMENT OF SENATOR GRASSLEY Congratulations, Judge Ginsburg, and welcome to your family. I am sure they take great pride in this day, just as they have done with all of your accomplishments—from scholar and law professor—to advocate for gender equality—to distinguished Federal appellate judge. But today marks the beginning of an even more notable achievement. If confirmed, you will become only the 107th person to become a Supreme Court Justice. Indeed, you will join a very elite and important group, charged with interpreting the Constitution. You, Judge Ginsburg, seem to understand the place the Supreme Court applies within our democracy. Through many of your writings, I have detected traces of Alexander Hamilton. For example, you appreciate that the Framers gave the Court great authority to rule on the Constitution, but armed the Court with no swords to carry out its pronouncements. Hamilton envisioned that it would be the accountable branch of government—the Legislature—that would make the difficult policy choices. In many of your opinions, you have expressly deferred to the will of Congress as you apply law to the facts of a case. This confirmation hearing gives us an opportunity to explore your approach to judging and determine whether you will exercise self-restraint. That, after all, is the touchstone. A Justice must be willing to accept the Constitution as her rule of decision. And, a Justice must be able to resist the temptation to revise or amend the Constitution according to her views of what is good public policy. We will disagree on specific issues and particular cases; I have no doubts about that. But the issue is not whether you and I can sign on to some political platform together. A Justice need not be "pro-one thing" and "anti-another thing." Judges were given lifetime tenure to insulate them from the political pressures on the day. The confirmation process need not be a campaign trail of promises by a nominee. These hearings are about judicial philosophy, not political results. Through much of the second half of this century, the Supreme Court had grown into a political institution and away from being a legal institution. That trend has diminished somewhat in recent years, with the nomination and confirmation of individuals anchored in the Constitution and deferential to the politically accountable branches of government. Some political activists are hoping your presence on the Court will bring back an era of political judging. But that view misunderstands the role of the Supreme Court. Your fidelity to the Constitution, your appreciation for its framework of limited powers, and your understanding of the role of Congress and the States in making law—these are the important qualities. In addition, and no less important, a Justice must possess an open mind, or what Justice Frankfurter called, "a capacity for disinterested judgment." I look forward to exploring these ideas in greater detail with you during these hearings. Once again, congratulations.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. 27
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. Judge, I welcome you and your family. I think this has been an exciting trip for you and your family, from your time in Vermont when you got the call from the White House to being here today.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I wondered how you were going to get Vermont into this.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Your wondering is on your time, Mr. Chairman. I am glad to see you here, because you are going to be on a bench that guarantees the liberties all of us hold dearly. Whether we are Republicans or Democrats, liberal or conservative, it makes no difference. It is the Supreme Court that gives us the guarantees of the Constitution. I have been struck by the breadth and distinction of your record, as I have read it, during the past few years. But I think the proudest achievements in many ways are the landmark Supreme Court cases you fought that literally changed the destiny of women in this country. Much has been said about those victories, and a lot more is going to be said during these hearings. Let me say something: I think I speak for most parents in my own State of Vermont, when I thank you. I thank you personally for helping to contribute to a world where my daughter Alicia will have opportunities equal to those open to my sons Kevin and Mark, and I owe you a deep, deep sense of gratitude for that. I think without your pioneering efforts, there is no guarantee that the progress that has been made so far would have occurred, and I applaud you for that. In fact, even without this nomination to the Supreme Court, you could have been satisfied with your place in history, just because of what you have done in that one area. But you come here with such great qualifications—the court of appeals, teaching at Columbia and Rutgers—but also with a reputation as a fair and thoughtful jurist. I believe the ABA recommendation indicates that. But a brilliant legal mind and volumes of circuit court opinions are far from being the only requirements that go into making a good Supreme Court Justice. You also possess life experience that is so very, very important. Your mother, like so many women of her generation, certainly led a hard life. She was a motivated student—graduating from high school at the age of 15. But she went to work in New York's garment district to put not herself, but her brother through college. You yourself, the first man or woman to be a member of both the Harvard and Columbia Law Reviews, graduated tied for first in your Columbia Law School class with impeccable credentials, but then found there was no law firm in New York that might offer you a job. Prestigious judges and justices made no bones about the fact that they couldn't have a woman as a law clerk. Or when you worked in a Social Security office, while your husband Martin—whom I am glad to see here—was serving in the military, you had to take a lower paying job because you were pregnant. These are days that are not that far gone, but let us hope they are gone now forever. 28 So the kind of things you did to break into what had been a closed world before, these are things you cannot learn about in a book and you can't read about and you can't write about. You had to do it, and you did. I was moved that day in the Rose Garden, when I stood there with you and President Clinton and you spoke about the experiences of your mother. These were not words that just come from a page. They come from the heart and they come from a lifetime of experience, and I think they moved every single person, no matter what their political background, in that gathering in the Rose Garden. I think of cases like Reed, Frontier, Wiesenfeld, and Goldfarb. These are legendary cases. There isn't a law student who can get through law school without reading them. They came from your briefs. Judge, as I said before, the Senate's duty to advise and consent is an extremely important charge, but in exercising this responsibility, we have to consider certain threshold qualities—judgment, temperament, experience, intellectual distinction, moral fiber. But we also go into the judicial philosophy. We will have meaningful questions and I believe meaningful answers, and we will ask you what you think and what kind of a Justice you want to be. But I think that you will also remember, when you go on the Court—as I know you will—what the Court means to everyday, ordinary people, like Sharron Frontiero and Stephen Wiesenfeld, your former clients, but also to others, like Barbara Johns and Clarence Earl Gideon. Barbara Johns attended classes in makeshift tar-paper shacks in a segregated high school in Virginia, but her case was one of five that we now know as Brown v. Board of Education. Clarence Gideon, who couldn't afford a lawyer, was convicted of breaking into a pool hall, but he said, "I am innocent." And the Supreme Court took up his handwritten petition, scrawled on plain paper. And as we know from "Gideon's Trumpet," Gideon got a lawyer, was acquitted of the charges against him, and changed the whole way our criminal justice system works. That is what the Supreme Court stands for in this country, and that is the Court where we expect people can go and say, "My rights are being trampled, and you, you nine people, are the only people that can guarantee the Constitution means what it says to us." That is the kind of Supreme Court Justice we want; not a Republican, not a Democrat, not a liberal and not a conservative, but somebody who looks first and foremost at the rights of ordinary people. Thank you, Mr. Chairman. [The prepared statement of Senator Leahy follows:] PREPARED STATEMENT OF SENATOR LEAHY We are a nation blessed in many ways. But our greatest blessings are the individual liberties guaranteed by our Constitution. The nine men and women who serve as justices of the Supreme Court are the final guardians of these freedoms. Because of all that is at stake, a lifetime appointment to this bench is perhaps the most sacred trust that can be bestowed on an individual. Because of what is at stake, the Senate's responsibility of advice and consent in these proceedings is perhaps its most important duty. Judge Ginsburg, reviewing your record over these past weeks, I have been struck by its breadth and distinction. But perhaps your proudest achievements are the 29 landmark Supreme Court cases you fought that literally changed the destiny of women in this country. Much has been made said about these victories, and much more will be said throughout the course of these hearings. So let me just add this: I think I speak for most parents in my State of Vermont when I thank you—personally—for helping to contribute to a world where someday my daughter will have opportunities equal to those open to my sons. Without your pioneering efforts, there is no guarantee that the progress that has been made so far would have occurred. All of us owe you a great debt of gratitude. You come before this Committee with sterling qualifications. In your 13 years on the D.C. Circuit Court of Appeals, and before then teaching at Columbia and Rutgers, you have distinguished yourself as a top flight legal scholar. Along with having the reputation as a fair and thoughtful jurist, colleagues from the bench, scholars who comment on your work and lawyers who appear before you point to your keen intellect and ability for astute legal analysis. But a brilliant legal mind and volume of circuit opinions are far from the only requirements that go into making a proper Justice of the Supreme Court. And they are far from the only attributes you offer. You also possess the life experience that makes you know the world of most people is more troubled than the confines of the courthouse or academia. Your mother—like so many women of her generation—led a hard life. She was a motivated student—graduating from high school at age fifteen. But she went to work in New York's garment district to put her brother, not herself, through college. You yourself, the first man or woman to be a member of both the Harvard and Columbia Law Reviews, graduating tied for first in your Columbia Law School class with impeccable credentials, could not find a law firm in New York that would offer you a job. Prestigious judges and justices made no bones about denying you clerkships, just because you were a woman. When you worked in a Social Security office while your husband, Martin, served in the military, you were forced to accept a lower-paying job because you were pregnant. Your experiences breaking into what was—and to a surprising degree still is—a man's world are credentials that cannot be attained from books or briefs. You know what it means to be excluded, what it means not to be taken at your worth as a full member of society. And it is these experiences, I suspect, that you still draw upon every time you have to decide a truly tough case. Listening to your comments in the Rose Garden, I could tell especially how your mother's spirit inspires you to this day. These experiences also spurred your pathbreaking role in litigating the major Supreme Court cases that advanced constitutional protections against sex discrimination. Reed, Frontiero, Wiesenfeld, Goldfarb—all legendary cases that every law student now reads in constitutional law class. From your briefs and arguments, they have become some of the Supreme Court's most revered works. Judge Ginsburg, as I said before, the Senate's duty to advise and consent is an extremely important charge. In exercising this responsibility, the Senate must of course consider certain threshold qualities—judgment, temperament, experience, intellectual distinction, moral fiber. But we must look beyond that, probing the nominee's judicial philosophy—how she thinks—how she views the role of the Constitution in society. Does she—like so many great conservative and liberal justices who have come before—regard the Constitution as an unbreachable wall separating the state from our liberties? Or does the nominee have a narrow, crimped view of our founding principles? Judge Ginsburg, during these hearings, you will be pressed on many important issues. That is our responsibility. While it is inappropriate for you to be asked about specific cases that may be pending before the Court, the Committee cannot satisfy its constitutional obligation unless it can learn what your constitutional vision is— how you think about the great issues of the day. This requires asking meaningful questions and receiving meaningful answers. The Committee's weighty responsibility for advice and consent is constant. Judge Ginsburg, I am sure you have thought over the past weeks at least, what kind of a justice you want to be on the Supreme Court. When you are confirmed, as I expect you will be, I hope you will remember what the Court means to everybody, ordinary people like Sharron Frontiero and Stephen Wiesenfeld, your former clients, and to others like Barbara Johns and Clarence Earl Gideon. Barbara Johns attended classes in makeshift tar-paper shacks in a segregated high school in Virginia. Barbara Johns knew that separate would never mean equal and, with her parents, resolved to fight for her rights. Her case was one of five that together we now know as Brown v. Board of Education. 30 Clarence Gideon, who could not afford a lawyer, was convicted of breaking into a pool hall and stealing money out of a jukebox. "I am innocent," he claimed. The Supreme Court took up his petition, scrawled by hand on plain paper, listened to his arguments, and gave his constitutional rights content and meaning. Thanks to the Supreme Court, Gideon got a lawyer and was acquitted of the charges against him. This is what the Supreme Court stands for in our country. Sharron Frontiero, Barbara Johns and Clarence Gideon were hardly powerful or well connected, but they could rely on the Supreme Court to listen fairly to their pleas for justice. The Supreme Court is the institution—really unique in the world—all of us, rich or poor, famous or forgotten, can look to for justice; The place where anyone can go to and say, "I will be heard, and I will have my rights." Let me conclude my remarks where I began. The Constitution is the soul of this country. I will be looking during these hearings for the intensity of your feelings about the liberties that make this country special, and your devotion to the Court as the protector of those rights. I want you to be a justice who recognizes the importance of this role—a justice who perceives your pivotal place in the history of our democracy, and the great trust that has been placed in your care. I would not expect you to be outspoken on this score—your nature is to let your actions from the bench speak for themselves. But I do expect—really I know—that in the days ahead we will get a sense of your quiet determination and inner zest for the cause of justice—a cause to which you have dedicated your life. Welcome to you and your family. I look forward to discussing these issues with you in the days ahead.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Mr. Chairman. Judge Ginsburg, I welcome you here with my colleagues, and I compliment you on an outstanding academic, professional, and judicial record—some 322 opinions and still counting, and 79 articles. Notwithstanding that outstanding record, I do express concern that some of my colleagues have expressed virtual approval of your nomination even before the hearings have begun, and I believe that that raises some significant problems. I think that, first, there is a tendency to look at the hearings as pro forma or perhaps just going through the motions with confirmation a virtual assurance. Second, I am concerned about the real risk of undermining public confidence that the Senate will vigorously discharge its constitutional duty of advice and consent on a nominee who will have such a profound effect on the daily lives of more than 250 million Americans, with so many 5—4 decisions on the crucial issues of the day. I have long expressed my own concern about judicial activism and the Supreme Court being a superlegislature, with the concern about undermining the vital constitutional principle of separation of powers. At the outset let me say that, as I read your writings, I agree with much of what you say; and that if you were a Senator offering your ideas and legislation on the Senate floor, I would be inclined to cosponsor a good bit of what you articulate. But the difficulty with judicial activism, as I see it, is that it is fine when we agree with your activism, but it is very problemsome if the principle is established that judicial activism is appropriate. One of my colleagues referred to the agenda of the nominees of two Republican administrations and made it plain that he doesn't favor that kind of judicial activism. And I believe that, as a matter 31 of principle, it is vital to keep the activism out of the judicial line as much as is possible. I have been very much impressed with the breadth of your writings and the openness and the candid approach which you have taken. When you talk about extension of benefits where there is an equal protection violation, and the Court then extends benefits to those not covered by legislation, you are candid in saying that you are legislating a bit. And any legislation by the Court is a matter of concern. When you take up the equal protection issue and talk about bold interpretation and talk about judges being uneasy in the gray zone between interpretation and alteration of the Constitution, those raise concerns to me about where activism may lead. Again, I repeat, I admire the positions you have taken and what you have achieved as a litigant and what you have done as a jurist. And I also say that on the bench you have not carried forward the lines which you have written. But as one of my colleagues has noted, when you are on the Supreme Court—how did my colleague put it?—you will have a free hand in doing a great deal more. So I think these hearings are very important as we take a look at your record, as we take a look at what you have written and see how that may be applied. And as noted by a number of my colleagues, I think we are past the day where there is an issue about the propriety of inquiring into judicial philosophy, although we do not want you to answer how you are going to decide specific cases. I have noted your writing that the second opinion by the Senate is a very important second opinion and your endorsement of the proposition that the Senators should have equal latitude with the President in deciding which nominees are good for the country. Beyond those theoretical issues, there are many very important matters that are on the cutting edge of critical considerations for the American people, and I look forward to these hearings and hope that we will be able to have an open exchange where we will have some real idea as to how you see your role as a Supreme Court Justice contrasted with a court of appeals judge, where you will have a freer hand and where there will be a question as to how you will apply the writings on legislation and expansive interpretation of constitutional rights. Thank you very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator.
Senator Howell Heflin (AL)
Senator
(D)
Senator Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Judge Ginsburg, I welcome you and congratulate you on your selection as a nominee for the U.S. Supreme Court. Over the years, I have had the opportunity to participate in the confirmation process of a number of nominees for our Nation's highest court. I have during past hearings seen the organized distortions of interest groups, heard the roars of extreme party loyalists, and witnessed the divisiveness of politics. I have in a sense seen blood shed during past confirmation hearings. This time I believe we will see a process remarkably free of acrimony and partisan bickering. Already there is a noticeable dif- 32 ference. What a change of atmosphere from that of the recent past: Congeniality prevails over confrontation; back-slapping has replaced back-stabbing; inquiry is the motivation rather than injury. While it remains to be seen whether this climate of goodwill will last, at least for now we are scaling the heights of bipartisan cooperation. Judge Ginsburg, you deserve much of the credit for this fresh new atmosphere. The excellence of your record has itself made your nomination a source of consensus. Much of the credit must also go to my Republican colleagues for their approach to this process. Too often in the past, both parties have suffered from the nearsightedness that sometimes comes from wearing the blinders of partisan allegiance. Finally, a large share of the credit must also go to the President for avoiding a selection based on litmus tests or ideology. This respite of goodwill is a gift to all of us. Indeed, it is a rare opportunity for this committee and the public we represent to engage in an enlightened dialog with, in my judgment, a future member of our highest court. Freed of the turmoil that has often marred the confirmation process, this committee and the full Senate will have an opportunity to more properly and objectively play the advisory role with which the Constitution charges us. In that spirit, let me add that my own review of your record leaves me highly impressed. I find particularly encouraging your writings on the need for collegiality and consensus in deciding cases, while adhering to principle. You have also said that a judge's role is to see beyond the often misleading claims of ideological labels. You observe, for example, that a description like "judicial activism" can be a battle cry for both the right and the left, and that a phrase like "original intent" is a signpost along an unending and uncertain road. I welcome this insightful candor on your part. It reveals a healthy disdain for ideological dogma and a fresh receptiveness to intellectual challenge. If these instincts are any guide, your service on the Supreme Court would honor that institution and our Nation. You have the potential to break free from the polarization of the left and the right. You offer the promise of reflective, nonideological, and fair jurisprudence. And I for one know of no other values more vital to a sound judicial temperament. I am optimistic that your brand of judicial decisionmaking will set a standard, and I am also hopeful that the spirit of goodwill that has graced this process so far will set a standard for appointments to come. I look forward to your testimony and to a discussion of your vision, philosophy, and values over the next few days. I welcome you today and wish you well. [The prepared statement of Senator Heflin follows:] PREPARED STATEMENT OF SENATOR HEFLIN Judge Ginsburg, I welcome you and congratulate you on your selection as a nominee to the United States Supreme Court. Over the years, I have had the opportunity to participate in the confirmation process of a number of nominees for our Nation's highest court. I have, during past hearings, seen the organized distortions of interest groups, heard the roars of extreme party loyalists, and witnessed the divisiveness of politics. I have, in a sense, seen blood shed during past confirmation hearings. 33 This time, I believe we will see a process remarkably free of acrimony and partisan bickering. Already, there is a noticeable difference. What a change of atmosphere from that of the recent past: Congeniality prevails over confrontation; backslapping has replaced back-stabbing; inquiry is the motivation rather than injury. While it remains to be seen whether this climate of goodwill will last, for now, at least, we are scaling the heights of bipartisan cooperation. Judge Ginsburg, you deserve much of the credit for this fresh new atmosphere— the excellence of your record has itself made your nomination a source of consensus. Much of the credit must also go to my Republican colleagues for their approach to this process. Too often in the past, both parties have suffered from the nearsightedness that sometimes comes from wearing the blinders of partisan allegiance. Finally, a large share of credit must also go to the President for avoiding a selection based on litmus tests or ideology. This respite of goodwill is a gift to us. Indeed, it is a rare opportunity for this committee and the public we represent to engage in an enlightened dialogue with a future member of our highest court. Freed of the turmoil that has often marred the confirmation process, this committee and the full Senate will have an opportunity to more properly and objectively play the advisory role with which the Constitution charges us. In that spirit, let me add that my own review of your record leaves me highly impressed. I find particularly encouraging your writings on the need for collegiality and consensus in deciding cases, while adhering to principle. You have also said that a judge's role is to see beyond the often misleading claims of ideological labels. You observe, for example, that a description like "judicial activism" can be a battle cry for both left and right, and that a phrase like "original intent" is only a sign post along an unending, uncertain road. I welcome this insightful candor on your part. It reveals a healthy disdain for ideological dogma, and a fresh receptiveness to intellectual challenge. If these instincts are any guide, your service on the Supreme Court would honor that institution and our Nation. You have the potential to break free from the polarizations of the left and right. You offer the promise of reflective, nonideological, and fair jurisprudence. And I, for one, know of no other values more vital to a sound judicial temperament. Judge Ginsburg, I am optimistic that your brand of judicial decisionmaking will set a standard. I am also hopeful that the spirit of goodwill that has graced this process so far will set a standard for appointments to come. I look forward to your testimony and to a discussion of your vision, philosophy, and values over the next few days. I welcome you today and wish you well.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, I have never heard you so articulate or so rhetorically eloquent. Obviously major surgery does a lot to people up here. You are looking good, and we have been welcoming Senator Specter back, but you have gone through one heck of a summer and spring, and it is great to see you in such great health and making such fine statements.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, thank you, sir. I appreciate that.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, Senator Brown, who has not had any major surgery, is next. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But we still welcome him back.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is right.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you, Mr. Chairman. Judge Ginsburg, let me add my welcome to you as well. It is clear from looking at your record that your commitment to the law is a family affair. I note that your husband Martin is a distinguished professor at Georgetown University and that your daughter is a tenured professor at Columbia Law School. They tell me that even your son, who is currently on leave from law school, is a law student at the University of Chicago. That kind of family 34 commitment, I think, bodes well for the endeavor that is ahead for you. I also note a number of firsts in your background that I think any of us would take enormous pride from: No. 1 in your class at Cornell; among the first nine women admitted to Harvard Law School; No. 1 in your class at Columbia Law School; the second woman in history on the faculty of Rutgers Law School; and the first woman to ever serve on the faculty of Columbia Law School. You are also the first woman to make law review at two Ivy League schools, which has already been noted, and you are among the first 20 law professors to teach at any American law school. Your record is extraordinary by any account and I think is one of the reasons that you have the kind of welcome this morning that you have enjoyed. This seat, as I know you know, is a very special one for Colorado. It is special because Byron White is so respected and so honored in the State. I think of Byron White's contribution as more than simply being one of the finest athletes in the history of our country, which, of course, he has been, perhaps more than even being one of the finest scholars to ever serve our country in the highest court. He has been both of those. But I think perhaps what is significant for our deliberations this morning is Byron White's integrity that he has brought to the process. Ultimately, I think the concern of the committee is for integrity, perhaps more than any particular issue. I tend to think it affects all of the things we will discuss, most particularly the philosophy you bring as a Justice on the Supreme Court. Our Founding Fathers laid out a Constitution that I don't think any of them thought would remain unchanged forever. As a matter of fact, as you know, the amending process started immediately with the first 10 amendments in what we now call the Bill of Rights. That Bill of Rights was a process not only to bring equity but also to get the measure passed and approved as it went for ratification to the various States. But the Constitution laid out a process for its change. Our Founding Fathers never thought that that document would remain unchanged and specifically provided for how it could be changed and updated. And I note that Thomas Jefferson had suggested not only the need for change and adaptation, but had even suggested perhaps a constitutional convention that might take place every 20 years. I, for one, think that idea would be an excellent one, but the question I think it raises is this: Do we respect the amendment process and reserve changes in our Constitution for that process, a process that involves levels of government closer to the people, elected representatives that can be eliminated from office if their constituents disagree? Or do we believe the amendment process can take place by those who are appointed to the Court? That strikes me not just as a matter of favoring the woman's right to choose or opposing it, or favoring changes in the construction of the equal protection clause, or favoring or opposing changes in the interpretation of the 10th amendment, but one of integrity of the Constitution itself. 35 It seems to me it is a question that rises beyond whether we like the makeup of the Framers of the Constitution, but one of whether we will respect the integrity of the process they set in motion. And so, at least for me, I think the fundamental question that we will try and explore this week will be one of what kind of approach you will take in updating the Constitution and amending it, what your thoughts and philosophies are in that respect. Once again, let me add a real sense of joy in the accomplishments you bring to this job. I think it is clear that you have the intellectual capacity to be a very distinguished member of the U.S. Supreme Court. I look forward to a chance to explore with you the issues that I think you will be facing in those years. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator.
Senator Paul Simon (IL)
Senator
(D)
Senator Simon.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you, Mr. Chairman. And as I have listened to my colleagues, Judge Ginsburg, and I know of your interest in opera, it sounds not like the triumphal march of "Aida" but the triumphal march of Judge Ginsburg here. We welcome you, and particularly we welcome your son from Illinois here. [Laughter.] As I have read your opinions and some of your writings, as you probably never anticipated U.S. Senators would read them, I have the impression of a solid scholar, but someone who is cautious. And my guess is that is the kind of Supreme Court nominee that you will be. If I may comment, Mr. Chairman, just a moment on the process itself, I think first the President handled this properly in taking time, in consulting with members of this committee and consulting with legal scholars around the Nation. It is very interesting, as you look at the history of nominations, when Presidents have acted quickly, with rare exceptions, the nominations have not been strong nominations. When Presidents have taken their time, there generally has been a superior quality to the nomination. And I think President Clinton and Attorney General Reno and his counsel, Bernie Nussbaum, are to be commended on the time that was taken. The second thing I want to commend you on Mr. Chairman, is having one portion of the hearing a closed hearing where any negative charges, which may or may not have substance, are heard in that closed hearing. And then if there is something substantial, then the public can know about it. But if someone somewhere has a charge that a nominee embezzled $50,000 10 years ago, we don't need that on national television immediately. That ought to be looked at in a private session. And then if there is substance, we look at it openly. Judge Ginsburg, I think you are doing very well with this committee. In fact, maybe we ought to stop the hearings right here from your perspective. You face a much harsher judge, however, than this committee, and that is the judgment of history. And that judgment is likely to revolve around the question: Did she restrict freedom or did she expand it? 36 I am optimistic that the judgment of history will be a favorable one for you. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Senator Cohen, a new member of the committee and a very welcome member of the committee, although he has had experience in the past in the other body on the Judiciary Committee. It is nice to have you here, Senator, on this nomination.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Thank you very much, Mr. Chairman. Judge Ginsburg, welcome to this hearing. Senator Brown suggested I might try to approach a discussion with you in a manner different than that pursued by all who have preceded me, and that is quite a challenge in itself. In preparing for the hearing, I was rummaging through the writings of Ambrose Bierce, an American writer and journalist, and I would note parenthetically the author of '"The Devil's Dictionary," a book that many people in this country may feel we refer to in order to color and shade our words from time to time. Bierce related the story of an Associate Justice of the Supreme Court who was sitting by the river when a traveler approached and said, "I'd like to cross. Would it be lawful to use this boat?" "It will," came the reply. "After all, it's my boat." The traveler thanked him, jumped in the boat, pushed it into the water, embarked and rowed away. The boat sank and the man was drowned. Heartless man, cried an indignant spectator. "Why didn't you tell the man that the boat had a hole in it?" "The matter of the boat's condition," said the great jurist, "was not brought before me." Now, during the next several days, the committee hopes to bring before the American people the matter of your condition and that of your intelligence and competence and philosophy on the role and responsibility of the Court in our lives. It is interesting that out of all the institutions in our three branches of government, the Supreme Court remains to most Americans the least well known, the least understood, and, perhaps not so paradoxically, the most revered. With the national press corps recording virtually every step or misstep that a President makes, the American people are fully aware that the Nation's Chief Executive is bound to be a colossus with imperfect feet, and it is no state secret that the American people hold the legislative branch in what we can only charitably call a minimum of high regard. It is only the judicial branch, and particularly the Supreme Court, that has significantly grown in stature since its creation some 200 years ago. For the vast majority of people, the Justices, their deliberations, their decisionmaking processes, all remain shrouded in secrecy. There is almost an ecclesiastical aura and mystery that surrounds that temple where final and unreviewable power is exercised. Prof. Laurence Tribe, who is no stranger to this committee, has described the profound nature of the Court's influence on our lives. He has written that: 37 A President resigns, a gargantuan corporation disintegrates, a frightened but hopeful child marches to school with her military escort past a hostile crowd, all because nine black-robed figures in Washington have gleaned new wisdom from an old and hallowed document. The sweep of the Supreme Court's influence is so vast that it cannot be grasped by the eye. The Washington Post has published a thorough three-part series on your life and career, and there were many things that caught my eye in those articles. One involved your comments in which you express some concerns about the Kahn case. According to the article, you wrote a letter back in 1975 to one of your former law school students, expressing some apprehension that Justice William O. Douglas, whose widowed mother had had a very rough time financially, might not like a case challenging widows' benefits. Now, most people cling to the illusion that Supreme Court Justices are simply black-robed oracles who peer through lenses that are unclouded by the personal experiences and biases that afflict ordinary mortals. But I think you, in writing that letter, understood what Justice Cardozo revealed some years before. He said, We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own. To that test, they are all brought, a former pleading or an act of parliament, the wrongs of paupers, the rights of princes, a village ordinance or a nation's charter. What I hope is that in the next several days we can get a better sense of the experiential and intellectual forces within you that will provide some indication of the direction that you are likely to pursue in the days in which you are going to remain beyond the reach of public opinion and beyond that of congressional recall. One of my colleagues earlier indicated he has expressed opposition to nominees who were advocates as private citizens and whom he feared would remain so while on the Court. Today he offered, I think, some expressions of mild disappointment. While once you were an advocate, his fear is that you have become a jurist while serving as a judge and might continue to do so. Let me express my hope that you will maintain a jurist's approach to the law rather than that of an advocate. Justice Cardozo, I think, in his most concise and penetrating comment reminded us that in the final analysis there is no guarantee of justice except the personality of the judge. I am hopeful that at the conclusion of these proceedings the American people will be satisfied, as we will, that we will have a guarantee of justice and that justice will be done. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Judge, this is a historic occasion, but it is particularly historic because the next person to make a statement will be the first woman ever to preside over a Judiciary Committee proceeding for the Court, and it is appropriate that the first person over whom she presides is likewise a woman—oh, I beg your pardon. [Laughter.] With that, I will introduce Senator Kohl from Wisconsin, who, I assure you, is not a woman and has done this before and done it well and is the most distinguished member of this committee. [Laughter.] Senator Kohl, I apologize. 38
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Thank you, Mr. Chairman. Judge Ginsburg, as we all know, last month President Clinton announced that he would nominate you to serve on the Supreme Court. At that Rose Garden ceremony, you told the President that you look forward to stimulating weeks this summer. I assume that you were referring to this confirmation process, and I hope very much that we don't disappoint you. Although the Constitution is silent on what standard to apply in evaluating a nominee, you have provided some useful guidance. You have noted that in an appointment to the Supreme Court the Senate comes second, but is not secondary. And I agree. As a member of this committee, I have developed my own criteria for judgment. First, I look for a nominee of exceptional character, competence, and integrity. That you clearly have, as an honored student, an effective advocate, and also as a very distinguished appellate judge. But I am struck by more than your professional honors. I am impressed by your dedication to principles that you have not only talked about but lived. For example, you didn't just resign from discriminatory clubs; you refused to join them in the first place. You didn't just talk about gender equality; you fought for it. And we all admire that. Second, I seek a Justice who understands and accepts both the basic principles of the Constitution and its core values implanted in our society. We do not elect Justices. They are given lifetime tenure precisely because we want to insulate the Court from the pull and the tug of partisan politics. That insulation makes it critical that we be certain that a nominee will protect the civil rights and the liberties of all Americans. Third, I want a Justice with a sense of compassion. Behind every abstract legal principle, there are real people with real problems. It is the Court that must be their sanctuary and their shelter. Justice Black put it best when he said, "Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement." In other words, Judge Ginsburg, the courts are places for doing justice, and not just giving logic to the law. Judge you are not a stealth nominee. Your record is clear, and there is little opposition to your confirmation. In fact, conventional wisdom has you all but confirmed. But, even so, the Senate should not act as a rubber stamp. The President is asking us to entrust you with an immense amount of power, and before we decide to give it to you, we need to know what is in your heart and what is in your mind. We don't have a right to know in advance how you will rule on cases which will come before you, but we do need and we deserve to know what you think about the fundamental issues that surround these cases. So today we begin a public discussion which is the only opportunity we will have on behalf of the American people to engage you in a conversation about the core concepts of our society. And I hope, Judge, that you will discuss these matters with us more in 39 terms of principles and precedents, and more in terms of desires and doctrine. The American people care about these concepts. They are not just debated in law journals. For example, as television brings violence into our homes, we agonize over the impact it has on our children, the damage it does to their values and to their view of reality, and wonder how we can reduce it without threatening the constitutional promises of free speech. As gangs roam our streets and create fear in our communities, we debate balancing the rights of individuals with the responsibility of the police to protect civil order. As new civil and voting rights laws are proposed, we struggle to correct discrimination of the past without creating a newly disenfranchised class. These and other issues invite all Americans to struggle with the dilemmas of democracy, and if we can discuss these issues today with candor, then I believe we will have a conversation the American people will profit from—and perhaps, Judge Ginsburg, the type of stimulating conversation that you spoke of in the Rose Garden. And so we welcome you before this committee, and we look forward to our discussion with you. [The prepared statement of Senator Kohl follows:] PREPARED STATEMENT OF SENATOR KOHL Judge Ginsburg, last month President Clinton announced that he would nominate you to serve on the Supreme Court. At the Rose Garden ceremony, you told the President you "look[ed] forward to stimulating weeks this summer." I assume you were referring to the confirmation process; let's hope we don't disappoint you. Although the Constitution is silent on what standard to apply in evaluating a nominee, you have provided some useful guidance. You have noted that "[i]n an appointment to the United States Supreme Court, the Senate comes second, but is not secondary." I agree. And as a member of this Committee, I have developed my own criteria for judgement. First, I look for a nominee of exceptional character, competence and integrity. You clearly have that—as an honored student, an effective advocate and a distinguished appellate judge. But I am struck by more than your professional honors. I am impressed by your dedication to the principles that you not only talked about, but lived. For example, you didn't just resign from discriminatory clubs, you also refused to join them in the first place. You didn't just talk about gender equality, you fought for it. I admire that. Second, I seek a Justice who understands and accepts both the basic principles of the Constitution and its core values implanted in society. We do not elect Justices. They are given lifetime tenure precisely because we want to insulate the Court from the pull and tug of partisan politics. That insulation makes it critical that we be certain that a nominee will protect the civil rights and liberties of all Americans. Third, I want a Justice with a sense of compassion. Behind every abstract legal principle are real people with real problems. It is the Court that must be their sanctuary and their shelter. Justice Black put it best: Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. In other words, the courts are places for "doing justice," not just giving logic to the law. Judge, you are not a stealth nominee, your record is clear, and there is little opposition to your confirmation. In fact, conventional wisdom has you all-but-confirmed already. Even so, the Senate should not act as a rubber stamp. The President is asking us to entrust you with an immense amount of power. Before we decide to give it to you, we need to know what is in your heart and what is in your mind. We don't have a right to know in advance how you will rule on 40 cases which will come before you. But we do need—and we deserve—to know what you think about the fundamental issues that surround these cases. Today we begin a public discussion, which is the only opportunity we will have— on behalf of the American people—to engage in a conversation with you about the core concepts of our society. And I hope, Judge, that you will discuss these matters with us more in terms of principles than precedents, more in terms of desires than doctrine. The American people care about these concepts. They are not just reviewed in law journals. As violence flickers across our TV screens, we think about our responsibility to children and our pledge to protect free speech. As gangs roam our streets and create fear in our communities, we debate balancing the rights of individuals with the responsibility of the police to protect civil order. As new civil and voting rights laws are proposed, we struggle to correct discrimination of the past without creating a newly disenfranchised class. These issues invite all Americans to struggle with the dilemmas of Democracy. And if we discuss these issues with candor, I believe we will have a conversation the American people will profit from. And perhaps, Judge Ginsburg, the type of stimulating conversation you spoke of in the Rose Garden. I welcome you before the Committee, and I look forward to our discussion. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Now I would like to recognize the distinguished Senator from California, Senator Feinstein.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you very much, Mr. Chairman. Good morning, Judge Ginsburg. For me, this is a very special opportunity, because while several of my colleagues spoke of the fact that they have been present during many of these hearings, for myself and Senator Moseley-Braun, this is our first. And it is no coincidence that, as our first, it is someone such as yourself. We are contemporaries, Judge, and many women of our generation struggled against significant odds to educate themselves and to balance career and family. To be honest, though, until I began to prepare for these hearings, I really didn't realize the depth and the extent to which you have played a very critical role in breaking down the barriers that have barred women from public and private sectors for centuries. So now I know just how really fitting and proper and how significant this vote is going to be for me. And I want to thank President Clinton for nominating you. I noted, for example, that as one of only 9 women in a class of 400 at Harvard, you were asked by the dean to justify taking a place in the class that otherwise would have gone to a man. That despite graduating at the top of your law school class, only two law firms in the entire city of New York offered you second interviews, and neither offered you a job. And that even after you became a litigator, you were given sex discrimination cases to handle, because they were viewed at the time as women's work. You met each of these challenges and indignities and, no doubt, many more, Judge Ginsburg, with intellect, with determination, and grace. And not only did you justify your admission to law school, but you blazed a trail that thousands of women have followed. Decades later, asked to identify the most significant jurists of his time, the same dean who had begrudged your matriculation at Harvard named you and the great Thurgood Marshall. The rest of 41 your story is quite literally history, the history of modern gender discrimination law. As the founder and director of the ACLU women's rights project, you brought virtually every major sex discrimination case before the Supreme Court in the 1970's. From the very first case that you argued and won, as was spoken by Senator Leahy, Frontiero v. Richardson, your work has changed the constitutional rules of the road forever. In Frontiero, the Court struck down as "inherently suspect" a law based on gender, and, for the first time in history, established a new and tough test to which all future gender-based statutes would be subjected. As I know from my colleague, Senator Moseley-Braun, and I know she will appreciate it, Frontiero fittingly was decided precisely 100 years after the Supreme Court upheld in Bradwell v. Illinois that State's refusal to admit a woman to the practice of law. In Bradwell, the Supreme Court wrote: "Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." Accordingly, the Court concluded, The harmony * * * of interests and views which belong, or should belong to the family institution, is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. What a long way we have come in this Nation. It took a century, though, to extract from the Court in Frontiero a new test of constitutionality for statutes based on gender, and it took an extraordinary woman to do it. Incredibly, you prevailed, as has been said, in five of the six cases that you personally argued before the Court, winning in the process equal treatment under the law for both women and men in the administration of estates, receipt of Social Security benefits, availability of tax exemptions, and jury service. In the process, you improved the lives of virtually millions of Americans. In conclusion, for the intellect and dedication to thrive in hostile academic environments, laying the groundwork for thousands of women, including your daughter and mine, who is today a lawyer, to follow; for the courage to persevere, with your husband's active participation, in pursuit of a life in the law, and perhaps most of all, for the fruits of that life as a litigator and a jurist. I want to thank you, Judge Ginsburg, both for all that you have done, and as a member of the U.S. Supreme Court, for all that you have yet to do. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. Another distinguished new member of the committee, Senator Moseley-Braun.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Thank you very much, Mr. Chairman. Judge Ginsburg and to your family, welcome. Mr. Chairman, I am truly honored to have the opportunity to participate in these hearings. One of a Senator's most solemn responsibilities is the duty to offer advice and consent on the nomination of a Justice to the U.S. Supreme Court. One of the most pre- 42 cious privileges an American citizen can have is to play a role in that process. Indira Gandhi once said that if you study history, you will find that where women have risen, that country attained a high position, and whenever they remained dormant, that country slipped back. Regrettably, history teaches us that many obstacles have been placed in the way of progress for women in this country. Judge Ginsburg's own personal history, including being rejected for employment by leading law firms and by the very Court to which she is nominated today, demonstrated vividly the nature of gender discrimination in this country's very recent past. Now, in 1993, thanks in no small part to Judge Ginsburg's efforts as an advocate for women, many—but not all—of the formal legal obstacles to the advancement of women have been eliminated by legislative action and by judicial decisions. As has been pointed out before, today marks only the second time in our Nation's history that a woman has appeared before the Senate Judiciary Committee as a nominee to the Supreme Court. It is also the first time that any woman, let alone two, has sat as a member of this all-important body. Two years ago, I watched Senate confirmation hearings on the television from back home in Illinois with a sense of helplessness and exclusion. Our democracy once again responded and the people of Illinois and of California, I might add, have given us the unique privilege of participating here today. This is the greatest country in the world, and I believe the U.S. Constitution to be the finest exposition of democratic principles ever written. I make these statements, Mr. Chairman, fully aware of the fact that, in its original form, the Constitution included neither this Senator as an American of African descent, nor our distinguished nominee as a woman in its vision of a democratic society. But the greatness of the Constitution lies in the fact that it is a living document. Or, as Dr. Martin Luther King, Jr., once said, a declaration of intent regarding America's unlimited potential, a document that, through an often painful process of amendment and interpretation, has broadened its reach to extend to the previously excluded its promise of equality and justice for all. Over the years, the Supreme Court played a glorious role in that process. It was the Justices of our Supreme Court in their bold, independent, and faithful interpretations of our living Constitution, who outlawed racial segregation in our schools, guaranteed indigent criminal defendants the right to counsel, brought wiretapping within the restrictions of the fourth amendment, demanded freedom of speech, and recognized a woman's fundamental right to control her reproductive destiny. In some of the most difficult areas of our history, the Supreme Court has shown the courage to give life to the promise of the Constitution. It seems to me that a central issue of our time is whether that courage has been lost to timidity and partisan politics. It is troubling to me, Mr. Chairman, that the Court's general approach to constitutional interpretation—the willingness of some recent nominees to embrace the jurisprudence of so-called strict con- 43 struction and original intent—all too often has resulted in a narrow reading of the Constitution that has curtailed, rather than expanded, individual rights and has left those who are not rich or powerful or privileged with fewer and fewer rights and less and less liberty. Regular working men and women, ordinary people, can no longer be sure that the Supreme Court will be their champion of last resort. All of the conversations that we have heard today about judicial philosophy boil down to this: Can the people be secure that this nominee will be a champion of their liberties, a jurist committed to the rule of law in the service of society, someone wiling to see our living Constitution as a declaration of intent? Over the next few days, this committee will have the opportunity to explore some of the most complicated doctrines of constitutional law with this nominee, a brilliant jurist and legal scholar. These discussions are designed to illuminate Judge Ginsburg's judicial philosophy and temperament. But even as we engage in what sometimes becomes a highly technical dialog, Mr. Chairman, let us never forget that the Supreme Court does not belong to the Senate Judiciary Committee, nor to this country's 800,000 lawyers, nor even to the 9 distinguished Justices themselves. Mr. Chairman, the Court belongs to the American people, and the Court belongs to the American people for one very simple, yet profound reason, because the Constitution belongs to the American people. Judge Ginsburg, in your very eloquent remarks in accepting the President's nomination, you said that you hoped to work "to the best of my ability for the advancement of law in the service of society." I salute your aspirations, but I also hope that you will bring more than just your ability, and it is prodigious, based on all of your work and writings so far, but bring more than just your ability to the High Court. I hope you will also bring your heart, your history, and your humanity. Because on this historic occasion, I can't help but recall the words of one distinguished American jurist who I believe is personally known to you, who said: "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes. Believe me, these are false hopes. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, and no court can save it." You know that was Judge Learned Hand who said that. This great Nation is about to entrust its Constitution, its laws, and its highest court to you, Judge Ginsburg, and I say that without prejudging the outcome of this nomination—kind of. [Laughter.] So I hope that liberty and equality and opportunity lie within your heart, because the hopes of millions of Americans depend on it. And if liberty and equality and the love of the law live in your heart, then the President and this committee and the American people will have made the right choice. It is my hope, Judge Ginsburg, that you will pick up the mantle of Justices Brennan and Marshall, and that you will once again 44 give voice within the Court to the aspirations and hopes of the forgotten members of our society. As a member of the Supreme Court, you will have a historic chance to nurture our living Constitution, and I use that word deliberately. In so doing, you will serve the people of this great Nation. Your rise to this position will, therefore, be our country's gain and we will all be the better for it. I again would like to extend my congratulations to you. I look forward to the substantive part of the hearings and very much welcome you and your family to this hearing today. [The prepared statement of Senator Moseley-Braun follows:] PREPARED STATEMENT OF SENATOR MOSELEY-BRAUN Mr. Chairman, I am truly honored to have the opportunity to participate in these hearings. One of a Senator's most solemn responsibilities is the duty to offer advice and consent in the nomination of a Justice to the United States Supreme Court. One of the most precious privileges an American citizen can have is to play a role in that process. Indira Gandhi once said that "If you study history, you will find that where women have risen, that country attained a high position, and wherever they remained dormant, that country slipped back." Regrettably, history teaches us that many obstacles have been placed in the way of progress for women in this country. Judge Ginsburg's own personal history—including rejection by leading law firms and by the very court to which she is nominated today—demonstrated vividly the nature of gender discrimination in this country's recent past. Now, in 1993, thanks in no small part to judge Ginsburg's efforts as an advocate for women, many—but not all—of the formal, legal obstacles to the advancement of women have been eliminated by legislative action and by judicial decisions. Judge Ginsburg, today marks only the second time in our nation's history that a woman has appeared before the Senate Judiciary Committee as a nominee to the Supreme Court. It is also the first time that any woman, let alone two, has sat as a member of this all-important body. A year ago, I watched Senate confirmation hearings with a sense of helplessness and exclusion. Our democracy once again responded, and the people of Illinois have given me the unique privilege of participating today. This is the greatest country in the world. And I believe the United States Constitution to be finest exposition of democratic principles ever written. I make these statements, Mr. Chairman, fully aware of the fact that in its original form, the Constitution included neither this Senator, as an American of African descent, nor our distinguished nominee, as a woman, in its vision of a democratic society. But the greatness of the Constitution lies in the fact that it is a living document, or as Dr. Martin Luther King Jr. once said, a "declaration of intent" regarding America's unlimited potential. A document that through an often painful process of amendment and interpretation has broadened its reach to extend to the previously excluded its promise of equality and justice for all. Over the years the Supreme Court has played a glorious role in that process. It was the Justices of our Supreme Court, in their bold, independent and faithful interpretations of our Constitution, who outlawed racial segregation in our schools, guaranteed indigent criminal defendants the right to counsel, brought wiretapping within the restrictions of the fourth amendment, demanded freedom of speech, and recognized a woman's fundamental right to control her reproductive destiny. In some of the most difficult eras of our history the Supreme Court has shown the courage to give life to the promise of the Constitution. A central issue of our time is whether that courage has been lost to timidity and partisan politics. It is troubling that the court's general approach to constitutional interpretation— the willingness of some recent nominees to embrace the jurisprudence of so-called strict construction and "original intent"—all too often has resulted in a narrow reading of the Constitution that has curtailed, rather than expanded, individual rights and has left those who are not rich, powerful or privileged with fewer rights under our precious Constitution. Regular working men and women can no longer be sure that the Supreme Court will be their champion of last resort. It is time for the Court to embark upon a bold new era, Judge Ginsburg. It is time for a new vision. 45 Over the next few days, this committee will have the opportunity to explore some of the most complicated doctrines of constitutional law with a brilliant jurist and legal scholar. These discussions are designed to illuminate Judge Ginsburg's judicial philosophy and temperament. But even as we engage in what may sometimes become a highly technical dialogue, Mr. Chairman, let us never forget that the Supreme Court does not belong to the Senate Judiciary Committee, nor to this country's 800,000 lawyers, nor even to the nine distinguished Justices themselves. No, Mr. Chairman, the Court belongs to the American people. And the Court belongs to the American people for one very simple, yet profound reason: Because the Constitution belongs to the American people. Judge Ginsburg, in your very eloquent remarks accepting your nomination, you said that you hoped to work "to the best of my ability for the advancement of the law in the service of society." I salute your aspirations, Judge Ginsburg. But, I also hope that you will bring more than your ability to the High Court. I hope that you will also bring your heart, your history, and your humanity. Because on this historic occasion, I cannot help but recall the words of one distinguished American jurist, who said, "I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws, and upon courts. These are false hopes; believe me these are false hopes. Liberty lies in the hearts of men and women * * * when it dies there no constitution, no law, no court can save it." This great nation is about to entrust its Constitution, its laws and its highest court to you, Judge Ginsburg. So I hope that liberty—and equality and opportunity—lie within your heart. Because the hopes of millions of Americans depend on it. And if liberty and equality and a love of the law live in your heart, then the President, this committee, and the American people have made the right choice. It is my hope, Judge Ginsburg, that you will pick up the mantle of Justices Brennan and Marshall and that you will once again give voice within the Court to the aspirations and hopes of the forgotten members of our society.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well stated, Senator. I thank you very much. Let me take one brief moment to explain how Senator Hatch and I have concluded we will pursue the schedule for the remainder of the day. Very briefly, I will ask Judge Ginsburg to rise and be sworn and introduce her family to us, and then invite her to make an opening statement. At the conclusion of that statement, we will recess for lunch. There have been five votes ordered to be voted in succession beginning at 2:15 this afternoon, so we will not reconvene the hearings until 3:15. At 3:15, when we reconvene, I have a very brief statement of less than a couple minutes on process, how the remainder of the hearing will be conducted from a procedural standpoint, and I will begin the first round of questions. Each Senator will be given an opportunity to have an exchange with the witness, the nominee, up to 30 minutes, at which time we will conclude the questioning of that Senator. We will not have an opportunity to have every Senator ask their first round of questions today. It is my intention to have the hearings recess approximately at 6:30, and we will reconvene then at 10 o'clock on Wednesday morning, picking up with whoever was the next questioner in line. So that is how we will proceed from a schedule standpoint. Judge, I now ask you to stand with me and be sworn: Judge, do you swear that the testimony you are about to give will be the whole truth and nothing but the truth, so help you God?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I do, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. 46 TESTIMONY OF HON. RUTH BADER GINSBURG, TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES The CHAIRMAN. Judge, now you know, after hearing the click of all those cameras, why I am so popular with the camera persons here, because after lunch they will be banished from the well. I love them all, but after you introduce your family, we are going to take a moment to banish them from the well, so that when you make your statement, you are unencumbered by their smiling faces and the click of the camera. Would you be kind enough, Judge, to introduce your family to us.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Thank you, Mr. Chairman. I have such a large family with me today, such an extended family, not just the immediate people behind me who I will introduce, but my friends, my law clerks, my secretaries. My heart is overflowing, because those are the people who have made it possible for me to be here today. But let me start with my nephew, Peter Stiepleman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Stand up, so we may all see you.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. My brother-in-law, Ed Stiepleman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Welcome.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. My wonderful sister-in-law, Claire Stiepleman. And one of my wonderful law clerks who is representing all the rest, Al Cacozza. My life's partner for 39 years, Martin Ginsburg.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Welcome. Welcome.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. And my son from the great State of Chicago, James Ginsburg.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is what most Chicagoans think, that it is a State.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. And his very special friend, Lisa Brauston.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Lisa.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. And my incredible daughter, Jane Ginsburg and Clara.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Clara, you deserve an award so far today.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. She sure does, and, you know, people think I am very serious and sober as a judge, and so when I had all you people taking photographs of me in the White House, people were trying to get me to smile, and they said think of Clara.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU have Clara smiling.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Then my grandson, Paul Spera. I must tell you that, in preparation for these hearings, I have read briefing books, opinion books, law reviews, but there is no book in the world that means as much to me as this one. This is Paul's book. It says, "My Grandma is Very, Very Special," by Paul Spera. I thank you, Paul, for this wonderful book.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I will tell you, Paul, the handwriting is good, the pictures are beautiful and you don't need a publisher. [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It ends with a map of the United States of America.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS Senator Kennedy just said, he hopes your teacher is listening to this.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. And my son-in-law, George T. Spera, Jr.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. George. 47
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. And Christine, au pair from Belgium, who has been taking such wonderful care of the children. Then, on behalf of my cousins who I reckon by the dozen, Stephen Hess.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Stephen, welcome. You have quite a family and we welcome you all here today. It is obviously a very proud moment for you, and this is a proud moment for the photographers, because they get to stand and be seen on television as they walk out of the well. [Laughter.] Thank you all. While they are moving, I want those listening to understand I have not banished them from the hearing. They will recede into the various places for which this room was designed to be able to take their photographs, so they will continue to be able to do their job. One of our colleagues who has just arrived has a statement, and I will ask him whether or not he would prefer to deliver it before or after the nominee makes her statement.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. I apologize, Mr. Chairman. I was in the Commerce Committee where I am the ranking member. We had an air safety hearing, and I went through a long morning. I will greatly summarize my statement. What do you prefer? What does the chairman prefer?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is fine, Senator, you go right ahead, and then we will go to your statement.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Welcome, Judge Ginsburg. You and I share something in common. This is our first U.S. Supreme Court confirmation hearing. I am very much impressed with your legal background. You are a pioneer in the field of gender discrimination, and your long line of legal victories has secured fundamental rights for both women and men. As stated in my conversation with you in my office several weeks ago, I am very interested in how you would approach cases of particular interest to those of us living in the West. In my part of the country, many legal controversies arise over how the law of the land is applied to the use of the land. Environmental law, water law, hunting and fishing rights, mineral rights, access to public lands, private property rights, and cases and controversies arising in Indian country—these are everyday issues that affect everyday people living in the West. The Court's treatment of these issues dramatically affects the way of life of the people of the West, including my home State of South Dakota. I certainly am not looking for your position on these issues. After all, you are not campaigning for an elected office. Nor are you a political appointee. You have been nominated to be a Justice on the highest court in the land. We on this committee and our colleagues in the Senate are charged with the responsibility to confirm or not confirm you for this high office. Some writers have commented that the Senate is the last opportunity for the people to have a voice in determining who shall sit on the Nation's highest Court. Supreme Court Justices are appointed for life. Once you are seated on the Court, the American people will have to coexist with Jus- 48 tice Ginsburg for as long as you choose to stay, or God chooses to keep you there. Before I cast my vote on your confirmation, I would like to know how familiar you are with the issues I referenced, your inclination to learn more about them, and how you intend to go about deciding cases involving these issues. Indeed, on Indian country issues, I note in the papers that even the State of Connecticut has a dispute over Indian lands and Indian jurisdiction. Both Indians and non-Indians on or near reservations are eager to resolve some of these issues, and many of them go to the Supreme Court. Through these specific issues, I hope to learn more about your general approach to the basic principles of judging, principles such as fairness and objectivity. There also are many issues that go to the Supreme Court regarding hunting and fishing rights, such as on the Missouri River. There are cases that go to the Supreme Court about the tribal courts, which are quite different from the U.S. Federal district courts. Indian cases significantly contribute to the work overload of Federal judges in my State. In the course of the next few days, I hope we can have a dialogue on issues of concern to the people in the West, but not only in the West, but throughout the United States, because everyone is concerned about these issues. And the Supreme Court ends up deciding more of them than Congress, perhaps because Congress is unwilling. Maybe I should criticize our own institution. In the interest of time, I ask unanimous consent to be able to submit the remainder of my statement for the record. I shall be asking many questions on Indian country jurisdiction.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Without objection, it will be entered in the record. I thank you, Senator.
Senator Larry Pressler (SD)
Senator
(R)
[The prepared statement of Senator Pressler follows:] PREPARED STATEMENT OF SENATOR PRESSLER Welcome, Judge Ginsburg. You and I share something in common—this is our first U.S. Supreme Court confirmation hearing. I look forward to them very much, as I'm sure you do. Judge Ginsburg, you have a most impressive legal background. You are a pioneer in the field of gender discrimination. Your long line of legal victories has secured fundamental rights for both women and men. Your distinguished place in the annals of American law already is secure. The volume of your writings is astounding. My staff has filled nearly three dozen large three-ring binders to contain them. In reading your articles and decisions, one receives an education on a wide range of legal subjects. I commend you for the prolific contributions you have made to the law. As stated in my conversation with you in my office several weeks ago, I am very interested in how you would approach cases of particular interest to those of us living in the West. In my part of the country, many legal controversies arise over how the law of the land is applied to the use of the land. Environmental law, water law, hunting and fishing rights, mineral rights, access to public lands, private poverty rights, and cases and controversies arising in Indian Country—these are everyday issues that affect everyday people living in the West. The Court's treatment of these issues dramatically affect the way of life of the people of the West, including my home state of South Dakota. I certainly am not looking for your "position" on these issues. After all, you are not campaigning for an elected office. Nor are you a political appointee. You have been nominated to be a justice on the highest court of this land. We on this Committee and our colleagues in the Senate are charged with the responsibility to confirm or not confirm you for this high office. Some writers have 49 commented that the Senate is the last opportunity for the people to have a voice in determining who shall sit on the nation s highest court. Supreme Court justices are appointed for life. Once you are seated on the Court, the American people will have to coexist with Justice Ginsburg for as long as you choose to stay, or God chooses to keep you there. The people will have no say about your tenure. Before I can cast my vote on your confirmation, I would like to know how familiar you are with the issues I referenced, you inclination to learn more about them, and how you intend to go about deciding cases involving these issues. Through these specific issues, I hope to learn more about your general approach to the basic principles of judging—principles such as fairness and objectivity. Over the course of the next few days, I hope we can have a dialogue on issues of concern to people in the West. I believe we can learn from each other in the process. Once again, welcome to this hearing. I look forward to your testimony.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, the floor is now yours. Again, welcome.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Thank you, Mr. Chairman, Senator Hatch, and other members of the committee. May I say first how much I appreciate the time committee members took to greet me in the weeks immediately following the President's nomination. It was a particularly busy time for you, and I thank you all the more for your courtesy. To Senator Moynihan, who has been at my side every step of the way, a thousand thanks could not begin to convey my appreciation. Despite the heavy demands on his time, during trying days of budget reconciliation, he accompanied me on visits to Senate members, he gave over his own desk for my use, he buoyed up my spirits whenever a lift was needed. In all, he served as the kindest, wisest counselor a nominee could have. Senator D'Amato, from my great home State of New York, volunteered to join Senator Moynihan in introducing and sponsoring me, and I am so grateful to him. I have had many enlightening conversations in Senate Chambers since June 14, but my visit with Senator D'Amato was sheer fun.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It always is. [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. My children decided at an early age that mother's sense of humor needed improvement. They tried to supply that improvement, and kept a book to record their successes. The book was called "Mommy Laughed." My visit with Senator D'Amato would have supplied at least three entries for the "Mommy Laughed" book. Representative Norton has been my professional colleague and friend since days when we were still young. As an advocate of human rights and fair chances for all people, Eleanor Holmes Norton has been as brave and as vigilant as she is brilliant. I am so pleased that she was among my introducers, and so proud to be one of Eleanor's constituents. Most of all, the President's confidence in my capacity to serve as a Supreme Court Justice is responsible for the proceedings about to begin. There are no words to tell him what is in my heart. I can say simply this: If confirmed, I will try in every way to justify his faith in me. I am, as you know from my responses to your questionnaire, a Brooklynite, born and bred—a first-generation American on my father's side, barely second-generation on my mother's. Neither of my parents had the means to attend college, but both taught me to love learning, to care about people, and to work hard for whatever 50 I wanted or believed in. Their parents had the foresight to leave the old country, when Jewish ancestry and faith meant exposure to pogroms and denigration of one's human worth. What has become of me could happen only in America. Like so many others, I owe so much to the entry this Nation afforded to people yearning to breathe free. I have had the great fortune to share life with a partner truly extraordinary for his generation, a man who believed at age 18 when we met, and who believes today, that a woman's work, whether at home or on the job, is as important as a man's. I attended law school in days when women were not wanted by most members of the legal profession. I became a lawyer because Marty and his parents supported that choice unreservedly. I have been deeply moved by the outpouring of good wishes received in recent weeks from family, neighbors, camp mates, classmates, students at Rutgers and Columbia, law-teaching colleagues, lawyers with whom I have worked, judges across the country, and many women and men who do not know me. That huge, spirit-lifting collection shows that for many of our people, an individual's sex is no longer remarkable or even unusual with regard to his or her qualifications to serve on the Supreme Court. Indeed, in my lifetime, I expect to see three, four, perhaps even more women on the High Court Bench, women not shaped from the same mold, but of different complexions. Yes, there are miles in front, but what a distance we have traveled from the day President Thomas Jefferson told his Secretary of State: 'The appointment of women to [public] office is an innovation for which the public is not prepared." "Nor," Jefferson added, "am I." The increasingly full use of the talent of all of this Nation's people holds large promise for the future, but we could not have come to this point—and I surely would not be in this room today—without the determined efforts of men and women who kept dreams of equal citizenship alive in days when few would listen. People like Susan B. Anthony, Elizabeth Cady Stanton, and Harriet Tubman come to mind. I stand on the shoulders of those brave people. Supreme Court Justices are guardians of the great charter that has served as our Nation's fundamental instrument of government for over 200 years. It is the oldest written constitution still in force in the world. But the Justices do not guard constitutional rights alone. Courts share that profound responsibility with Congress, the President, the States, and the people. Constant realization of a more perfect Union, the Constitution's aspiration, requires the widest, broadest, deepest participation on matters of government and government policy. One of the world's greatest jurists, Judge Learned Hand, said, as Senator Moseley-Braun reminded us, that the spirit of liberty that imbues our Constitution must lie first and foremost in the hearts of the men and women who compose this great Nation. Judge Hand defined that spirit, in a way I fully embrace, as one which is not too sure that it is right, and so seeks to understand the minds of other men and women and to weigh the interests of others alongside its own without bias. The spirit Judge Learned Hand described strives for a community where the least shall be heard and 51 considered side by side with the greatest. I will keep that wisdom in the front of my mind as long as I am capable of judicial service. Some of you asked me during recent visits why I want to be on the Supreme Court. It is an opportunity beyond any other for one of my training to serve society. The controversies that come to the Supreme Court, as the last judicial resort, touch and concern the health and well-being of our Nation and its people. They affect the preservation of liberty to ourselves and our posterity. Serving on this Court is the highest honor, the most awesome trust, that can be placed in a judge. It means working at my craft—working with and for the law—as a way to keep our society both ordered and free. Let me try to state in a nutshell how I view the work of judging. My approach, I believe, is neither liberal nor conservative. Rather, it is rooted in the place of the judiciary, of judges, in our democratic society. The Constitution's preamble speaks first of "We, the People," and then of their elected representatives. The judiciary is third in line and it is placed apart from the political fray so that its members can judge fairly, impartially, in accordance with the law, and without fear about the animosity of any pressure group. In Alexander Hamilton's words, the mission of judges is "to secure a steady, upright, and impartial administration of the laws." I would add that the judge should carry out that function without fanfare, but with due care. She should decide the case before her without reaching out to cover cases not yet seen. She should be ever mindful, as Judge and then Justice Benjamin Nathan Cardozo said, "Justice is not to be taken by storm. She is to be wooed by slow advances." We—this committee and I—are about to embark on many hours of conversation. You have arranged this hearing to aid you in the performance of a vital task, to prepare your Senate colleagues for consideration of my nomination. The record of the Constitutional Convention shows that the delegates had initially entrusted the power to appoint Federal judges, most prominently Supreme Court Justices, not to the President, but to you and your colleagues, to the Senate acting alone. Only in the waning days of the Convention did the Framers settle on a nomination role for the President and an advice and consent role for the Senate. The text of the Constitution, as finally formulated, makes no distinction between the appointment process for Supreme Court Justices and the process for other offices of the United States, for example, Cabinet officers. But as history bears out, you and Senators past have sensibly considered appointments in relation to the appointee's task. Federal judges may long outlast the President who appoints them. They may serve as long as they can do the job. As the Constitution says, they may remain in office "during good Behaviour." Supreme Court Justices, most notably, participate in shaping a lasting body of constitutional decisions. They continuously confront matters on which the Framers left things unsaid, unsettled, or uncertain. For that reason, when the Senate considers a Supreme Court nomination, the Senators are properly concerned about the 52 nominee's capacity to serve the Nation, not just for the here and now, but over the long term. You have been supplied, in the 5 weeks since the President announced my nomination, with hundreds of pages about me and thousands of pages I have penned—my writings as a law teacher, mainly about procedure; 10 years of briefs filed when I was a courtroom advocate of the equal stature of men and women before the law; numerous speeches and articles on that same theme; 13 years of opinions—counting the unpublished together with the published opinions, well over 700 of them—all decisions I made as a member of the U.S. Court of Appeals for the District of Columbia Circuit; several comments on the roles of judge and lawyers in our legal system. That body of material, I know, has been examined by the committee with care. It is the most tangible, reliable indicator of my attitude, outlook, approach, and style. I hope you will judge my qualifications principally on that written record, a record spanning 34 years, and that you will find in that written record assurance that I am prepared to do the hard work and to exercise the informed, independent judgment that Supreme Court decisionmaking entails. I think of these proceedings much as I do of the division between the written record and briefs, on the one hand, and oral argument on the other hand, in appellate tribunals. The written record is by far the more important component in an appellate court's decisionmaking, but the oral argument often elicits helpful clarifications and concentrates the judges' minds on the character of the decision they are called upon to make. There is, of course, this critical difference. You are well aware that I come to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to court based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process. Similarly, because you are considering my capacity for independent judging, my personal views on how I would vote on a publicly debated issue were I in your shoes—were I a legislator—are not what you will be closely examining. As Justice Oliver Wendell Holmes counseled, "[O]ne of the most sacred duties of a judge is not to read [her] convictions into [the Constitution]." I have tried and I will continue to try to follow the model Justice Holmes set in holding that duty sacred. I see this hearing, as I know you do, as a grand opportunity once again to reaffirm that civility, courtesy and mutual respect prop- 53 erly keynote our exchanges. Judges, I am mindful, owe the elected branches—the Congress and the President—respectful consideration of how court opinions affect their responsibilities. And I am heartened by legislative branch reciprocal sensitivity. As one of you said 2 months ago at a meeting of the Federal Judges Association, We in Congress must be more thoughtful and more deliberate in order to enable judges to do their job more effectively. As for my own deportment or, in the Constitution's words, "good Behaviour," I prize advice received on this nomination from a dear friend, Frank Griffin, a recently retired Justice of the Supreme Court of Ireland. Justice Griffin wrote: "Courtesy to and consideration for one's colleagues, the legal profession, and the public are among the greatest attributes a judge can have." It is fitting, as I conclude this opening statement, to express my deep respect for, and abiding appreciation to Justice Byron R. White for his 31 years and more of fine service on the Supreme Court. In acknowledging his colleagues' good wishes on the occasion of his retirement, Justice White wrote that he expects to sit on U.S. courts of appeals from time to time, and so to be a consumer of, instead of a participant in, Supreme Court opinions. He expressed a hope shared by all lower court judges. He hoped the Supreme Court's mandates will be clear and crisp, leaving as little room as possible for disagreement about their meaning. If confirmed, I will take that counsel to heart and strive to write opinions that both "get it right" and "keep it tight." Thank you for your patience. [The prepared statement and the initial questionnaire of Judge Ginsburg follow:] PREPARED STATEMENT OF JUDGE GINSBURG Mr. Chairman, Senator Hatch, and other members of the Committee, may I say first how much I appreciate the time Committee members took to greet me in the weeks immediately following the President's nomination. It was a particularly busy time for you, and I thank you all the more for your courtesy. To Senator Moynihan, who has been at my side every step of the way, a thousand thanks could not begin to convey my appreciation. Despite the heavy demands on his time, during trying days of budget reconciliation, he accompanied me on visits to Senate members, gave over his own desk for my use, buoyed up my spirits whenever a lift was needed, and served as the kindest, wisest counselor a nominee could have. Senator D'Amato volunteered to join Senator Moynihan in introducing and sponsoring me, and I am so grateful to him. I have had many enlightening conversations in Senate chambers since June 14, but my visit with Senator D'Amato was sheer fun. My children decided at en early age that their mother's sense of humor needed improvement. They tried to supply that improvement, and kept a book to record their successes; the book was called: "Mommy Laughed." My visit with Senator D'Amato would have supplied at least three entries for the "Mommy Laughed" book. Representative Norton has been a professional colleague and friend since days when we were very young. As an advocate of human rights and fair chances for all people, she has been as courageous and vigilant as she is intelligent. I am so pleased that she is among my introducers, and so proud to be one of Eleanor's constituents. Most of all, the President's confidence in my capacity to serve as a Supreme Court Justice is responsible for the proceedings about to begin. There are no words to tell him what is in my heart. I can say simply this: if confirmed, I will try in every way to justify his faith in me. I am, as you know from my responses to your questionnaire, Brooklynite born and bred—a first generation American on my father's side, barely second generation on my mother's. Neither of my parents had the means to attend college, but both taught me to love learning, to care about people, and to work hard for whatever I 54 wanted or believed in. Their parents had the foresight to leave the "old country" when Jewish ancestry and faith meant exposure to pogroms and denigration of one's human worth. What has become of me could happen only in America. Like so many others, I owe so much to the entry this nation afforded to people "yearning to breathe free." I have had the great fortune to share life with a partner truly extraordinary for his generation, a man who believed at age 18 when we met, and who believes today, that a woman's work—at home or on the job—is as important as a man's. I became a lawyer, in days when women were not wanted by most members of the legal profession, because Marty and his parents supported that choice unreservedly. I have been deeply moved by the outpouring of good wishes received in recent weeks from family, neighbors, campmates, classmates, students at Rutgers and Columbia, law-teaching colleagues, lawyers with whom I have worked, judges across the country, and many women and men who do not know me. That huge, spiritlifting collection shows that for many of our people, an individual's sex is no longer remarkable, or even unusual, with regard to his or her qualifications to serve on the Supreme Court. Indeed, in my lifetime, I expect to see three, four, and perhaps even more women on the High Court bench, women not shaped from the same mold, but of different complexions. Yes, there are still miles in front, but what a distance we have traveled from the day President Thomas Jefferson told his Secretary of State: "The appointment of women to [public] office is an innovation for which the public is not prepared. Nor," Jefferson added, "am I." The increasingly full use of the talent of all of this nation's people holds large promise for the future, but we could not have come to this point—and I surely would not be in this room today—without the determined efforts of men and women who kept dreams of equal citizenship alive in days when few would listen. People like Susan B. Anthony, Elizabeth Cady Stanton, and Harriet Tubman come to mind. I stand on the shoulders of those brave people. Supreme Court Justices are guardians of the great charter that has served as our nation's fundamental instrument of government for over 200 years, the oldest written Constitution still in force in the world. But the Justices do not guard constitutional rights alone. Courts share that profound responsibility with the Congress, the President, the States, and the People. Constant realization of a more perfect union, the Constitution's aspiration, requires the widest, broadest, deepest participation on matters of government and government policy. One of the world's greatest jurists, Judge Learned Hand, said that the spirit of liberty that imbues our Constitution must lie, first and foremost, in the hearts of the men and women who compose this great nation. He defined that spirit, in a way I fully embrace, as one which is not too sure that it is right, and so seeks to understand the minds of other men and women and to weigh the interests of others alongside its own without bias. The spirit Judge Learned Hand described strives for a community where the least shall be heard and considered side by side with the greatest. I will keep that wisdom in the front of my mind as long as I am capable of judicial service. Some of you asked me, during recent visits, why I want to be on the Supreme Court. It is an opportunity, beyond any other, for one of my training to serve society. The controversies that come to the Supreme Court, as the last judicial resort, touch and concern the health and well-being of our nation and its people; they affect the preservation of liberty to ourselves and our posterity. Serving on this Court is the highest honor, the most awesome trust that can be placed in a judge. It means working at my craft—working with and for the law—as a way to keep our society both ordered and free. Let me try to state in a nutshell how I view the work of judging. My approach, I believe, is neither "liberal" nor "conservative." Rather, it is rooted in the place of the judiciary—of judges—in our democratic society. The Constitution's preamble speaks first of We, the People, and then of their elected representatives. The Judiciary is third in line, and it is placed apart from the political fray so that its members can judge fairly, impartially, in accordance with the law and without fear about the animosity of any pressure group. In Alexander Hamilton's words: the mission of judges is "to secure a steady, upright, and impartial administration of the laws." I would add that the judge should carry out that function without fanfare, but with due care: she should decide the case before her without reaching out to cover cases not yet seen. She should be ever mindful, as Judge and then Justice Benjamin Nathan Cardozo said: "Justice is not to be taken by storm. She is to be wooed by slow advances." 55 We—this Committee and I—are about to embark on many hours of conversation. You have arranged this hearing to aid you in the performance of a vital task—to prepare your Senate colleagues for consideration of my nomination. The record of the Constitutional Convention shows that the delegates had initially entrusted the power to appoint federal judges, most prominently, Supreme Court Justices, not to the President, but to you and your colleagues—to the Senate, acting alone. Only in the waning days of the Convention did the framers settle on a nomination role for the President, and an advice and consent role for the Senate. The text of the Constitution, as finally formulated, makes no distinction between the appointment process for Supreme Court Justices, and the process for other officers of the United States, for example, cabinet officers. But as history bears out, you and Senators past have sensibly considered appointments in relation to the appointee's task. Federal judges may long outlast the President who appoints them. They may serve as long as they can do the job, as the Constitution says, they may remain in office "during good Behaviour." Supreme Court Justices, particularly, participate in shaping a lasting body of constitutional decisions; they continuously confront matters on which the Framers left many things unsaid, unsettled, or uncertain. For that reason, when the Senate considers a Supreme Court nomination, the Senators are properly concerned about the nominee's capacity to serve the nation, not just for the here and now, but over the long term. You have been supplied, in the five weeks since the President announced my nomination, with hundreds of pages about me, and thousands of pages I have penned— my writings as a law teacher, mainly about procedure; ten years of briefs filed when I was a courtroom advocate of the equal stature of men and women before the law; numerous speeches and articles on that same theme; thirteen years of opinions— well over 700 of them—decisions I made as a member of the U.S. Court of Appeals for the District of Columbia Circuit; several comments on the roles of judges and lawyers in our legal system. That body of material, I know, has been examined by the Committee with care. It is the most tangible, reliable indicator of my attitude, outlook, approach, and style. I hope you will judge my qualifications principally on that written record spanning thirty-four years, and that you will find in it assurance that I am prepared to do the hard work, and to exercise the informed and independent judgment that Supreme Court decisionmaking entails. I think of these proceedings much as I do of the division between the written record and briefs, on the one hand, and oral argument on the other hand, in appellate tribunals. The written record is by far the more important component in an appellate court's decisionmaking, but the oral argument often elicits helpful clarifications and concentrates the judges' minds on the character of the decision they are called upon to make. There is, of course, this critical difference. You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process. Similarly, because you are considering my capacity for independent judging, my personal views on how I would vote on a publicly debated issue were I in your shoes—were I a legislator—are not what you will be closely examining. As Justice Oliver Wendell Holmes counseled: "[O]ne of the most sacred duties of a judge is not to read [her] convictions into [the C]onstitution[]." I have tried, and I will continue to try, to follow the model Justice Holmes set in holding that duty sacred. I see this hearing, as I know you do, as a grand opportunity once again to reaffirm that civility, courtesy, and mutual respect properly keynote our exchanges. Judges, I am mindful, owe the elected branches—the Congress and the President—respectful consideration of how court opinions affect their responsibilities. And I am heartened by legislative branch reciprocal sensitivity. As one of you said two months ago at a meeting of the Federal Judges Association: "We in Congress must be more thoughtful and deliberate in order to enable judges to do their job more effectively." As for my own deportment or, in the Constitution's words, "good Behaviour," I prize advice received on this nomination from a dear friend, Frank Griffin, a recently retired Justice of the Supreme Court of Ireland. Justice Griffin wrote: "Cour75-974 0-94— 3 56 tesy to and consideration for one's colleagues, the legal profession, and the public are among the greatest attributes a judge can have." It is fitting, as I conclude this opening statement, to express my deep respect for, and abiding appreciation to Justice Byron R. White for his thirty-one years and more of fine service on the Supreme Court. In acknowledging his colleagues' good wishes on the occasion of his retirement, Justice White wrote that he expects to sit on U.S. Courts of Appeals from time to time, and so to be a consumer of, instead of a participant in, Supreme Court opinions. He expressed a hope shared by all lower court judges; he hoped "the [Supreme] Court's mandates will be clear [and] crisp, * * * leavting] as little room as possible for disagreement about their meaning. If confirmed, I will take the counsel to heart and strive to write opinions that both "get it right" and "keep it tight."
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Welcome back, Judge. I see your grandson has joined the photographers' corps. I could see him there. I tell you what. Your family covers it all. As I indicated this morning, before I begin the first round I have a very brief few comments to make about procedure, not merely in terms of timing, but how procedurally this Supreme Court nomination will be handled differently than any that has been handled thus far, at least any of the others that I have handled. It is somewhat of an outgrowth of some of the contentious fights that we have had, and hopefully it will make the process a little better. First, as I have indicated, although we will be limited in our rounds of questioning to a certain amount of time, no Senator who has a question will be denied the opportunity to ask that question no matter how many rounds it may take them to do that. That is always a dangerous thing, Judge, to say with Senator Specter here because he always has a 7th, 8th, or 20th round, but they are always good questions. But we will not cut anyone off. Judge, you referred in your statement to the nature of questions that you will answer. On this question, constitutional scholars and Senate precedents agree. A Senator has not only the right, but the duty to weigh carefully a nominee's judicial philosophy and, even more importantly, the consequences of that philosophy for the country. And as I have stated in past confirmation hearings, my questions about a nominee's judicial philosophy are not aimed at getting answers about specific cases. You have said you would object, as in my view you should, to being asked to prejudge a case likely to come before the Supreme Court. Even if you did answer the question, it wouldn't, for me at least, tell me much about your judicial philosophy. I have said many times and I want you to know that I believe my duty obliges me to learn how nominees will decide, not what they will decide, but how they will decide. This obligation for Senators to inquire into and understand the judicial philosophies of a Supreme Court nominee is neither new nor disputed any longer, although it was disputed recently. Chief Justice William Rehnquist recognized this as long ago as 1959, when he called in the Harvard Law Record for restoring what he referred to as the Senate's practice of "thoroughly informing itself on the judicial philosophy of a Supreme Court nominee before voting to confirm him." Were he saying it today, he would say "her." Judge Ginsburg, the other side of the coin is you must decide, of course, how to reply to our questions. There is nothing in the Constitution requiring you to reply. You can either give a full answer, a partial answer, no answer, or you can get up and you can walk out of here because, to remind everyone, this is only a part of the process. Our function here is—there is nothing in the Constitution 115 that talks about the Judiciary Committee. It talks about the Senate. The way in which the Senate has organized itself, it looks to the committee to give it information regarding the views of a nominee, but there is nothing in the Constitution that obliges you to answer any question in any particular way or, indeed, answer at all. We must arrive at our judgment about your confirmation, though. As a matter of fact, without mentioning the Justice, there was one Justice named, a former Senator and a former judge. The committee asked him to come before the committee, and he said, No. My record stands as a judge and a Senator. I am not going to take the time. He refused to show up, and they still confirmed him. I wouldn't recommend that, but to make the point for everyone to understand, there is no constitutional obligation for you to respond. Now, I would hope, as I said to you very briefly, that the way in which you outlined the circumstances under which you would reply and not reply, that you will not make a blanket refusal to comment on things because obviously everything we could ask you is bound to come before the Court. There is not a controversial issue in this country that does not have a prospect of coming before the Court someday. And as we have said, because I think it was initiated by Senator DeConcini, I voted for a man who I have great respect for, but it is the vote that I most regret of all 15,000 votes I have cast as a Senator. I voted to confirm Judge Scalia. He is a fine, honorable, decent man with whom I agree on nothing. And I regret that vote. One of the reasons I voted for him is that, while he was a brilliant scholar with standing and background, he basically refused to answer questions on anything at all. And I voted for him, and from that moment on, along with Senator DeConcini, I resolved that if a nominee, although it is their right, does not answer questions that don't go to what they would decide, but how they would decide, I will vote against that nominee regardless of who it is. And you can thank Justice Scalia for that. With that object in mind, I would like to very briefly describe in another 3 minutes here the process by which these hearings will be conducted. All Senators on the committee, as I said, will have as much time to ask questions as they feel they should; and you, Judge, will have as much time as you need to speak to anything, whether or not you are asked a question. I would hope—at this point it seems possible—that we could conclude these hearings by week's end. If we do not conclude by Friday, it is my intention at this moment—but I will confer with the ranking member—to continue on Saturday with the hearings. Following the conclusion of the last confirmation hearing for the last Justice, I felt obliged to reexamine and attempt to reform the investigative procedures which are an important part of this confirmation process. I believe the committee had to better handle allegations of a personal nature which are inevitably brought against Supreme Court nominees, and they are brought against all nominees. There are none that I am aware of with regard to you, but there are specious allegations and there are substantive allegations on occasion. It is hard at the outset to determine one from the other until we begin the investigative process. 116 So I have instituted a new procedure. I announced last summer and again last week that this committee will hold a closed hearing for every Supreme Court nominee, while I am the chairman at least. Beginning with you, there will be a closed hearing at one point. It will be, in this case, on Friday. This is a new procedure adopted for the first time in this hearing, and it does not imply the need to discuss any adverse information with regard to you, Judge, but it is now going to be a standard part of all hearings. Whether or not any allegation is raised, we will at some point for every nominee from this point on go into a closed session, where only the Senators on the committee and the nominee are there, to discuss any investigative matter that has been raised. Under rule XXVI of the Senate, any information that can be potentially embarrassing allows us to go into closed session, and embarrassing information can be real or false, nonetheless embarrassing under these klieg lights. Under that rule XXVI, which permits the committee to go into closed session to protect the privacy of a nominee in considering confidential information, there is also an important caveat; that is, that every Senator, under the rules, at such a hearing, a closed session, is obliged under Senate rules, with the potential sanction of expulsion from the Senate, to keep confidential any matter that is raised in that setting. The press has asked me since I announced this rule, "What about the public's right to know?" The committee will decide at that point whether or not there is any grounding to any allegation that has been raised. If there is grounding, then we will end up going public, and the public will have a right to know and make a determination. One other procedural rule that has changed is that all investigative matters will be open to every single, solitary U.S. Senator— only Senators, not their staffs—beyond this committee. And anyone who comes forward with an allegation—and I announced this last year—should know at the outset that every Senator in the U.S. Senate, all 100, will be made aware under Senate rules, which require confidential information to be protected, of that allegation, so we do not go through a process whereby Senators, rightly or wrongly, think they were not fully informed prior to the vote being taken and so that we do not go through the process where the only way they can be aware of such information is to make it public. So at some point when this hearing closes down, the Senate Judiciary Committee room will be closed off, just like the room of the Intelligence Committee is. Investigative staff, nine of them, majority and minority, will be in that room for a day, period. Any Senator in the U.S. Senate can go into that room, get fully briefed by that staff, read any documents we have, so that they are fully informed. Again, I want to emphasize, Judge, this procedure has nothing to do with you. You are not only an honorable person, but everything I have heard about you, every matter that our committee has investigated, everything, is perfectly squeaky clean. And so I am not suggesting—but we are going to institute it, and it is nice to start with you. It is nice to start with someone where we are not going to have to spend a lot of time. But honorable people have had 117 the most outrageous charges raised against them, a case in point being the Attorney General of the United States. When she was nominated, some of the most outrageous charges were drawn to the attention of me personally and the investigative staff. We investigated them, found them without any foundation. It would have been extremely embarrassing and degrading and, I think, damaging had that taken place under the full glare of the Senate lights. This new procedure is meant to avoid that, to separate the chaff from the wheat, and I just want to make that clear as we begin. Now, let's get down to business. I ask the staff to kick off the clock. We are going to have 30-minute rounds, and Judge, at any time at all, I would ask someone from the White House who may be with you to indicate to me when it is appropriate to take a break, because we will forget. We get to get up and walk out of here after we have our questions and go back and get coffee or take a call or whatever, and you have to sit there the whole time. So if I trespass at all on your physical constitution, I want to be made aware of that. But I will say now we will try to go for a total of up to 2 hours from this point on, try to get four Senators in. We will break very briefly to give you a rest. Then we will come back and continue again until roughly the 6:30 hour. Is that agreeable with you, Judge?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That is fine, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It must be an unusual role, for so many years, you sitting up here and having litigants down there. This is one of the few we get to do this and one of the few of my duties in the Senate that I don't particularly enjoy, although in your case it has been a pleasure thus far. Let me begin now with the questioning. I would like to begin by asking you about how you will go about interpreting our Constitution, Judge. Judges, as you know better than I do, approach this job in many different ways, and these different approaches often lead to very different results. You have made a great many statements about constitutional interpretation as a scholar and as a judge in lectures that you have delivered—most recently in a talk you gave this year which is referred to as the Madison Lecture. In that lecture, you said—and I am quoting here—that "Our fundamental instrument of Government is an evolving document." You also said you rejected the notion "that the great clauses of the Constitution must be confined to the interpretation which the Framers would have placed on them." I could not agree more. If the meaning of the Constitution did not evolve over time, today we would not have many of the individual rights all Americans now hold most dear, like the right to choose whomever we wish to marry. There is nothing in the Constitution, as you know, that gives someone a constitutional right to marry whom they want. It is not specifically enumerated. And were that not changed in Loving v. Virginia, there would still be laws on the books saying blacks can't marry whites and whites can't marry blacks. Or the right to get a job, whoever you are, whether you are white or black, male or female. But, still, there are hard questions about precisely how the Constitution evolves, about when the Court should recognize a right not specifically mentioned in the Constitution or specifically con- 118 templated by the authors of that document at that moment, whether it is an amendment or the core of the Constitution. You spoke of these questions at some length in the Madison Lecture. You said that the history of the U.S. Constitution is in large part a story of—and I quote—"the extension of the constitutional rights and protections" to include "once excluded groups." Judge, can you discuss with me for a moment what allows courts to recognize rights like the right to marry whomever you wish, like the right to be employed or not employed without regard to gender, like the right that was mentioned here earlier by several of my colleagues in the opening statements for women to be included in— I thought the phrase that Eleanor Holmes Norton used was "within the embrace of the 14th amendment," or something to that effect, when, in fact, they were not contemplated to be part of that amendment when it was written. What is it that allows the Court to recognize such rights that the drafters of the Constitution or specific amendments did not mention or even contemplate at the time the amendment, in the case of the 14th amendment, or the Constitution and the Bill of Rights were drafted?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. That is a large question, Mr. Chairman, and I will do my best to respond. First, I think the credit goes to the Founders. When I visited Senator Thurmond, he was kind enough to give me a pocket Constitution.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I think that was Sam Ervin's. Did you give her Senator Ervin's pocket Constitution?
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I gave her a Thurmond Constitution. That is the U.S. Constitution.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. But this pocket Constitution contains another document, and it is our basic rights-declaring document. It is the Declaration of Independence, the Declaration that created the United States. I think the Framers are shortchanged if we view them as having a limited view of rights, because they wrote, Thomas Jefferson wrote, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these"—among these—"are life, liberty, and the pursuit of happiness," and that government is formed to protect and secure those rights. Now, when the Constitution was written, as you know, there was much concern over a Bill of Rights. There were some who thought a Bill of Rights dangerous because one couldn't enumerate all the rights of the people; one couldn't compose a complete catalog. The thing to do was to limit the powers of government, and that would keep government from trampling on people's rights. But there was a sufficient call for a Bill of Rights, and so the Framers put down what was in the front of their minds in the Bill of Rights. Let's look at the way rights are stated in the Bill of Rights in contrast to the Declaration of Independence, let's take liberty as it appears in the fifth amendment. The statement in the fifth amendment—"nor shall any person be deprived of life, liberty, or property, without due process of law"— is written as a restriction on the government. The Founders had 119 already declared in the Declaration that liberty is an unalienable right, and the government is accordingly warned to keep off, both in the structure of the Constitution, which limits the powers of government, and in the Bill of Rights. And, as you also know, Mr. Chairman, the Framers were fearful that this limited catalog might be perceived—even though written as a restriction on government rather than as a grant of rights to people—as skimpy, as not stating everything that is. And so we have the ninth amendment, which states that the Constitution shall not be construed to deny or disparage other rights. You might contrast our Bill of Rights with the great 1789 French Declaration of the Rights of Man, which does appear to grant or confer rights, for example, the state grants citizens a right to speak freely. But our Bill of Rights doesn't say the state gives one a right to speak. It says Congress shall make no law abridging the freedom of speech. So the whole thrust of it is that people have rights, and government must be kept from trampling on them. And the rights are stated with great breadth in the Declaration of Independence. Now, it is true—and it is a point I made in the Madison Lecture—that the immediate implementation in the days of the Founding Fathers in many respects was limited. "We the People" was not then what it is today. The most eloquent speaker on that subject was Justice Thurgood Marshall, during the series of bicentennial celebrations, when songs in full praise of the Constitution were sung. Justice Marshall reminded us that the Constitution's immediate implementation, even its text, had certain limitations, blind spots, blots on our record. But he said that the beauty of this Constitution is that, through a combination of judicial interpretation, constitutional amendment, laws passed by Congress, "We the People" has grown ever larger. So now it includes people who were once held in bondage. It includes women who were left out of the political community at the start. I hope that begins to answer your question. The view of the Framers, their large view, I think was expansive. Their immediate view was tied to the circumstances in which they lived.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, it does answer the question, and I am delighted, to be very blunt about it, with the answer. As I have indicated to you and said on numerous occasions over my 20 years in the Senate, I do not expect a nominee nor demand of a nominee to agree with me on substantive issues. But it does make a difference to me and give me, at least, some insight into the view of the past history and the future of this Nation that a nominee has, the vision they have, if I know the place from which they believe our rights are derived. And you have made a fundamental distinction from other nominees that have been before this committee in the past decade, in that you acknowledge there is a ninth amendment. You have no idea what a milestone that is in this committee. And I am being a bit facetious, but we had one nominee who said the ninth amendment was "nothing but an ink blot on the Constitution." But your emphasis that whereby we derive rights, the courts over the years have derived rights, or expanded a concept which at the time the Constitution was written, it did not embrace a specific circumstance, you have indicated, as I understand your answer, 75-97 4 0-94— 5 120 that you start off with the position, which I happen to share, that this is a limited Government. We do not derive our rights as human beings from a piece of paper called the Constitution. The Government derives its rights from "We the People." "We the People" got together back a couple hundred years ago and said this is the deal we are going to make among ourselves and this is the power we are going to allow Government to have. I think the important word in the ninth amendment is "deny or disparage others"—referring to rights—"retained by the people." And as you point out, the distinction between how the great French Declaration of Rights or other great instruments proclaiming human rights and dignity, have always proclaimed them in terms of granting them to the people. In this case, the way in which, as you point out, our Constitution is written, the first amendment, The Congress shall make no law—a very different perspective from which we in the country have started. Second, you are referencing the 15th amendment, the Declaration of Independence, and the 9th amendment, and I expect possibly the 14th amendment as well, as a basis from which the courts have found over the last 200 years, and in particular over the last 50 years, an intellectually consistent and rational basis for being consistent with the Constitution, but nonetheless expanding individual rights in the sense that they recognize their existence and their guarantee of constitutional protection. So it does answer the question for me, but I would like to move from there, if I may now, having established that, to where the Constitution has to be read by Justices in light of its broadest and most fundamental commitments, commitments to liberty, commitments to individual dignity, equality of opportunity. In my view, the Framers were wise when they drafted the Constitution with such broad language. I think—and there is ample historical evidence to indicate—that they understood that at the time that the document they were drafting for this newborn Nation was one that required concepts which embodied more than specific guarantees that could change with time. And I believe they did it in broad concepts, and not specifics, precisely to avoid freezing the rights and protections that were afforded Americans. Now, their method permits the meaning of the document to progress as we progress, and as the world changes and as we better understand the full scope of our Nation's principles and ideals, our interpretation of the Constitution has changed. Now, in the Madison Lecture, though, you also noted constraints on the ability of the courts to expand individual rights. You recognized that that has been done, that there has constantly been an expansion, but that there was, in a sense, a self-imposed restraint. And you wrote that movement in this direction of expansion by the courts should be measured—this is your quote, "measured and restrained." You also wrote that courts generally should follow rather than lead changes taking place elsewhere in society. And you criticized the Court, as I read the lecture, for too often "stepping boldly in front of the political process." I believe that was the quote. But, Judge, in your work as an advocate in the 1970's, you spoke with a different voice. In the 1970's, you pressed for immediate ex- 121 tension of the fullest constitutional protection for women under the 14th amendment, and you said the Court should grant such protection notwithstanding what the rest of society, including the legislative branch, thought about the matter. For example, in one brief you wrote that "The quality of the Court's review is not determined by the presence or absence of stirrings in the legislative branch." I believe that was in the Frontiero brief. Now, how does that square with your statement in the Madison Lecture that courts generally should follow rather than lead society, and that courts should move in measured motions, in measured steps? Is my question clear?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. You are referring to the Frontiero (1973) brief?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Where you said, if I am not mistaken, 'The quality of the Court's review is not determined by the presence or absence of stirrings." Then in the Madison Lecture you said that the Court should be measured and restrained: It should follow rather than lead changes taking place elsewhere in society. Can you square those for me or point out their consistency to me?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is a good answer. Now we will go on to the next question. [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The Frontiero (1973) brief from which you read was, in fact, the third in a set of briefs urging the Supreme Court to recognize the equal stature of men and women before the law. As an advocate in those cases, I gave the Court initially two and later three choices for the rationale. One was that any classification based on gender should have the closest review.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS would distinctions made on race?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes. And then, at the opposite pole, I said, these sex-based classifications that riddle our statute books couldn't even pass the lowest level of review, the rational basis test. The first case in which those arguments were presented was a very simple one. It was the case of Sally Reed, whose young son—a teen-aged boy—died under tragic circumstances. Sally Reed applied to be administrator of her son's estate. The boy's father— the parents were separated at that point—also applied to be administrator. The State of Idaho at that time had a rule—a statute—for deciding such cases. The rule was: As between persons equally entitled to administer a decedent's estate, males must be preferred to females. It may be astonishing to some of the young people sitting behind you that laws like that were on the books in the States of the United States in the early 1970's, but they were. And there were many of them. There had never been in the history of the United States any instance in which any law that differentiated on the basis of sex had been declared unconstitutional up to Reed v. Reed (1971).
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS a matter of fact, some had been challenged and declared to be constitutional.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. A number of them. But without reciting that entire history, as an advocate I presented to the Court different ways that the Justices could reach the decision in Sally Reed's case, which was as clear on its facts as any case could be. 122 That was the position I took as an advocate. My expectation, to be candid, was that I would repeat that kind of argument maybe half a dozen times.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Until they got it right?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Until the Court would look at one classification after the other and say, yes, this is irrational. And then the Justices would come to the point where they would say none of these lines make any sense, so we might as well announce that drawing lines on the basis of gender is in almost all cases impermissible, and the presumption will be against, rather than for, their constitutionality. I saw my role in those days as an advocate in part and as a teacher in part, because one of the differences about gender discrimination and race discrimination is that race discrimination was immediately perceived as evil, as odious, as wrong, as intolerable. But the response I was getting from the judges before whom I appeared when I first talked about sex-based discrimination, then I began to use the word "gender"—I will explain that perhaps later— was: "What are you talking about? Women are treated ever so much better than men." I was talking to an audience of men who thought immediately that what I was saying was somehow critical about the way they treated their wives, the way they treated their daughters. Their notion was, far.from treating women in an odious, evil, discriminatory way, women were kept on a pedestal. Women were spared the messy, dirty real world; they were kept in clean, bright homes. I was trying to educate the judges that there was something wrong with the notion, "Sugar and spice and everything nice, that's what little girls are made of"—for that very notion was limiting the opportunities, the aspirations of our daughters. One doesn't learn that lesson in a day. Generally, change in our society is incremental, I think. Real change, enduring change, happens one step at a time. This litigation may be illustrative. In the second case you mentioned, Frontiero (1973), four Justices came on board for "sex as a suspect classification." I was told that by one of the lawyers at the ACLU women's rights project the day the decision was announced. It may even have been the executive director who came in and said, "You got four votes for sex as a suspect classification." I said, It is too soon. We are not going to get the fifth. The education process hadn't gone on long enough. Even though as an advocate I was advancing sex as a suspect classification as the end point I expected the Court to reach after it dealt with a series of real-life cases, cases like Sally Reed's case, I didn't expect it to happen in one fell swoop.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, I don't mean to cut you off, but this is an appropriate place to take the next step. I understand what your strategy was, and I understand now how you view and perceive permanent, important change to come about, how it does come about. And I think it would be hard to argue from a historical perspective that you are wrong. I don't mean to do that. I am trying to square, though, your—I understand your position as an advocate. Then you became an appellate court judge, and you gave a lecture this year called the Madison Lecture. Now, as an ap- 123 pellate court judge, you are required to follow Supreme Court precedent. You are not able to go off on your own. A subject I am going to come back to in my second round with you is your view of stare decisis, because we both know that in the Court you are about to go to, you are not bound by any previous Supreme Court ruling. As a judge on the circuit court, you are honor-bound to follow, to the best of your ability, what you believe to be the ruling consistent with what the Supreme Court has ruled as close as you can approximate it. Now, you have had three different roles: advocate, where you were educating—and I know you mean that literally, and that is exactly what has to be done. Believe it or not, some of us in the legislature think we have to do it that way as well, like the violence against women legislation, which I would like to talk to you about here as well from a constitutional perspective, where there are laws on the books now that are outrageous. They don't relate directly to equal protection considerations, but they start off with premises about women that are arcane and wrong. In my own State of Delaware, you can be convicted of first-degree rape if you rape a stranger, but if you rape someone with whom you have had an acquaintanceship, under the law you cannot be convicted. It can be as brutal a rape, as terrible a rape, but it is second-degree rape because you are "a social companion." Implicit in that is if you are a social companion somehow the woman is partially responsible for this. So there are still these outrageous laws on the books in other areas. But the point is you then moved from being an advocate to being a judge on the circuit court of appeals. And as a judge, you indicated what I said, that the Court should move in a measured, restrained way. You also noted, though, that the Court in Brown v. Board of Education was not timid; it was not fearful; it stepped out in front of society. And yet in another lecture you said that Brown "ended race segregation in our society, perhaps a generation before State legislators in our Southern States would have budged on the issue." Again, a seeming inconsistency. One, you say the Court should basically wait and not step out too far ahead of society. The other, you indicated that, in Brown you acknowledged, they did. They stepped out maybe an entire generation ahead of society. They stopped an odious practice in Brown v. Board of Education, and so what I would like to know is, as a Supreme Court Justice, what will guide you, if you, as you may know—I am not asking you this, but you may conclude that strict scrutiny is the measure that should be applied under the equal protection clause of the 14th amendment relative to women, as it is with regard to race. If you, as a Justice, concluded that is the proper test to be applied, notwithstanding the fact society may not have gotten that far, would it be appropriate? Not will you, but would it be appropriate for you, as a Justice, to move ahead of society, like the Justices in Brown did and moved ahead of society? What did you mean in the Madison lectures that the Court should not? Were you referring to the lower courts, the Supreme Court, all the courts? 124
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Mr. Chairman, first may I say that the Court has never rejected application of the suspect classification doctrine to sex. Most recently, when it came up, the Court said we don't have to reach that question, it is still open, because even if we employ a somewhat less exacting test—a heightened standard, but somewhat less exacting—the classification before us must fall. The case in which the Court made that statement involved exclusion of men from a nursing school the University of Mississippi maintained. The fine opinion by Justice O'Connor indicates the author's understanding that opening the doors of a nursing school—I would say the same thing for nursery school teaching—opening such doors to men can only improve things for women. When a job remains one that only women fill, it tends to be paid lower. When men take part, the pay tends to go up. But let me try to respond to your question about Brown (1954), about moving ahead of society and at what level. First, recall that Brown wasn't born in a day. Thurgood Marshall came to the Court showing that facilities or opportunities were not equal, in case after case, in notable 1948 and 1950 higher education cases, particularly: McLaurin (1950), Sweatt v. Painter (1950), Sipuel (1948), a line started even earlier, in 1938, in Gaines. He set the building blocks, until it became obvious that separate couldn't be equal. Something else had happened. One of the influences on Brown, I think, was a war we had just come through, in which people were exterminated on the basis of what other people called their race. And I don't think that apartheid in the United States could long outlive the Holocaust. From that perspective, the Court was not moving ahead of most of the people. There was resistance, of course, indeed massive resistance in some parts of the country. But Brown itself, even Brown didn't command an end to all racial segregation. The end came years later. Brown was decided in 1954. It wasn't until Loving v. Virginia in 1967 that the Court took the final step in the series by declaring a miscegenation law unconstitutional.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO what did you mean when you said, Judge, in the Madison lecture that it ended race discrimination in our country, perhaps a generation before State legislators in our southern States would have budged on the issue? Are you saying that the Nation itself may have been in sync with Brown and the Court not that far ahead of the Nation, and it was only that part of the country?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The massive resistance was concentrated in some parts of the country. That there was discrimination throughout the country is undoubtedly true. But there was a positive reaction in Congress, not immediately, but voting rights legislation started in the late fifties, and then we had the great civil rights legislation of 1964. The country was moving together.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It was a decade later. My time is up, Judge. You have been very instructive about how things have moved, but you still haven't—and I will come back to it—squared for me the issue of whether or not the Court can or should move ahead of society a decade, even admittedly in the Brown case, it was at least a decade ahead of society. The Congress did not, in fact, react in any meaningful way until 10 years later, and so it moved ahead. 125 One of the things that has been raised, the only question that I am aware of that has been raised, not about you personally, but about your judicial philosophy in the popular press and among those who follow this, is how does this distinguished jurist distinguish between what she thinks the Court is entitled to do under the Constitution and what she thinks it is wise for it to do. What is permitted is not always wise. So I am trying to get—and I will fish for it again when I come back—I am trying to get a clear distinction of whether or not you think, like in the case of Brown, where it clearly did step out ahead of where the Nation's legislators were, whether that was appropriate. If it was, what do you mean by "it should not get too far out ahead of society," when you talked about that in the Madison lectures? But I will give it another try. I think you not only make a great Justice, you are good enough to be confirmed as Secretary of State, because State Department people never answer the questions fully directly, either.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. May I leave you, Mr. Chairman
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If you would like to answer it more fully, I am anxious to
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I might offer two thoughts to consider between now and our next round. One of them was prompted by Senator Moseley-Braun, when she reminded us that the spirit of liberty must lie in the hearts of the women and men of this country. It would be one solution, wouldn't it, to appoint Platonic guardians who would rule wisely for all us. But then we wouldn't have a democracy, would we? We cherish living in a democracy, and we know that this Constitution did not create a tricameral system. Judges must be mindful of their place in our constitutional order; they must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I would have been happier, had the Court in Dred Scott decided to go ahead of society. I think America would maybe have had the same Civil War, but would have moved ahead more rapidly. Clearly, it would have been stepping out by 100 years ahead of where the Nation ultimately arrived. I am not asking you to accept that, but what I am trying to get at is, there is no doubt that a Court's opinion cannot be sustained without ultimately the support of the majority of the people. As someone said relative to the Pope during World War II, how many legions does he have? You all have no legions. Ultimately, your judgments, as the Supreme Court, will depend upon the willingness of the American people to accept them as appropriate. I have no doubt about that. I understand that, but there does come a time in the course of human events when the Court has in the past, and I suspect may have to in the future, be a generation ahead of where the Nation is. And I am wondering whether or not, as a matter of judging, if you conclude it should arrive at a decision, but look behind you and determine that the folks ain't with you, that that would restrain you from saying and enunciating what you believe the Constitution calls for in terms of enunciating a right or striking down a prohibi- 126 tion that the popular wisdom is not prepared to strike down. That is the essence of my question.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Mr. Chairman, I can assure you on one thing: I will never, as long as I am able to sit on any court, rule the way the home crowd wants out of concern about how it will play in the press if I rule the other way.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I wasn't implying playing the press. I know you would never do that. That is not even a question. My question is again—and I will drop it now—my question is whether or not, if you determined that it is appropriate in 1948, and you were on the Court, and you deemed separate but equal was inappropriate, or in 1938 that it was not constitutionally permissible under the 14th amendment, whether notwithstanding the fact you had reached that conclusion as a legal scholar and as a Justice bound by no previous Supreme Court ruling, that notwithstanding the fact that in 1938 America had not gone to war, did not understand genocide, did not have a notion of the value and the role that blacks would play in that war, that you would have been willing to say, if you believed it at that moment, we should strike down the law that the vast majority of Americans thinks is appropriate.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think I can give you a clear example. It was Chief Justice John Marshall, who ruled in a way that the State of Georgia found exceedingly displeasing. The case was Worcester v. Georgia in 1832. Marshall ruled the right way, even though he knew that the people of that State, especially the people in power in that state, would be down on his head for that ruling. But it was the right ruling and so he made it. May I also say that Dred Scott (1857) was the wrong decision for its time. There was no warrant for it at the time it was rendered. It should never have been decided the way it was. It was incorrect originally and it was incorrect ever after. I don't think it was a decision that the Court had to make at the time that it made it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I thank you very much, Judge. I have exceeded my time, and I thank you for your cooperation. I yield to the Senator from Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Judge, I thought your answers were pretty good. Because, as a matter of fact, Dred Scott was the first illustration of substantive due process, where the judges just decided they want it done that way. Justice Taney thought he was really saving the country through doing that, so he did that, which really was not ahead of society. Society, at least in the North, was ahead of them. And in the case of Plessy v. Ferguson, Mr. Justice Harlan, in 1896, had previously said that separate but equal was wrong. So, in all honesty, the Court was not ahead of society, but society really was ready for that type of a decision. Now, there are many that criticize Brown v. Board of Education for the rationale of the decision, but, frankly, all Brown v. Board of Education did was what Justice Harlan suggested, and that is treat equality as equality under the 14th amendment. So it isn't a question of whether you are ahead of society or not. It is a question of whether you are actually interpreting the laws in accordance with the original meaning which, of course, under the 14th amendment meant equal protection, equal rights, equality. 127 Let me just move on to something else. I would like to ask you whether you agree with the following statements about the role of a judge, including a Supreme Court Justice. The first statement is this: The judge's authority derives entirely from the fact that he or she is applying the law, not his or her personal values. Do you agree or disagree with that?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. No judge is appointed to apply his or her personal values, but a judge will apply the values that come from the Constitution, its history, its structure, the history of our country, the traditions of our people.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I agree. Then you agree with that basic statement then, you shouldn't be applying your own personal values?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I made a statement quoting Holmes to that effect in my opening remarks.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU did. What about this statement: The only legitimate way for a judge to go about defining the law is by attempting to discern what those who made the law intended.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think all people could agree with that. But as I tried to say in response to the chairman's question, trying to divine what the Framers intended, I must look at that matter two ways. One is what they might have intended immediately for their day, and the other is their larger expectation that the Constitution would govern, as Cardozo said, not for the passing hour, but for the expanding future. And I know no better illustration of that than to take the words of the great man who wrote the Declaration of Independence. Thomas Jefferson said: "Were our state a pure democracy, there would still be excluded from our deliberations women who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men." Nonetheless, I do believe that Thomas Jefferson, were he alive today, would say that women are equal citizens.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Or else he wouldn't be President. [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. But what was his understanding of "all men are created equal" for his day, for his time? It was that "the breasts of women were not made for political convulsion." So I see an immediate intent about how an ideal is going to be recognized at a given time and place, but also a larger aspiration as our society improves. I think the Framers were intending to create a more perfect union that would become ever more perfect over time.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think that is a good way of putting it. I think reasonable jurists can disagree about what the original meaning of a provision is or how to apply it under certain circumstances. I don't think there is any question about that, or as to how to apply it to a given set of facts. But so long as the judge's or Justice's starting point is the original meaning of the text, then it seems to me that judge is seeking to fulfill his or her constitutional duty. Let me ask about this statement: If a judge abandons the intention of the lawmakers as his or her guide, there is no law available to the judge and the judge begins to legislate a social agenda for the American people. That goes well beyond his or her legitimate power.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The judge has a law—whether it is a statute that Congress passed or our highest law, the Constitution—to construe, to interpret, and must try to be faithful to the provision. But 128 it is no secret that some of these provisions are not self-defining. Some of the laws that you write are not self-defining. There is nothing a judge would like better than to be able to look at a text and say this text is clear and certain, I do not have to go beyond it to comprehend its meaning. But often that is not the case, and then a judge must do more than just read the specific words. The judge will read on to see what else is in the law and read back to see what was there earlier. The judge will look at precedent, to see how the words in this provision or in similar provisions have been construed. The effort is always to relate to the intent of the lawgiver or the lawmaker, but sometimes that intent is obscure.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I like your statement that the judge has an obligation to be faithful to the provisions of the law, and you have explained that I think very well. Let me move to another subject that is very important to my folks out in Utah, and that is the second amendment. I would like to address the second amendment, the right to keep and bear arms, a right that many of us from Utah and across the country believe sometimes gets short shrift. For instance, for most of our country's history, the Bill of Rights limited only the powers of the Federal Government, not the States. But through the process of so-called selective incorporation, the Supreme Court in recent decades ruled that most of the provisions of the Bill of Rights apply via the 14th amendment against the States. Now, one right, however, that has not yet been held to be protected from infringement by the States, of course, is the second amendment right of law-abiding citizens to own firearms. Now, do you believe that there is a principled basis for applying almost all of the other provisions of the Bill of Rights against the States, but not the second amendment?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The second amendment shares with at least two other provisions of the Bill of Rights that status. They are significant provisions, but they have not been held to be incorporated. One is the grand jury presentment or indictment provision
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In amendment V.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG [continuing]. In article V. grand juries are not obligatory for the States. And another, also a right that many people think is very important, is the seventh amendment; the right to trial by jury in a civil case, stated in the seventh amendment, has not been held applicable to the States. So the second amendment doesn't stand alone. Grand juries and civil juries fall in that same category. As you know, Senator, there is much debate about what the second amendment means. I think the last time the Supreme Court addressed the matter was in 1939, was it not, in the Miller case? So I am not prepared to expound on it beyond making the obvious point that the second amendment has been variously interpreted.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I think what I am saying is I would agree with Justice Black, that if we are going to have incorporation against the States of any portion of the Bill of Rights, all eight amendments conferring rights should apply against the States. I don't think judges should be picking and choosing which rights they prefer. 129 Now, in the two cases that you have mentioned, the amendments still apply, other than those features. But it is just one I wanted to raise with you, just for whatever purpose I could. Judge Ginsburg, I am concerned about a reverse discrimination case decided in the D.C. Circuit that you sought to overturn. Now, that is the case of Hammon v. Barry. That was in 1987. There the court ruled the District of Columbia Fire Department's racial hiring quotas violated title VII of the equal protection clause. In that particular case, according to Judge Starr's opinion, there was no evidence of any actual intentional discrimination in hiring by the D.C. Fire Department since the 1950's, in other words, no evidence of discrimination or intentional discrimination. In fact, long before the quota hiring policy began, the majority of the new hires by the department had been black. In Judge Mikva's opinion dissenting from the court's denial of rehearing en bane in the case, an opinion which you joined, Judge Mikva wrote: This case concerns one of the fundamental dilemmas our society faces, how to eliminate a 'manifest imbalance' that reflected underrepresentationof women and minorities in the workforce. Now, because you joined in this opinion here, I take it that you agree with Judge Mikva that a "manifest imbalance" in an employer's workforce is sufficient justification under title VII for either voluntary or court-ordered race and sex-based quotas and preferences under title VII, even if the imbalance is not traceable to any prior intentional discrimination. Would that be a fair statement?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Hatch, the Hammon (1987) case is not in the front of my mind. As you have pointed out, I wasn't on the panel that made the decision in that case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I won't hold you to it, because I don't expect you to remember all of these.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. This was a
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU have written some 700 opinions, as I recall, so I am not going to hold you to that.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think it is important, though, to understand the difference between being part of a full court and being a member of a three-judge panel, which I was not. I was not one of the decisionmakers in the Hammon case, I was simply a member of the court, and all of us voted whether to hear the case en bane. But I was not part of any decision in that case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, the problem with permitting a manifest imbalance, that is, a statistical disparity not traceable to any intentional discrimination, to justify quotas or other preferential euphemisms like numerical goals is that statistical disparities can and do often occur for many reasons other than discrimination, and it is unfair to penalize innocent persons and deny them opportunities through quotas or other preferences, simply because an employer's hiring statistics are not balanced, according to some notion of statistical proportionality. It is an important issue. It is probably one of the most important issues in the future for our country. And I don't expect you to tell me how you would rule, but let me just pose a hypothetical situation to you. 130 Suppose a small business in a majority city that was majority black had never hired a black person, even though that business in over a decade had hired more than 50 people. Further, suppose that a disappointed black job applicant filed a discrimination suit and that she or he was unable to provide any direct evidence of intentional discrimination by the employer. Would such statistics standing alone, in your view, justify an inference of racial discrimination by the employer? And would that employer, in your view, to avoid an expensive and protracted lawsuit that could cost hundreds of thousands of dollars, be justified in using quotas or other forms of racial preferences to eliminate the manifest imbalance, if that really is the law? And just one other question: Would a Federal court be justified in such a case, in ordering that employer to resort to quotas or other forms of racial preferences, to eliminate or reduce the manifest imbalance?
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Would you repeat the question again for me? [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think I have the gist of it, Senator Cohen. Senator Hatch, we have many employment discrimination cases in the court. They come to us with a very large record of facts developed in the trial court, and they come also with lengthy briefs on both sides. I study those records intensely, read the arguments, have my law clerks do additional research, come armed to the teeth to the oral arguments so I can ask testing questions. So I am always suspicious, on guard, when given a one, two, three series in a hypothetical. I know I have done it myself when I was a law teacher, and sometimes my students would answer to that kind of question: "Unprepared." But I can say this. I was thinking in relation to your question, about a particular case, one that, in fact, went to the Supreme Court. It was a Santa Clara (California) Highway Department case that involved an affirmative action program.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That was the Johnson (1987) case.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Right, Paul Johnson was the plaintiff and he complained that Diane Joyce had gotten a job he should have gotten, and it was a result of the affirmative action plan. That was a case that was much discussed. I will tell you a nonlegal reaction I had to it. The case involved a department that had 238 positions, and not one before Diane Joyce was ever held by a woman. After an initial screening, 12 people qualified for the job. That number was further reduced until there were 7 considered well qualified for the job. Then the final selection was made. On the point score, Paul Johnson came out slightly higher than Diane Joyce, but part of the composite score was determined by a subjective test, an interview, if I recall correctly, and they were scored on the basis of the interview. I thought back to the days when I was in law school. I did fine on the pen and paper tests. I had good grades. And then I had interviews. I didn't score as high as the men on the interviews. I was screened out on the basis of the interviews. So I wonder whether the kind of program that was involved in the Johnson (1987) case was no preference at all, but a safeguard, 131 a check against unconscious bias, bias that may even have been conscious way back in the fifties. In a department that has 238 positions and none of them are filled by women, perhaps the slight plus—one must always recognize that there is another interest at stake in the cases, Paul Johnson's—checks against the prospect that the employer was in fact engaged unconsciously in denying full and equal opportunity to women. These are very difficult cases and each one has to be studied in its own particular context. But in that case, at least, I related back to my own experience. Whenever a subjective test is involved, there is that concern. If you are a member of the group that has up until now been left out, you wonder whether the person conducting the interview finds you unfamiliar, finds himself slightly uncomfortable, thinking about you being part of a workplace that up until then has been, say, all-white or all-male. I did want to make one comment, if you will allow me, Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Surely.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. When you said that Brown (1954) wasn't ahead of the people, in at least one respect
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It was ahead of some of the people, there is no question about that.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes. When I think about one of my wonderful District of Columbia circuit colleagues, Judge Skelley Wright, who was a brave district judge in New Orleans in the 1960's, a judge who for 10 years tried to implement the Brown decision, when massive resistance was mounted against it. But he did what a good judge should do, he enforced the law.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Sure. The reason I brought up Dred Scott and that case is because there were segments, whole segments of our society who were way behind—or way ahead in the case of Dred Scott, almost all of the North was ahead. And many people in the South, they refused to fight on the part of the South. In the case of Brown v. Board of Education, there were many in both areas that were way ahead and who expected and really demanded the decision that came. Well, the reason I gave you the hypothetical example I did is because I have had a lot of experience with small business people who are suffering the stings of these employment discrimination cases. The average cost of defending those cases before our 1991 civil rights bill that we enacted here, which I voted for, the average cost of defending it, defense alone, just paying their attorneys to defend them is $80,000. That was before that statute, and I suspect that cost has gone up a little bit since then. But I give you that example I did, because I have great faith in you. I have known you since 1980, and I have watched what you have done, I have admired you, I have no doubt that you are a person of total equality and a person who deserves to be on the Supreme Court. But in response to the Judiciary Committee questionnaire, in the 13 years since you went on the bench in 1980, you have not had a single black law clerk or secretary or intern, out of 57 such employees that you have hired. Now, I find no fault with that, because 132 I know that there was no desire to discriminate, even though your court sits in the middle of a majority black city of Washington, DC. Now, some, if they took the broad language of Abner Mikva in that case, might call that a manifest imbalance. Now, I would not suggest for a moment that that imbalance resulted from any intentional discrimination on your part. The crucial point to keep in mind, however, is that when the concept of discrimination is divorced from intent and we rely on statistics alone, a small business man or woman with your record of employing minorities might find himself or herself spending hundreds of thousands of dollars to fend off discrimination suits, and that in fact is what is happening around this country right now. Such an employer might adopt quotas or other forms of preferences in order to avoid or avert such litigation under any number of Federal civil rights laws. And I am worried about it, because it is not fair to the employer and it is not fair to the persons denied opportunities, because of preferences. Naturally, I am concerned about preferences and I know you are and I know that you are a very good person. But I just want to point that out, because that happens every day all over this country, where there is no evidence of intent and, in fact, was no desire on the part of the employer to exclude anybody.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I appreciate that, Senator Hatch, but I do want to say that I have tried to
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I know you have.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. And I am going to try harder, and if you confirm me for this job, my attractiveness to black candidates is going to improve. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is wonderful. I like that. But let me just say you can see my point. These things are tough cases. They are difficult. There should be some evidence of intent. Now, in the case of Johnson v. City of Santa Clara, your point may be very well taken that the oral interview, if it had been explored in a little more depth, may have shown some intention to exclude women, and there is a tough case, there is no question about it. I just bring that up for whatever it is worth, because I would like the Justices to think about the real world, real people out there who really aren't intending to discriminate. And if you just use the statistical disparity to make final determinations, you can create an awful lot of bad law and an awful lot of expense to the small business community that may very well not be willing to discriminate. Let me just ask you this: You agree, I trust, that the first amendment right of free speech—frankly, I don't think I have enough time to go through this line of questions, so I think what I will do, Mr. Chairman—and you will be real happy with this—I will defer until the next round before I go into the next round of questions.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Does that mean you are giving your ZV2. minutes up to Senator Kennedy?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I will reserve whatever time I have. How is that?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Kennedy. 133
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. But if Senator Kennedy needs it, he can surely have it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. I would like to just review with you, Judge Ginsburg, if I might, what I think has been an extraordinary period of Supreme Court history, and that is the progress that has been made on gender discrimination, which your involvement, your position as an advocate, as an educator, as a spokesperson, I think, has really been absolutely remarkable. I think probably for our colleagues, maybe they have a full understanding and awareness in this committee, maybe they do in the Senate, but certainly I think it is something that it is important for the American people to know. I think you made some reference to it in response to the earlier questions by Chairman Biden. But virtually up until 1971, the courts upheld every kind of gender discrimination. I was here in 1964 when we passed title VII of the Civil Rights Act to try to move us toward eliminating discrimination on the basis of gender. And still we found up until 1971— and we will come back to that—every kind of gender discrimination, from outright prohibitions on the entry of women into many professions to more subtle gender classifications that did just as much harm by perpetuating stereotypes about women and their role in society. In 1873, the Supreme Court upheld a State law prohibiting women from entering the legal profession. In 1948, the Court upheld a State law prohibiting a woman from serving as a bartender unless her husband or father owned the bar. In 1961, the Court unanimously held that it was not a violation of equal protection or due process to limit jury service by women to only those women who volunteer for jury duty, while substantially all men were required to serve. Even after the 1964 act, even more outrageous policies discriminating against women existed in the private workplace. In Phillips v. Martin-Marietta, the company absolutely barred women with preschool-aged children from applying for work. Even a man with sole custody of and responsibility for young children could apply, but the lower courts did not perceive this policy as discriminating against women. The Supreme Court ultimately reversed the lower courts, and I note that you have written that during the argument of the case before the Supreme Court, members of the High Court made light of the notion that they themselves might have to hire lady lawyers as law clerks. I know that you encountered the same discrimination as a young law school graduate. So you had the perpetuation of gender discrimination in a long line of Supreme Court decisions. You had some action by the Congress. You still had rampant gender discrimination in the private sector. These kinds of barriers to equal opportunity only began to fall in the 1970's as a result of the litigation effort that you led. Your painstaking work led the Burger Court to take strides forward that would have been hard to imagine even a decade earlier. I was interested when you referred to this in our conversations prior to the confirmation hearing in our wonderful visit that we had in our Senate offices, where I inquired about your own back- 134 ground. I want to pick up on some of the themes that I found so moving in your excellent statement in the Rose Garden about your mother and your own past. I was just wondering what it was in your own experience that really led you to take this path, to devote so much of your career to breaking down the legal barriers to the advancement of the women in our society.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It came on me incrementally, one might say. There were many indignities one accepted as just part of the scenery, just the way it was. For example, when I was at Harvard Law School, I was on the Law Review and I was sent to check a periodical in Lamont Library in the old periodical room. When I got there, it was quite late at night, and I wanted to make sure I got home by midnight. My daughter, the professor, was then 14 months old—no, that was my second year, so she was a few months over 2 years old. And I wanted to look up the citation, report back, and return home. There was a man at the door, and he said, "You can't come in." Well, why can't I come in? "Because you're a female." "But the library at Harvard is open to women," I protested, "Widener is open to women." This one room in Lamont, however, remained a symbol of the way things were. It was closed to women. There was nothing I could do to open the door guarded by a university employee who said, "You can't enter that room." The Harvard Law Review had a banquet. I was allowed to invite my spouse, and I was also allowed to invite my father or fatherin-law. But I wanted to invite my wonderful mother-in-law, who has been, next to my husband, my biggest booster, the greatest supporter imaginable. But I couldn't invite her because the Law Review dinner was just for men. The couple of women who were on Law Review—there were two of us—were allowed to come, but not the wives of the men on the Review and no mothers, only fathers. Experiences like that and the trouble I had getting a job when I finished law school, all
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Maybe you would mention the difference between Cornell and Harvard in terms of where your dormitory was.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes. That was amusing. Cornell, in the days I was there, had a 4-to-l ratio. It had four men for every woman. The reason they gave for having that quota in the Arts and Science college—it was indeed a restrictive quota system—was that the girls had to live on campus, the boys could live in town. The men could find apartments and live in town, but the girls needed to be sheltered, to have curfews and check-ins. And there were only a certain number of dormitory spaces. Then I enroll in the Harvard Law School, and there is a fine complex of dormitories, but all the rooms are reserved for men. No places in Holmes Hall for the girls. The girls had to find their own places in town. So it was just the reverse. Harvard's scheme compared to Cornell's showed how irrational it all was.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU also had an incident involving an eating room at the faculty club. 135
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Oh, yes. That was many years later in 1971. I visited Harvard Law School to teach a course on women and the law. It was the first such course Harvard offered. The faculty club, the Harvard Faculty Club, up until that 1971 fall term, had the dining room and the ladies' dining room. If you were a lady, until that term, you didn't have a choice. You went to the ladies' dining room. I asked to be seated in the dining room and the hostess said to me, "Well, dear, you are allowed to dine in the Dining Room, but wouldn't you really feel more comfortable in the Ladies' Dining Room?"
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. What did you say, Judge?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I can tell you what I did. I had my meal in the dining room. The way the world was just a generation or two ago is something that, as I said before, today young people can hardly grasp. One of my favorite stories concerned a case, a men's rights case, an early title VII case called Diaz v. Pan American World Airways (1971). The plaintiff was a man who wanted to be a cabin attendant, but that particular airline hired only women. You may remember the days of "I'm Cheryl, fly me." The Diaz case was part of that era. I was having lunch with some law school colleagues at the U.N. dining room where we met to discuss a proposed commercial law treaty. And one of the men said to me, "I understand what you are doing, Ruth, and it is great you are all for equality, and we are, too. But some of this is getting beyond reason. You know about that case of a guy who wants to be a stewardess? Isn't that silly?" The waitress serving our table came to my aid. She said, "Pardon me, but I couldn't help overhearing your conversation. I just came back to the United States on Alitalia, and on that plane there was the most adorable steward." The men turned to me, and one said, Ruth, do women look at men that way? And I said, "You're darn right we do." [Laughter.]
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU asked for it, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. AS we were proceeding along, I think in our visit in the office you also reviewed, and I think the record has brought out your experiences after graduation, the difficulties you had, with one of the most extraordinary academic records, both at Columbia and Harvard and in getting employment, and then your visit and travels overseas, and then back and eventually on the Rutgers Law School faculty. Can you tell us just a little bit about when you started working, as I understand it, with the ACLU on gender discrimination cases while you were teaching there in the late 1960's? What was the first case you took to the Court, and can you tell us a little bit about it?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The first series of cases I handled were not big Federal cases. Many States had moved ahead of the Congress. The 1964 title VII legislation trailed a number of States that had already enacted State human rights laws, States that in some instances included sex along with race, national origin, and religion as a proscribed basis for discrimination. 136 I got into the sex equality advocacy business through two doors: one was opened by my students who, in the late 1960's and early 1970's, encouraged the faculty to offer a course in this area; the other was opened by complaints that began to trickle into the New Jersey affiliate of the ACLU. I will describe a typical one: A school teacher becomes pregnant, and is told she must leave work—in the third month or the fourth, or as the pregnancy begins to show. She is put on what was euphemistically called maternity leave, which meant no pay, no benefits, no health benefits. "We will call you back if we have a need for you." That was about the size of it. Many of the women in that situation were schoolteachers. Some were in other fields. I recall another typical case, one involving the Lipton Tea Co. The complainant's employer had a fine health plan. Her husband's employer didn't have an equally fine plan. So she wanted to sign up with her employer to get the more advantageous plan for herself, her spouse, and her children. And she was told, "Women can get health coverage under our plan only for themselves. We have family coverage only for male workers." That was another category of case.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. SO you had Reed v. Reed in 1971, which is the case that was referred to earlier, the Idaho case involving a law that required that males must be preferred to females in handling the decedent's estate. That was the first occasion on which, as I understand, the Court held a gender-based classification inconsistent with the equal protections of the laws. Frontiero (1973) has just been referenced earlier, and in that case, as I understand it, the wives were presumed to be dependent on the husbands, and you had to show—the husband had to prove he was dependent on the wife. Therefore, as I understand it, this was where Justice Brennan's opinion recognized this as an example of gender stereotyping. The law assumes that wives would be financially dependent on the spouses, but husbands would not. And he noted that traditionally such discrimination was rationalized by an attitude of romantic paternalism, which in practical effect put women not on a pedestal but in a cage. As was mentioned earlier, in the Frontiero case, Justice Brennan's opinion applied the strict scrutiny test. You mentioned earlier the different tests which are applied in terms of economic regulation, race, and gender discrimination. He supported or applied a strict scrutiny test, which gathered four votes in favor at that point. But it would still take additional cases before the Supreme Court would raise, as I understand, the level of scrutiny. The Weinberger v. Wiesenfeld, 1975, is a particularly moving case. I know that you remember it well, and I know that you have maintained an interest in the individuals involved. I wonder if you would just share with us briefly the history of cases involving gender discrimination.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, I think you will hear from Stephen Wiesenfeld later. I would like to go back even before Reed (1971) so that it can be understood what the state of precedent was like, what led Justice Brennan to say the pedestal has sometimes been a cage. 137 The case is Hoyt v. Florida; it yielded a 1961 decision from the liberal Warren Court. You recited it correctly. The question was whether women would be required to serve on juries just as men are required to serve, or whether, as Florida had it, women could serve if they wanted to, but would not summoned for jury duty. Women who wanted to serve would have to come to the clerk's office to sign up. Not surprisingly, very few did. This was the case. A woman, Gwendolyn Hoyt, had a philandering husband who had humiliated her to the breaking point regularly. We didn't use names like "battered women" in those days. We just said, "She does not have a happy marriage." One day, enraged by the humiliation to which she was exposed, Gwendolyn Hoyt turned to the corner of the room and spied her young son's baseball bat. It was a broken baseball bat. She took the bat and brought it down on her husband's head, ending both the fight and husband, and starting the prosecution for murder. Hoyt argued that having women on the jury—or at least in the pool from which the jury would be picked, improving the chances she would have women in that jury room—would yield better comprehension of her state of mind, her utter frustration, and might lead to her conviction of something less than murder. The Court in 1961 responded to her plea—she was indeed convicted of murder by the all-male jury. Hoyt complained that the jury pool was not drawn from a fair cross-section of the community because women were left out. The Court said Florida's scheme was pure favor to women. They had the best of both worlds. They could serve if they wanted to. They had only to sign up in the clerk's office. They didn't have to serve if they didn't want to, so what was the complaint about? Women were treated better than men. Apparently, little thought was given to Gwendolyn Hoyt and the murder charge affirmed in her case. Now, let's proceed from 1961 to—I think the Wiesenfeld case began in 1973.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. It ended in 1975, the citation I have.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. A young man, Stephen Weisenfeld, had a tragic experience. His wife Paula died in childbirth. She had had an entirely healthy pregnancy, and he was told that he had a healthy baby boy but his wife had died. He determined that day to be a caregiving parent to his child, Jason Weisenfeld. Stephen Weisenfeld went to the local Social Security office and asked about the benefits he thought a sole surviving parent could get. He was informed that the benefit he sought was called a mother's benefit, and that he didn't qualify. So as I recall, he wrote a letter to the editor of his local newspaper. The letter began, "I have heard a lot about women's lib. Let me tell you my story." He told about his wife having been a wage earner, having paid the same Social Security tax that a man would pay, about her death and how he didn't qualify as a caregiving parent because he was a male. He ended the letter with the line, "Tell that to Gloria Steinem." He was tired of hearing about "women's lib." His case was the perfect example of how gender-based discrimination hurts everyone. The discrimination started with his wife, who worked as a man did, who paid Social Security tax as any wage earner does, but 138 whose Government said, in effect, we don't protect your family the way we protect the family of a male wage earner. And then there was Stephen Wiesenfeld himself, who wanted to care for his child, but was informed there were no benefits for him to do that, because he was a father, not a mother. Also there was Jason, the son of Paula and Stephen, who would not have the opportunity to have the care of his sole surviving parent, for the sole reason that it was his mother, not his father, who had died. The case resulted in a unanimous judgment in Stephen Wiesenfeld's favor. Every Justice voted to strike down the genderbased classification. The majority said it discriminated against the woman as wage earner. Others said it discriminated against the man as parent. And one said it discriminated against the baby. That case, more than any other, I believe, shows the irrationality of gender-based classification.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And you stayed in touch with the family, as I understand, is that correct?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, and I am pleased to say that Jason, who I don't think was yet 3 at the time of the Supreme Court victory, is nowln his last year in college, and his father tells me he's going to apply to law school.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, these cases are very important and significant on the legal issues and certainly equally important in terms of the human implications, and, obviously, your role in this was absolutely essential. I want to just move along through these cases, starting in 1971 and continuing through 1975, and then finally the Craig v. Boren case, which held that gender-based distinctions by Government are invalid, unless shown to be "substantially related to an important government interest." So we have the striking down of genderbased discrimination and putting in place a heightened standard of review by the Supreme Court. That obviously has been an extraordinary achievement and accomplishment in striking down the barriers of discrimination in our society, and I think it is important for us to understand it. You have obviously had a wealth of experience with the gender discrimination, both firsthand experience and through cases you have handled, and I would like to just move into the questions about what this has meant to you in terms of sensitizing you to other issues of discrimination—how it affects your own thinking as a judge, but also your own sensitivity to other forms of discrimination suffered by many others in our society. I think you are very much aware of the continued kinds of discrimination, even gender discrimination and wage discrimination that exists in our society, and unequal remedies which are available for people, remedies which differ on the basis of gender. So those are matters that we are going to be addressing certainly in the Congress, but they do continue. On the issue of civil rights, Congress and the President took up the challenge in the 1960's with the landmark civil rights bills. In the earlier period of time in the 19th century, Congress passing powerful laws, and they were effectively gutted by the Supreme Court. Then m the first 60 years of this century leadership in fighting discrimination basically fell to the Supreme Court. Congress 139 and the President took up the challenges in the 1960's and important progress was made. Then we have seen action that was necessary in the Civil Rights Act of 1991, a bipartisan bill, to deal with the series of decisions by the Supreme Court in the 1980's that many of us believed have weakened the protections available to victims of employment discrimination. I had intended to go through a number of the items on the civil rights issues which I think are important, and we will have a chance to review those in a second round. Maybe others will get to those issues. In Shaw v. Library of Congress, you showed sensitivity on the issue of attorneys fees, and then the Supreme Court treated that issue differently, and in the 1991 Civil Rights Act Congress overruled that decision. Then there were other decisions such as Spann v. Colonial Village, on the Fair Housing Act, to challenge the use of all-white models in advertising for rental housing. You wrote an opinion holding that organizations dedicated to ensuring fair housing opportunity had standing to bring that suit, because they suffered real injury, when African-Americans were steered away from apartment complexes that used only white models in advertising. As someone who is a sponsor of that Fair Housing Act, along with others on this committee, I was struck by the appreciation that you showed in your opinion for the need for private enforcement actions against this kind in discrimination. Then in Wright v. Regan, you ruled that the parents of AfricanAmerican school children had standing to challenge the fact that the Internal Revenue Service had allowed private schools that banned blacks to have tax-exempt status. The Court overturned you on the issue of standing, but eventually on the substance of the issue, in the Bob Jones case, certainly it supported the basic and fundamental principle that the IRS could deny tax-exempt status. Perhaps in just the couple of minutes I have left—you take what time that you need, but I will not be able to inquire further of you—if you could go back perhaps to the experience that you had with regard to gender discrimination, I think some of these cases that I mentioned at least for me demonstrate a sensitivity on the issues of race discrimination. You also wrote an opinion in Walker v. Jones applying the civil rights laws to Members of Congress, which was a welcome decision as well. Perhaps you could tell us in your own words, in whatever way you care to, about how your experience on gender discrimination has sensitized you on the issues of discrimination generally, on the issues of civil rights, and other forms of discrimination which we face in our society. What may we expect of you?
Ruth Bader Ginsburg
Nominee
(D)
Judge GiNSBURG. Senator Kennedy, I am alert to discrimination. I grew up during World War II in a Jewish family. I have memories as a child, even before the war, of being in a car with my parents and passing a place in Senator Specter's State, a resort with a sign out in front that read: "No dogs or Jews allowed." Signs of that kind existed in this country during my childhood. One couldn't help but be sensitive to discrimination, living as a Jew in America at the time of World War II. 140 Then there was the tremendous debt the women's movement owed to the civil rights movement of the sixties, in the development of legal theories. There is also some crossover. You mentioned the case of Ida Phillips v. Martin-Marietta, the 1971 Supreme Court decision, the first title VII sex discrimination case to come before the Court. That case was brought by the NAACP, Inc. Fund, although Ida Phillips was a white woman. The employer said we won't hire or retain women with preschool-age children. Although Ida Phillips was white, the NAACP, Inc. Fund appreciated what a devastating effect a rule like that would have on black women who were seeking to gain or retain employment. People who have known discrimination are bound to be sympathetic to discrimination encountered by others, because they understand how it feels to be exposed to disadvantageous treatment for reasons that have nothing to do with one's ability, or the contributions one can make to society.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I thank you. My time is up, but I want to thank Judge Ginsburg for revealing not only the brilliance of her mind, but I think the quality of her soul and heart, as well. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, this would be an appropriate time to take a break, if you would like, or we can continue for one more Senator and then take a break. Do you have a preference?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Then we will have
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In other words, we need to take a break now or in 30 minutes.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Why don't we go another 30 minutes and then take a break, if that is satisfactory.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is fine. Mr. Chairman.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you very much. Thank you, Mr. Chairman. Judge Ginsburg, several educators in South Carolina have requested I propound four questions to you, and in preparing these questions or any others I may propound during the hearings, if you feel they are inappropriate to answer, will you speak out and say so. The first is, many parents feel that public school education is lacking. What are your views on the constitutionality of some form of voucher system, so that working and middle-class parents can receive more choice in selecting the best education available for their children?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Thurmond, aid to schools is a question that comes up again and again before the Supreme Court. This is the very kind of question that I ruled out.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Would you prefer not to answer?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Well, you feel free to express yourself on any of these. Next is, based upon your understanding of the U.S. Constitution, do communities, cities, counties, and States have sufficient flexibility to experiment with and provide for diverse educational environments aided by public funding and geared to the particular needs of individual students of their particular area of jurisdiction? 141
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Thurmond, that is the kind of questions that a judge cannot answer at-large. The judge will consider a specific program in a specific school situation, together with the legal arguments for or against that program, but it cannot be answered in the abstract. As you so well know, judges work from the particular case, not from the general proposition.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, some recent studies underscored the historical precedent in the United States and elsewhere to the effect that single-sex education may be best for many students. Do you care to express your views under the Constitution concerning single-sex education, or do you think single-sex education should be available for girls and boys, young women and young men, aided by public funding?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator, I can say only this: The Constitution requires that equal opportunity be given for boys and girls, equal opportunity for education. I will report on one class of cases in which I was involved. They were easy cases, because there was an exclusion, an imbalance in opportunity. I worked at Rutgers University for 9 years. The main college was all-male when I began working there. There was also a very fine school, Douglas, much smaller, for women. But the State had many more places for male students than it had for female students. That was wrong. The way it was eventually cured was fine. Rutgers opened its doors to female students, the women's college remained separate. I think it remains separate to this day. But the State can't say we are going to have separate education and we are going to have many more places for men than for women. Other cases in which I was involved concerned Princeton, a private university. Princeton had a wonderful program for sixth graders. That program took sixth graders from the community and gave them an enriched learning experience, an introduction to math and science. The program included followup instruction in the students' high school years. This program was designed for children who were disadvantage*!, children who did not go to private schools. They went to public schools and they lived in neighborhoods that weren't affluent. It was a wonderful program, but it was only for boys.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, do you believe it is desirable that single-sex education should be available on some basis for the working and middle-class parents, and not just available to those who can afford to send their children to exclusive private schools?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Thurmond, I have expressed my view that the Constitution requires that the State treat people, boys and girls, equally. The cases I have described to you all involved either separate and nonexistent for girls, or separate and not equal. That is as far as my experience goes.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Ginsburg, it is my firm belief that the responsibility of the Congress is to make the laws. The executive branch is to execute the laws, and the role of the judiciary is to interpret the laws. Clearly, there are times when the responsibilities of the three branches of government will overlap. However, this is in stark contrast to activities conducted by one branch which are the distinct prerogatives of another. It has been said that you agree with Harvard Law Prof. Lawrence Tribe, that 142 it is notion that the different branches of the Federal Government must be limited to the exercise of the powers specifically within their own sphere of authority. Another constitutional commentator, James Madison, in the 47th Federalist, has argued that the preservation of liberty requires that the three great departments should be separate and distinct. If you are in agreement with Professor Tribe over James Madison on this issue, when do you believe it is appropriate for the Federal courts, including the Supreme Court, to engage in what would traditionally be considered a legislative activity?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Professor Tribe has finally gotten his true billing compared to James Madison.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think James Madison had it absolutely right. He explained that ours is a system of separate branches of Government, but the very idea Professor Tribe expressed you will find in another of the Federalist papers; that is, each branch is given by the Constitution a little space in the other's territory. We see that in operation today. The judiciary is separate and independent, but I can't be a Federal judge unless you, the legislators, advise and consent. You make the laws, but the President can veto laws that you pass.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Of course, we can override him, you know.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, but only by a super-majority. So the Constitution has divided government, but it also has checks and balances, and it makes each branch a little dependent on the other.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Ginsburg, in a 1981 George Law Review article—oh, by the way, I am glad you agree with James Madison. I meant to say that. [Laughter.] In a 1981 Georgia Law Review article, I believe you stated that the need for judicial interventionist decisions would be reduced significantly if elected officials shouldered the full responsibility for activist decisionmaking. I understood this to be your response to the Court's difficulty on occasion determining congressional intent in legislative acts. If confirmed as Associate Justice, what criteria will you use and where will you place the boundaries of your own interpretation of congressional acts which you find ambiguous and lacking clarity?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Thurmond, as I have told Senator Hatch in our conversations, there is nothing that a judge would like better than to have a highly activist legislature passing the laws, making clear its positions on policy and on implementation. The tremendous difference between legislators who decide what policies should be, then write laws to implement those policies, and judges is that you design the plate and you put things on it. Judges never make business for themselves. Judges don't create cases. Cases come to court, brought by parties; and if it is a case of what James Madison called a judiciary nature, then the judges have no choice. They must decide it, no matter how much they would like to avoid decision. Judge Irving Goldberg of the fifth circuit described it—and I quoted him in that University of Georgia article—this way: He compared judges to firefighters. They don't light the fire, but they are obliged to put it out. Judges are reactive. They don't make the cases or controversies that come before them, but if they are proper 143 judicial cases, judges are obliged to decide them no matter how unpopular the decision may be to some group or another.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Ginsburg, my next question is directly related to this issue of judicial activism. As you may know, House and Senate conferees are meeting to determine the fate of President Clinton's tax proposal. There has been spirited discourse, publicly and within the Congress, on whether there is a need to raise the taxes of the American people. The power to tax is an awesome power. As elected officials with this power, we are directly accountable to the American people for our actions. For over 200 years, consent to taxation has come through the ballot box. This has been fundamental in our history for over 200 years. In fact, a resolution adopted by the Stamp Act Congress in 1765, protesting excise duties imposed by Great Britain on the Colonies, stated, and I quote, "It is inseparably essential to the freedom of a people that no taxes be imposed on them but with their own consent given personally by their representatives." Yet this fundamental principle was turned on its head in the Missouri v. Jenkins decision, with which I presume you are familiar, handed down by the Supreme Court in 1990. Essentially, the Jenkins decision grants the power to the Federal courts to order new taxes or tax increases to carry out a judicial remedy. It is my firm belief that the American people lack adequate protection when they are subject to taxation by unelected life-tenured Federal judges. It is worrisome enough to the American people that the majority party in the Congress is trying to raise their taxes, to which, I might add, I am opposed, without having to worry about the same treatment from the Federal courts. As James Madison stated in Federalist No. 48, "The legislative branch alone has access to the pockets of the people." I introduced legislation to alter the Jenkins decision to preclude the lower Federal courts from issuing any order or decree requiring the imposition of any new tax or to increase any existing tax or tax rates. I firmly believe that the Constitution explicitly reserves the power to tax to the legislative branch where representatives are accountable for unnecessary taxes. This matter has yet to be acted on by the Congress. My question is: Do you believe there is sound constitutional authority for the American people to be exposed to taxation unless it is imposed by proper legislative authority?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Thurmond, may I put the Jenkins case in its context, as I understand it, and preface my response with Madison's words about the Federal courts James Madison said that with the Bill of Rights, he anticipated that the Federal courts would consider themselves in a peculiar manner the guardians of the rights incorporated in the Bill of Rights. He expected the judges to be an impenetrable bulwark, naturally led to resist every encroachment upon rights stipulated for in the Constitution by the Declaration of Rights. One of those rights, after adoption of the 14th amendment, is the right to equal protection of the laws. What was involved in that case, as I understand, was desegregation in schools. Federal courts don't make those cases. Every judge I know who has been involved in one has found it distressing, stressful, not what that judge 144 would choose to do. And every effort is made in those cases to have the community decide for itself, to come up with a plan that will cure a violation of rights. Once a violation of rights, of constitutional rights, is proved, then it becomes the Court's responsibility to impose relief, to grant relief, to work out a remedy. Now, courts will work out a remedy themselves only as the very last resort, after trying in every way possible to have the people's elected representatives do the job that they should do. I can't talk to the specifics of this particular case, but I do know that no judge, no Federal judge, to my knowledge, ever invites this kind of case. When the case comes to court, the judges will do everything they can to have the remedy worked out among the people involved in the case. And only when nothing else works will the judge then step in and fulfill, as best as she or he can, the judge's constitutional responsibility.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. AS I mentioned earlier, my legislation would alter the Jenkins decision to preclude the Federal court from using taxation as part of a judicial remedy. This bill does not affect the subject matter jurisdiction of the courts, but limits their remedial discretion. Now we will move on to another subject. Judge Ginsburg, in Shaw v. Reno (1993), which was handed down by the Supreme Court last month, the Court remanded to the district court the appellant's claim under the equal protection clause which alleged that a North Carolina reapportionment plan was so irrational on its face that it could be understood only as an effort to segregate voters into separate districts on the basis of race and that the separation lacked sufficient justification. One vocal critic of this decision said that the Supreme Court has now created an entirely new constitutional right for white people. Judge Ginsburg, do you believe this to be an accurate assessment of the Shaw decision? And if confirmed, how will you approach challenges to reapportionment plans under the equal protection clause?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Thurmond, the Shaw (1993) case to which you referred was returned to a lower court. The chance that it will return again to a higher court is hardly remote. It is hardly remote for that very case. It is almost certain that other cases like it will come up. These are very taxing questions. I think the Supreme Court already has redistricting cases on its docket for next year, so this is the very kind of question it would be injudicious for me to address.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Thank you. Judge Ginsburg, as you may know, Congress has before it a proposed amendment to the Constitution which would mandate the Federal Government to achieve and maintain a balanced budget. I am a strong supporter of the balanced budget amendment. I have worked on this for over 20 years. Should the amendment become part of our Constitution, do you believe that individual taxpayers would have standing to bring suit in Federal court to force the Congress to adhere to its mandate?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. YOU have described a measure that you support and, therefore, hope and expect may someday pass. That being the 145 case, you are describing a future controversy that may very well come before the Court.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Well, you don't have to answer it, then, if you feel that you shouldn't.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Ginsburg, there are hundreds upon hundreds of inmates currently under death sentences across the country. Here in the Congress I have been advocating habeas corpus reform to bring about finality of judgment in capital cases. Please tell this committee your views on the validity of placing some reasonable limitations on post-trial appeals that allow inmates under death sentences to avoid execution for years after commission of their crimes. Some of these cases go on for many years. For example, one in my State went for 10 or 11 years; one I believe in the State of Utah, Senator Hatch's State, went for 16 years.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I know, Senator Thurmond, that there is in this area a great tension between two important principles. The one to which you have referred is finality. All things must come to an end, and that is important in the law. Controversies must be decided, and people must go on about their business. So finality is important. But fairness is also important and, unfortunately, we don't live in an ideal world where people get the best representation the first time they come to court.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Suppose they do have good representation?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. These concerns, finality and fairness, are in tension, and they must be balanced in the particular case. I should add that, unlike Federal judges in many other places, judges in the District of Columbia Circuit do not have experience with the kind of habeas petitions you have in mind. Congress, when it created the separate District of Columbia court system, established courts with judges appointed by the President, gave them a postconviction remedy that is identical to 2255 of title 28, the Federal postconviction remedy, and then indicated, you go from the District of Columbia courts to the Supreme Court, if the Supreme Court will take your case. There is no Federal habeas review when you get through with the District of Columbia courts. So we don't get the kind of habeas corpus business that the fourth circuit and the other regional circuits get. So I appreciate the tension between finality and fairness. I have not had the experience that some of my colleagues on the Federal bench have had with the habeas jurisdiction.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. It is my belief that the public loses respect for the courts when the case is tried and the sentence is given and it is 10 years later or 15 years later before the sentence takes effect. We have got to do something to bring finality to these matters. If you remember, Justice Rehnquist appointed a commission with Justice Powell to make recommendations on habeas corpus reform. The Congress has been considering the Powell report.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, I understand that Congress has and will continue to give consideration to the Powell report.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I welcome your statement and your committee questionnaire response that judges must avoid capitulating to 146 a result or any criticism. I especially welcome your approving reference to Prof. Gerald Gunther's discussion of Chief Justice Marshall's 1832 opinion in Worcester v. Georgia. As Professor Gunther explains, when John Marshall and his fellow Justices voted in that case, they generally believed that the decision might well mean the end of effective Court authority, but they also thought that it was legally right. And, unflinchingly, they did their duty. They decided the case on merits, even though the immediate prospects were anxiety-producing, even though the survival of the Court was truly at stake. If a decision is right on the merits, it should be handed down, despite fears about consequences. This approach, which you soundly praise, contrasts sharply with the approach taken by five Justices of the Supreme Court last year in the Casey decision. In the past, Chief Justice Marshall did what he believed was right regardless of the possible effect on the Court's public standing. By contrast, five Justices relied on concerns over the Court's perceived legitimacy in the public's eyes in deciding not to overrule the constitutional error made in Roe v. Wade. As Justice Scalia pointed out in dissent, instead of engaging in the hopeless task of predicting public perception, a job not for lawyers but for political campaign managers, the Justices should do what is legally right. I am pleased to see that you are with Chief Justice Marshall and Justice Scalia on this principle. Would you care to make any further comment?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. 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.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU are good, Judge. You are real good.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Ginsburg, in 1975, at a meeting of the ACLU board of directors that you attended, the board adopted a policy statement that declared the ACLU opposed limitations on the custody and visitation rights of parents where such limitations are based solely on the parent's sexual preference. However, that statement did not claim that such limitations are unconstitutional. My question for you is this: Putting aside your views on the wisdom of any such limitations, do you have any doubt that a State is free, if it wishes, under the Constitution to take into account a parent's sexual preference in awarding custody and visitation rights and to limit those rights solely because of that preference? Similarly, could a State, in your view, if it so desired, limit adoption rights to heterosexuals, or do you feel that that might come before the Supreme Court?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. From the announcements we have seen in the paper today, yes, the questions that you have outlined certainly could come up.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. I will not press you to answer any that you feel are inappropriate.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Thank you.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge Ginsburg, one very important area of the law is the question of whether courts exceed their authority by creating rights of action for private litigants under Federal statutes where Congress did not expressly provide such rights of action, and Justice Powell put it this way: 147 In Article III, Congress alone has the responsibility for determining the jurisdiction of the lower Federal courts. As the legislative branch, Congress should also determine when private parties are to be given causes of action under legislation it adopts. As countless statutes demonstrate, including titles of the Civil Rights Act of 1964, Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, Federal courts should not assume the legislative role of creating such a remedy, and thereby enlarge that jurisdiction. As a general matter, what do you think of Justice Powell's argument?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Congress should express itself plainly on the question of private rights of action. Judges would welcome clear expression by Congress with great enthusiasm. Judges do not lightly imply private rights of action. In some areas of the law, securities law, for example, where private rights of action have been understood by the courts to be the legislature's intention—and that is always what the Court is trying to divine—it appears that the legislature has been content with those implications. Congress has let those private rights stand now in some cases for even decades. Judges have said often enough in their opinions, we are going to try to find out, try to determine as best we can, whether Congress intended that there be a private right of action. We wish that Congress would speak precisely to this question, because, as you said, Senator, the existence of a private right of action is a question for Congress to decide.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Judge, I believe my time is up. Thank you for your presence here on this occasion. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. Judge you are obviously doing very well. Do you know how I know that? Three-quarters of the press has left. [Laughter.] The print media has left, not the important ones, but three-quarters of the press has left, which means that they assume you have been confirmed. We will, as I indicated, take a break now for 10 minutes, and when we return we will go at least through Senator Metzenbaum and possibly through Senator Simpson. We have a little conflict here. I said we would end by 6:30. If we get both, we are going to go until 7:15 or so. We are going to check with my colleagues to see what is the most appropriate. If you have a preference, you can let your staff know in the break and we will take that into consideration. We will now recess until quarter after. If we start sharp at quarter after, we can get a lot done. [A short recess was taken.] The CHAIRMAN. The hearing will come to order. Judge, I have conferred with my colleagues and your staff on what we will do. We will proceed now with the distinguished Senator from Ohio—and I will say this for the 15th time, what great regret I have that he is leaving at the end of this term, choosing not to run again—who will begin the questioning. Then I am going to have to leave here at 5 of 7, and the distinguished chairman of the Agriculture Committee and a member of this committee, Chairman Leahy, has agreed that he will preside until Senator Simpson, who will be here, has his round of questioning. 148 As you know by the Senate rules, we don't trust an operation where there is no Democrat present. That is a joke. We totally trust the distinguished Senator from Maine.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. It is just that I need the experience, that is what it is. That is what he is trying to say.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I just want to also explain why at 5 of 7 or 8 minutes of 7 I get up and walk out. It is not out of disrespect. So let me now turn it over to Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you very much, Mr. Chairman. I am happy to see you here, Judge Ginsburg. Before I begin my questions, I thought that it might be appropriate to make a brief response to Senator Thurmond's remarks about the need for finality in death penalty cases. This committee held a hearing on the death penalty with two witnesses who were sentenced to death, but later freed because they were innocent, totally innocent. They were close to losing their lives. One was an Alabama black man who had been in the penitentiary for 6 years. Another was a Texas white man who was in the penitentiary for 10 years. Just this month, a Maryland man was released after 9 years in the penitentiary. I understand Senator Thurmond's point of view, but, frankly, we have to be careful, because the finality of judgments in death sentences can mean death for innocent persons. That really does not relate specifically, Judge Ginsburg, but I did not want to leave the record open with the implication that everybody who has been found guilty and hasn't finished their rights of appeal should have been executed. Judge Ginsburg, I have always believed it is important that the men and women who serve on the Court have a good sense of the reality that litigants face and the practical implications of their decisions. I expect that your broad range of professional and personal experiences would give you an understanding of the world faced by the individuals who are before the Court. Having said that, I am frank to say that I am puzzled by your often repeated criticisms of the decision in Roe v. Wade, that the Court went too far and too fast. You stated the decision need only have invalidated the Texas abortion law in question. You have also stated that Roe curtailed a trend toward liberalization of State abortion statutes. I am frank to say that some, including this Senator, would question whether women really were making real progress towards obtaining reproductive freedom, when Roe was decided in 1973. Would you be willing to explain your basis for making those statements about Roe and the state of abortion law at the time of the Roe decision?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, Senator Metzenbaum, I will try. The statement you made about the law moving in a reform direction is taken directly from Justice Blackmun's decision in Roe (1973) itself. He explained that, until recently, the law in the States had been overwhelmingly like the Texas law, but that there had been a trend in the direction of reform. The trend had proceded to the extent that some one-third of the States, in a span of a very few years, had reformed their abortion laws from the point where only the life of the woman was protected. In relatively few years, one-third of the 149 States had moved from that position to a variety of positions. Most of the States followed the American Law Institute model, allowing abortion on grounds of rape, incest, and some other grounds. Four States had by then moved to permit abortion on the woman's request as advised by her doctor. So I took that statement not from any source other than the very opinion, which I surely do not criticize for making that point. I accept it just as it was made in Roe v. Wade.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Would you not have had some concern, or do you not have some concern that had the gradualism been the reality, that many more women would have been denied an abortion or would have been forced into an illegal abortion and possibly an unsafe abortion?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, we can't see what the past might have been like. I wrote an article that was engaging in "what if speculation. I expressed the view that if the Court had simply done what courts usually do, stuck to the very case before it and gone no further, then there might have been a change, gradual changes. We have seen it happen in this country so many times. We saw it with the law of marriage and divorce. In a span of some dozen years, we witnessed a shift from adultery as the sole ground for divorce to no-fault divorce in almost every State in the Union. Once the States begin to change, then it takes a while, but eventually most of them move in the direction of change. One can say this with certainty: There was a massive attack on Roe v. Wade; the Court's opinion became a clear target at which to aim. Two things happened. One side had a rallying cry, the other— a movement that had been very vigorous—relaxed to some extent. Pro-choice advocates didn't go home, but they were less vigorous than they might have been had it not appeared that the Court had taken care of the problem. So while one side seemed to relax its energy, the other side had a single target around which to rally. My view is that if Roe had been less sweeping, people would have accepted it more readily, would have expressed themselves in the political arena in an enduring way on this question. I recognize that this is a matter of speculation. It is my view of "what if. Other people hold a different view.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In the Roe case, the Supreme Court held that a woman's right to terminate her pregnancy was protected by the Constitution. The Court said that constitutional right was fundamental and deserved the highest standard of protection from government laws and regulations that interfere with the exercise of the right. States had to have a compelling State interest to regulate the right to choose. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court did not overrule Roe v. Wade. However, the case in Casey lowered the standard for protecting a woman's right to choose. The Court held that States may regulate the right to choose, as long as they do not create an undue burden on women. After the Casey decision, some have questioned whether the right to choose is still a fundamental constitutional right. In your view, does the Casey decision stand for the proposition that the right to choose is a fundamental constitutional right? 150
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The Court itself has said after Casey (1992>— I don't want to misrepresent the Supreme Court, so I will read its own words. This is the statement of a majority of the Supreme Court, including the dissenters in Casey: 'The right to abortion is one element of a more general right of privacy * * * or of Fourteenth Amendment liberty." That is the Court's most recent statement. It includes a citation to Roe v. Wade. The Court has once again said that abortion is part of the concept of privacy or liberty under the 14th amendment. What regulations will be permitted is certainly a matter likely to be before the Court. Answers depend, in part, Senator, on the kind of record presented to the Court. It would not be appropriate for me to go beyond the Court's recent reaffirmation that abortion is a woman's right guaranteed by the 14th amendment; it is part of the liberty guaranteed by the 14th amendment. Perhaps I can say one thing more. It concerns an adjustment we have seen moving from Roe to Casey. The Roe decision is a highly medically oriented decision, not just in the three-trimester division. Roe features, along with the right of the woman, the right of the doctor to freely exercise his profession. The woman appears together with her consulting physician, and that pairing comes up two or three times in the opinion, the woman, together with her consulting physician. The Casey decision, at least the opinion of three of the Justices in that case, makes it very clear that the woman is central to this. She is now standing alone. This is her right. It is not her right in combination with her consulting physician. The cases essentially pose the question: Who decides; is it the State or the individual? In Roe, the answer comes out: the individual, in consultation with her physician. We see in the physician something of a big brother figure next to the woman. The most recent decision, whatever else might be said about it, acknowledges that the woman decides.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I won't go further into the Roe v. Wade case, and let me change the subject on you a bit. For over 100 years, our fair competition laws have protected consumers against monopolies and cartels that fix high prices, boycott smaller competitors, or force consumers to buy unwanted merchandise, in order to get the products they really want. As one prominent antitrust scholar correctly stated, our antitrust laws are based on a distrust of power, a concern for consumers and a commitment to opportunity for entrepreneurs. In other words, their goal is to protect consumers and small competitors from unfair competition, although not all jurists share that view. Some believe that the only goal of the antitrust laws should be economic efficiency which favors the financial interests of big business over the best interests of smaller competitors and consumers. In the last two sessions, Supreme Court opinions have taken both a proconsumer and a probig business economic view of antitrust. In the 1992 decision in Kodak v. Image Technical Services, the Court adopted a decidedly proconsumer approach to the antitrust laws. The Court held that Kodak's business policies could be anticompetitive, based on the extra time and money they cost consumers. Those policies made it virtually impossible for Kodak's cus- 151 tomers to buy replacement parts and repair services for copying machines from smaller competitors. However, this term the Court seemed to change direction and it adopted probig business approach to antitrust law based on economic theory. In its decision in Brook Group v. Brown & Williamson Tobacco, the Court amazingly theorized that a small, but powerful group of tobacco companies could not fix prices and ruin a smaller competitor, despite the fact that the defendant companies believed that they could. The dissent written by Justice Stevens criticized the majority's reliance on economic theory to decide the case, stating that they had relied on supposition instead of facts. As a member of the District of Columbia Court of Appeals, you participated in about half a dozen antitrust cases. To be frank, those decisions have not given me a very clear idea of which view you take of the antitrust laws. On the one hand, your dissent in Michigan Citizens for an Independent Press v. Thornburgh impressed me greatly with your high regard for consumers and for fair competition. In that case, the Attorney General overrode the recommendation of his Antitrust Division and permitted the merger of two financially viable newspapers in Detroit. You were admirably the only judge who looked at the facts and questioned whether the Attorney General's decision would open the door to a self-serving competition quieting arrangement between local newspapers in Detroit and other markets. On the other hand, you joined the court's opinion in Rothery Storage & Van Company v. Atlas Van Lines. Now, that decision has been criticized by commentators for taking an economic view of the antitrust laws which favors big business over smaller competitors and consumers. Because the Supreme Court appears to be of two minds about the antitrust cases, I frankly believe the next Justice will have an important influence on the direction the Court takes. As I stated, your antitrust decisions don't give me a clear idea of how you will come out on those cases. Please share with us your views as to whether a defendant can excuse anticompetitive conduct that violates the antitrust laws on the basis of an economic theory of business efficiency.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Metzenbaum, I think your recitation of the purposes of the antitrust law—to protect consumers, to protect the independent decisionmaking of entrepreneurs—is entirely correct. I am pleased that you like my opinion in the Michigan Citizens (1989) case. It is a decision that I wrote. I think it gives the best picture of my views in this area. As for Rothery Storage (1986), that is an opinion I joined but did not write. It seemed a rather clear case of an arrangement involving a small firm in an industry that had many firms and no entry barriers, plus the particular arrangement was to the advantage of consumers. No one doubted that. There was no dissenting opinion in Rothery. Four judges considered that case, and all four of them came to the same conclusion. So I think your concern is not with the decision or the judgment reached, but with portions of the court's opinion. 75-974 0-94— 6 152 You know how we work in courts of appeals. Rothery was decided in the first instance by District Judge Oberdorfer. He wrote a good opinion. We could have rested on that opinion. But the case was fully briefed and argued in our court before a panel of three judges. We voted unanimously to affirm. The opinion was then assigned to one of the three of us. Such an opinion, when completed, is circulated to the panel and panel members respond. We all agreed with most of the opinion. The major difference centered largely on a footnote. I don't think that the judgment reached in Rothery is one that many would criticize. Facets of the opinion may have been open to criticism. When one of my colleagues is assigned the opinion, I will read the circulated opinion carefully. If anything stands out as genuinely troublesome, I will alert the writer of the opinion. Perhaps the footnote could have been revised or eliminated as a collegial accommodation. But the Rothery judgment itself seems to me noncontroversial. As I said, the case was not a difficult case.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me switch to still another subject. Thank you for your response. As Chair of the Senate Subcommittee on Labor, I have tried to be a strong advocate for America's workers. I reviewed your court of appeals opinions in labor law cases, and I would like to ask you about two of those decisions: Conair v. NLRB and St. Francis v. NLRB. In both cases, workers were trying to organize to improve their wages and working conditions. Federal law protects their right to do that. You know that. I know that. Most people in this country know that. But when they tried to organize, the employers responded by threatening to close the plant, by coercively interrogating and threatening employees, and by firing union sympathizers. It was no surprise that the employers' unlawful tactics worked. The employees were very intimidated, and the unions lost both elections. You agreed in these cases that the employers had engaged in "serious," outrageous, "massive and unrelenting antiunion conduct" that interfered with the workers' freedom to organize. Nevertheless, although the NLRB has broad discretion to grant effective remedies, you voted in both cases to reject the Board's order, requiring the employer to bargain with the union. In short, you agreed that the employers had violated the law in a pervasive fashion, but you voted to overturn the remedy that the NLRB thought was appropriate. I am not interested in going over the facts of either of these cases or even the legal basis for your decisions. I don't see any useful purpose in that. But in reading your opinions, I can't discern whether you can identify with the harsh practical realities of the workplace when antiunion employers intimidate their employees to prevent them from organizing. I can't tell from your decision whether you understand what it is to have your boss threaten your livelihood and your family's economic well-being, to watch your friends lose their jobs, to sit in the boss' office while he interrogates you about your union sympathies, all because you and your coworkers are trying to band together to improve your wages and working conditions. 153 Supreme Court Justices, as you and I both know, are far removed from these harsh realities. If they don't come to the job with a deep understanding of the problems of America's workers, they will never achieve that understanding. I wonder if you could shed some light on your insight into the problem of workers trying to organize in the face of an antagonistic employer and whether there is anything in your background that gives you some feeling of understanding of the challenge that the worker has.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Metzenbaum, I don't think one needs to delve into my psyche on that score. I think if you take a full and fair look at the body of decisions I have written in the labor law area, you will be well satisfied that I possess the empathy you have just expressed. I might mention the Fort Bragg (1989) case, among many. In St. Francis (1984), I did not say the Board lacked power to issue a bargaining order in that setting. Far from it. I said give us a reason. One of the things we must be careful about regarding administrative agencies is any tendency for them to abuse their authority. One of the easiest ways to be abusive is to decide turbulent questions without giving a reason. It seemed to me that on the facts presented in St. Francis, the Board had not justified imposing a bargaining order. St. Francis, unlike Conair (1983), was not a case of egregious conduct. Unfair labor practice, yes, but not the kind of pattern that was involved in Conair. And so I did not say that a bargaining order would be inappropriate in that situation. All I said was, Board, you haven't given us a reason why you ordered bargaining in this case and not in other similar cases. All I asked of the NLRB was this: Say why you ruled as you did. It seemed to me unsatisfactory to have an order out there without adequately supportive reasoning. Conair was a different case. Conair was the worst kind of conduct imaginable on the part of an employer. But I was dealing with a statute, the NLRA, that protects the rights of employees. And that was a situation where the employees themselves had never in any way indicated that they wanted a union.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Isn't that the case where 45 percent of the employees had signed cards?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. There was never at any point a showing of a card majority.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. That is correct.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. And what I said was this: The principle of majority rule is fundamental to the legislation, the NLRA. It seemed to me that if Congress wanted to give the Board the authority to issue a bargaining order, even when there was never proof that at any time a majority of the workers wanted a union, the majority rule principle would have to be abandoned. If Congress wants the Board to have that authority, Congress should say so. I thought it involved a basic policy decision that the legislature should make. Now, it has been many years, you know, since the Conair decision, and in all that time the legislation has remained unaltered. But 154
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Because the law already permits—the NLRB has the right to recognize, order an employer to recognize a union where less than a majority of employees have signed cards and have not voted in an election if the employer's conduct is of such a nature that it has been so intimidating and so harassing and so restrictive of the employee's rights. The NLRB has that right now.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. There was a very strong dissent in Conair to that effect, whether you needed to have a showing of a majority at any time. Strong arguments can be made either way, Senator. I am simply saying that there is written into that Act, the NLRA, the principle that underlies so much of our society, and that is the principle of majority rule. The NLRA says it is the employees' choice. There was another factor in Conair, as you know. Because of the way, unfortunately, the process moves, by the time that case came to our court there had been—by the time it got to the Board for decision, no less the court, by that time, there had been a total turnover of employees. So none of the people who were in that shop at the time the Board decided the case had been exposed to the employer's egregious practices. If the Board had succeeded in imposing a bargaining order at that point, the NLRB would have imposed the order on a whole new set of employees. So that was a factor, too.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I have long been an advocate for placing what Thomas Jefferson described as a wall of separation between church and state. I applaud Justice Hugo Black's statement in the 1947 case of Everson v. Board of Education that the first amendment has erected a wall between church and state that must be high and impregnable. As you know, in the 1971 case of Lemon v. Kurtzman, the Court devised a three-part test which applies strict scrutiny to any law that has a religious purpose. To pass muster, a law must not pertain specifically to religion, must not advance nor inhibit religion, and must not excessively entangle government with religion. It is a strict test, as I believe it should be. It has been used to strike down such things as State tax relief programs that benefited parochial schools. However, some of the Justices currently sitting on the Court are in favor of toppling this wall between church and state. This term, Justices Scalia and Thomas ridiculed the Lemon test. In their dissent in Lamb's Chapel v. Center Mauritius School District, the Justices compared it to "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried." Both Justices suggested that pencils should be "driven through the creature's heart" and that is should be buried "fully six feet under." In my opinion, if the Lemon test were to meet the fate Justices Scalia and Thomas have in mind, it could put the Government in the business of choosing which religious groups receive taxpayer dollars. It could even destroy the religious harmony on which our country prides itself. 155 I don't believe that you have written an opinion that speaks directly to this issue. At least we did not come across it. Would you care to give us your view of the Lemon test and whether you agree with Justice Black that the Court should keep a high and impregnable wall between church and state?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Metzenbaum, you are right that I don't have any cases in the establishment area except a couple of standing cases. I do have a few in the free-exercise area. This issue, as you know, will come before the Court in many cases in the future, as it has in the past. My approach or attitude about criticism, the kind that you read, is generally to ask: "What is the alternative?" It is easy to tear down, to deconstruct. It is not so easy to construct. Some of my law school and judicial colleagues don't appreciate that sufficiently. It is much easier to criticize than to come up with an alternative. So, as a general matter, I would never tear down unless I am sure I have a better building to replace what is being torn down.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you very much, Judge Ginsburg. My time has expired.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY [presiding]. Thank you, Senator Metzenbaum. The last questioning this evening will be Senator Simpson's. Senator Simpson.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, that was a ghoulish case that our colleague from Ohio reported on. I was fascinated by that language. Who did that? I will ask him, but I see he is preoccupied. It was certainly graphic.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. It was Justice Scalia.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. What was that ghoulish case you were quoting from there, Senator Metzenbaum, that ghoulish case about stakes in the hearts and the specters of the night and six feet into the hole?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. It is Lamb's Chapel v. Center Mauritius School District.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I think the question of the Senator from Wyoming was who was the judge writing the opinion.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I don't know who wrote the prevailing opinion, but the two who wrote the language that I read were Scalia and Thomas. You remember them.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I remember them. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I didn't want the record to be incomplete, Alan.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I wondered when he was going to insert that in the record.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I thought I had said it at the time.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I perhaps missed that. But, nevertheless, it is always the spirited thing to follow Senator Metzenbaum, and I have been doing that for 14 years. You can imagine the burden that I have to carry, because he usually lays all the traps and he knows I am going to jump right in them. And I often have, and probably will again. Nevertheless, upon his retirement—and he announced that—I went to the floor very swiftly, and I said as far as Senator Metzenbaum—and I spoke glowingly about him, and I said, "But I don't want this to sound like a eulogy, although there have been many times when I wished it was." [Laughter.] 156 And so we shall miss him and his incisive participation, but he has lots more, many more months to go to serve on this committee. I enjoy him very much.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Alan.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Many questions have been asked. It can get tedious. You are all great sports at this hour, and if we go a little further tonight, you will have less to do tomorrow. And I think you would appreciate that. But you are very patient and very adroit in your responses. Let me ask one. It came to me as I looked at a large bulk of material that our ranking member, Senator Hatch, provided us. That was a significant number of recusals. Where you recused yourself, it was quite a bulky stack. You have been recused from hearing cases more than 250 times, by count of someone on my staff, during your years on the circuit court, and that obviously is no problem and would not be a problem on the circuit court since another judge could take your place on the panel. But it seems that it could be a problem on the nine-member Supreme Court. Will it be a problem? What do you foresee there? And I realize that is totally nebulous. Assuming your confirmation, what—I sense you will be very careful about doing that whenever you feel any sense of the conflict. In looking at some of those recusals, they were very precise, very specific; in fact, backed up carefully with documentation, letters. It was impressive, and I am not even suggesting anything that would be awry. But what do you think could happen with regard to recusals?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The number that you recited, in fact, startled me. I was not aware that
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Over the years.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG [continuing]. That there was any such number. I did recite, in response to the questionnaire, what my recusal policy is.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. It is very clear and certainly very appropriate.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. And the specific instances, which were not too many, in which I determined to recuse myself sua sponte, those are, I think, just 11, 11 in 13 years.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Eleven?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes. There are automatic recusals in my court for every judge, and that is worked out in the clerk's office. Each judge has a recusal list of clients, of parties whose cases that judge will not sit on because of a financial interest—in my case, it is never because of stock ownership, because when I got this good job we sold all our securities. Some of the judges will list one company or another, and they won't sit on those cases because they or their spouse or a minor child owns securities. That is never a cause of a conflict for me. Rather, my recusals generally occur when a lawyer in my family has a client relationship with a party. But I would have to see what is the basis for that number.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I am sure that what you say is so, and in most cases the clerk would automatically recuse you from her list of the parties that you had left, and I have a hunch that your list was very complete.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think, Senator, now that you jog my memory, my very first year on the court, I may have had an unusual num- 157 ber of recusals in Federal Energy Regulatory Commission cases. I think so for this reason: My son was given at birth a share of El Paso Natural Gas, which, due to a stock split, became two shares. When I was appointed by President Carter, we sold all of our shares, but we couldn't find my son's share of El Paso Natural Gas. It got lost in transit. A Federal statute says, if you have a financial interest, if you, your spouse, or a minor child living in your household has a financial interest in a party, a financial interest "however small"—those are the words Congress put into the statute— you must recuse yourself. After turning over every paper we had, I finally found the El Paso share certificate, gave it to my spouse who was going to New York, and asked him to bring it to our bank and have the bank sell it. Well, he lost it en route. [Laughter.] Then we had to
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. It probably pleased the broker.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It took the better part of a year to get and sell a replacement certificate. It meant that for one entire term of the court, I was recused from all El Paso cases, not because of my husband's law practice, but simply because my son was given at birth one share then worth $10 of El Paso Natural Gas. That experience, and others like it, might lead Congress to rethink whether the statute really should say "financial interest, however small." There should perhaps be a de minimis principle installed.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. If the Senator from Wyoming would yield, I am advised by the staff that during Judge Ginsburg's tenure on the circuit court of appeals, she was automatically recused 108 times, plus the 11 that you did. There is some confusion in the numbers. I also tend to agree that we should probably have a different rule and put de minimis activities, because it gets a little crazy.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I think that is true and I concur. Obviously, some of those were the telephone companies, and I am sure your husband's firm. I am just leading it, and surely I was thinking of the broker waiting to do that transaction. You would be known as the greatest odd-lot trader of our time, one share of El Paso. [Laughter.] Do you think that would be any problem in your duties on the U.S. Supreme Court?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. NO, Senator, I don't think so. I don't think I have the highest recusal rate on my court. On automatic recusals, I probably come out, taking 13 years into account, somewhere in the middle, I would guess. The telephone company recusals didn't come in time to allow me to escape from the huge access charge case. I did sit on that. It was a complex case, with an opinion divided three ways among the panelists.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I thank you. Let me ask you a question about a case. In 1989, you were on a penal deciding DKT Memorial Fund v. Agency for International Development, AID. A foreign organization claimed that its speech abroad was unconstitutionally restricted by conditions the U.S. Government attached to providing financial assistance. And while you did not reach that issue, you expressed sympathy for the argument in that sense, and so do I. Senator Simon and I 158 had an amendment to overturn that. Senator Bingaman and I are involved in population control at international levels. So the next question then comes back to thoughts on whether foreigners abroad have the protection of the U.S. Constitution from U.S. governmental action. There I become triggered by activities in immigration and refugee activities. If you believe that the Constitution would apply at all to foreigners abroad, what are the limits to its protection? I think it is my personal thought that an extension of constitutional right abroad, again, other than this issue of abortion rights or family planning or what was attempted to have been done, it would certainly have a severe effect on U.S. immigration and refugee policy. Considerable immigration activities take place in our embassies, our refugee camps, at the U.S. border, across the U.S. border, all outside of U.S. territory. Are aliens detained at the U.S. border entitled to the full panoply of constitutional rights that citizens enjoy?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, the case law, as you know, has developed since that DKT (1987) decision. I think the Supreme Court has answered the question you raised. No, the Court said, the Constitution doesn't necessarily follow the flag abroad. As you correctly stated, that was a thought I expressed, but my decision did not rest on the notion that the foreign population planning group in question was entitled to U.S. constitutional rights. It was a population planning group in India. My dissent rested on the free speech rights of the U.S. organization.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. YOU have always been very interested and active in population planning and that type of thing, haven't you, in your general work, issues of—of course, we know so well your work in women's rights and your significant incremental approach, which worked and worked so well. But the issue of international population planning and that type of thing is something that is appropriate.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Our Government has long been involved in that area. The policy that was at issue in the DKT case has since been changed. It was the Mexico City policy, a policy withdrawn by President Clinton in the first week of this administration.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Very appropriately, I thought. It was a tough one for me to watch during the administration of my own party. As you say so clearly, you did not reach that issue, but you expressed concern and sympathy for the argument, and it is going to be a much more serious case as it comes up, as people pay more attention to refugee asylum and immigration issues. Many of them don't understand that overseas, when someone is seeking asylum, a member of the Embassy consular staff makes the decision as to whether they receive this precious status of refugee or not, with no appeal possible under any circumstances whatsoever, and that is it. And when they get here, we have a list of items of due process that are often more than a U.S. citizen receives, an interesting irony, part of the cause of the movement in the world today here. Enough of that. Under the ninth amendment, rights left unnamed in the Constitution are retained by the people. When considering that designation of the right retained by the people, how would you reason 159 the grant or denial of a new right not enumerated in the Constitution? You have touched on this. I frankly like the way you kind of prod Congress along. It is a very important aspect of what a court should do, in my mind. Even though I believe deeply in separation of powers, there comes a time when I think a court has to say why don't you people go back to work, instead of putting me through this grueling exercise, and do what you are supposed to do, and that is correct this or legislate it. That is my view. But to what extent would the position, the action or nonaction of the Congress be a factor in your reasoning?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Simpson, the primary guardian of the 9th and 10th amendments has really got to be the Congress itself. The national government is one of enumerated powers. To create a conflict, an arguable conflict with the 10th amendment, Congress would have to take action vis-a-vis the States. So I think these amendments, first about not restricting people's rights and then about the reserved rights of the States, these amendments are peculiarly directed to Congress. A question about the 10th amendment would never come to Court apart from some action Congress has taken. So I think these two amendments are instructions first and foremost to Congress itself. Congress is not to limit people's freedom and not to encroach upon the States. And it is only when Congress takes an action with regard to the States that the States consider intrusive, that a 10th amendment issue would come to the Court. So I think that these amendments are directed to the Congress. I think you suggested that in the way you put the question.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Justice Brennan, we used to visit about things. You can still do that I think in this separation of powers. He would often say I think it's time for you people to move. That is what he would say. And he was usually very right. I think that is a very important thing. We say it is a government of laws and not men and women, but I think it is more really a government of men and women, and not laws, and he was one who perceived that, that it was about persons. I think you perceive that, from all the readings I have looked at that you have done, the readings of your writings. I think that is a heartening prospect, if I could enjoy seeing an opinion come down which might be just one line and say how did this get here, why didn't you do this? Was it because you were politically in chains and restricted and politically correct, where you couldn't move? This issue cries out for your attention, so have a go at it before you bring it back here.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Simpson, I have ended a number of opinions with the lines, "We need guidance from Higher Authority."
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. YOU didn't mean us? [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I surely did, when we are dealing with statutes. We do have now a means of communication just starting. Brookings is aiding in this effort. There has been cooperation both on the judiciary side and on the part of Congress. Opinions of my circuit not infrequently identify statutes with gaps or obscure language. Very often, these are not political hot potatoes, but just something unforeseen, the particular case wasn't seen. We send those opinions, with no comment at all, to the Senate, and I think 160 the House, as well, for Congress to do what it will to clear up the laws. Other circuits are doing this, and perhaps we will succeed in reducing some of the uncertainty in the law, if when courts spot a need for revision, clarifying revision, Congress will then respond. That kind of cooperation is just beginning and I hope it will bear fruit.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I hope so, too, and I think those are good things, and perhaps seminars and perhaps discussions of court members. We ought to do that through the Brookings Institution, where legislators and Supreme Court Justices sat down and talked informally, and those are good things, I think very good things. Let me ask you another one, because it is certainly going to come up I think more and more, not just with television, violence, the arts. There has been considerable controversy in recent years over the use of Federal taxpayer money to fund art, which some find offensive. Some argue, of course, that the denial of funding of some of those art forms is equal to nothing more than censorship. Others argue that the art is sacrilegious or morally offensive and undeserving of public financial support. The first amendment prohibits the Government from restricting expression on the basis of its content, and the courts have not made public funding or the denial of it the equivalent yet of punishing expression, and the courts have not required the Government to fund all types of art expression, and the Government is free to favor particular types of expressions over others. What is the reasoning you might use in considering a case involving a constitutional right to Federal funding of the arts or something else that might be highly controversial of similar nature?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Simpson, the initial concern of the first amendment is with the Government as censor. I don't think the first amendment says that the Government can't choose Shakespeare over modern theater, David Mamet, for example, in deciding what programs it wants to support, say, for public performances. It can't shut down speech, but it can purchase according to its preference, within limits. So although the first amendment keeps the Government from squelching speech on the basis of its content, I don't think anyone has taken the first amendment or the equal protection principle to the length of saying Government must fund equally anything that anyone considers art. I think the Government as a consumer doesn't have to buy all art equally.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. It is my experience that the toughest part of the job from this side of the table is dealing with the extremists on both sides of every issue. That is what we get to deal with here, the locked-in of the world who are not going to change their opinion, the ones who can make their opinion in the shortest possible time with the most possible emotion and the least possible content. So we deal with that continually. Yet, those are the things that cause people great concern about their Government works, whether the courts work, and meanwhile the poor citizen who is in the middle, the thoughtful person, as I say, raising their children, going to work, coaching, teaching, in- 161 volving themselves in the community—they are sitting it out, and meanwhile the heavy hits and the shrieking come from both sides on both extremes, and I find that so often. Those things, then, when they get that hot are often sidestepped by us and then they come to the judiciary. I think there will be more of that, and then they will accuse you of being an activist Court, which is the way that works. Yet, if we were more active in dealing with it before it came to the fueling of emotion and racism and guilt and anguish and all the rest of it, it might be a better filter for you. But that is rambling, as best described. In a speech on March 9 of this year, questioning the rationale of Roe—and it is interesting to me how I keep reading that apparently you didn't do this correctly for some with regard to Roe v. Wade. I am pro-choice, always have been, never varied, after the State of Wyoming had to change its law because the law overturned by Roe v. Wade was exactly the same as that on the books in the State of Wyoming. I was a member of the Wyoming Legislature at the time. We did it, and it was a tough and emotional debate greater than any I have been in in this arena. You remarked, "But without taking giant strides and thereby risking a backlash too forceful to contain, the Court, through constitutional adjudication, can reinforce or signal a green light for a social change." I would ask you. Judge Ginsburg, in your view, are the limits on the Court's ability to act as an engine for social change merely prudential and self-imposed according to the will of each Justice, or are there instead more fundamental, perhaps even constitutional, limits to the Court's authority?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator, if there is any message I would like the public to understand about courts, it is that courts don't make controversies; courts don't choose what they do. Courts are constrained, as you know, Federal courts, by article III. Article III tells Congress what it may give the Federal courts to do, and Congress is limited in this way, too. Congress can't put on our plate something that isn't included in one of the article III categories. So the courts are limited, first, by the case or controversy requirement. A case of a judiciary nature has to be a live controversy between adverse parties. Federal courts are limited in the subject matter of the cases they may hear, and there are a host of requirements that people must meet in order to have a justiciable case or controversy. Those stem from the Constitution first, then from the laws that Congress passes in conferring or withholding jurisdiction from the Federal courts, and then from precedent built up since the Nation was new. So no judge can decide what is appropriate for a court to do. All of what judges do is heavily constrained by the Constitution, the laws, the decisions, and the traditions that have been built up over 200 years.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, Judge Ginsburg, my time has expired, but I would just reflect that whatever you have been doing has worked pretty well, so keep doing it. That is my thought for today. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, you and your family have been extremely patient. I might say for myself this has been one of the most interesting and enlightening days I have spent in my 19 years here in 162 the Senate. I have enjoyed every moment of it, but it is time to let you and your family and your friends have some rest. We will stand in recess until 10 tomorrow morning. Thank you.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Thank you. [Whereupon, at 7:29 p.m., the committee was adjourned, to reconvene at 10 a.m., Wednesday, July 21, 1993.] The committee met, pursuant to notice, at 10:12 a.m., in room 216, Hart Senate Office Building, Hon. Joseph R. Biden, Jr. (chairman of the committee), presiding. Also present: Senators Kennedy, Metzenbaum, DeConcini, Leahy, Heflin, Simon, Kohl, Feinstein, Moseley-Braun, Hatch, Simpson, Grassley, Specter, Brown, Cohen, and Pressler.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order. Welcome back, Judge. Let me say to my colleagues on the committee that after having a brief discussion with the judge this morning and discussing how we will proceed, it is my hope and expectation that every Senator will have an opportunity to ask their first round before today is over. Unless someone on the committee objects, I would like to proceed in the following manner: Starting with the distinguished Senator from Arizona, we will ask three rounds of questions, three Senators; we will break, then come back, and do three more and break, and continue along that way. Although the judge is very accustomed, as a judge, to being seated and listening to argumentation for lengthy periods of time, I think it is a different circumstance when you are having to do the talking instead of the listening. And although she is prepared to sit as long as we want, I think we should not keep her in that seat without stretching her legs for more than an hour-and-a-half at a shot, if that is all right with you, Judge.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That is just fine. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO that is what we will do. With that, let me see. If we go—well, we will figure it out. I will confer with my colleague here as to when we will break for lunch. After the end of this round with Senator DeConcini, I will announce that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DeConcini. Senator DECONCINI. Mr. Chairman, thank you. Judge Ginsburg, thank you for the thoughtfulness that you have put forth in yesterday's hearing. Though I wasn't here for all of it, I did watch a lot of it, and I appreciate your effort to satisfy this committee. As you have noticed, the diversity here is widespread, -163 164 and it isn't easy to listen to all of us expound on judicial matters, particularly when you are an expert on it and we pretend to be. Some are, but I pretend to be. I do have some questions, however, that have, oh, I wouldn't say troubled me, but which deal with areas that I think are important enough to elicit a response from a nominee, and I have asked them of many nominees before. They deal with an area that you truly are an expert in, and that is the equal protection clause of the 14th amendment, and particularly as it relates to gender. Judge Ginsburg, throughout the 1980's I have asked Reagan and Bush Supreme Court nominees their views on gender discrimination. It was my belief that because of the integral role that the equal protection clause has performed in advancing women's equality, a Supreme Court nominee must be committed to those principles. I had concerns that the standards of review developed in the 1970's for gender discrimination analysis under the equal protection clause were at risk at times by nominees that were here. However, you, more than anyone else, any other individual I know, guided the Court into the direction of applying greater scrutiny to laws that discriminate on the basis of gender. Yesterday I was quite moved by your exchange with Senator Kennedy when you shared the details of the cases that you litigated and some of your personal experience. Having, myself, had two daughters and even a mother who was discriminated against a long time ago, almost 70 years—and she raised me reminding of that—it is on my mind. And your discussion demonstrated to me, and I think the public, how abstract principles of constitutional law affect everyday people in the most fundamental way, including the basic rights to sit on the jury, administer the estate of a deceased family member, or to claim survivor's benefits for a deceased spouse. Now, the heightened scrutiny test has made an enormous difference in combating laws that discriminate against women in our society. Earlier in this effort to change the law, you argued to the Court that gender-discriminatory statutes should receive the highest level of scrutiny. But then you revised your strategy, I believe, and steered the Court toward the middle-level scrutiny. And in a speech you gave in 1987, you praised the intermediate-scrutiny approach as a stable middle ground; that is, "an effective blend between responding to social change and actually driving it." So my question, Judge, to you is: Will an intermediate level of scrutiny for gender discrimination statutes always be satisfactory, or does the area need to be constantly developed further? TESTIMONY OF RUTH BADER GINSBURG
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator DeConcini, I don't recall the words that you read. It was always my view that distinctions on the basis of gender should be treated most skeptically because, historically, virtually every classification that, in fact, limited women's opportunities was regarded as one cast benignly in her favor. I tried yesterday to trace the difference between racial classifications, Jim Crow laws—which were not obscure in the message that one race was regarded as inferior to the other—and gender classifications that were always rationalized as favors to women. My 165 constant position was that these classifications must be rethought. Are they genuinely favorable, or are they indications of stereotypical thinking about the way women or men are. And that
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, Judge, to be a bit more specific, are you saying that you have to look at each case in determining whether or not the strict scrutiny or the intermediate scrutiny is applied? Is it on that basis or—first of all, am I correct that generally you believe that the intermediate scrutiny, as the Court has, I think, clearly established, is the right area for gender discrimination cases? You don't commit yourself to always be there? Is that what I think your position is, or can you expound on what your position is, please?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator DeConcini, as an advocate, I urged the highest level of scrutiny and
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. All the time?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. After it became clear as a strategic matter that there was not a fifth vote soon to declare sex a "suspect" category, I tried to establish a middle tier. In fact, I did that even earlier— the Frontiero (1973) Brief was the first time. Briefs I presented gave the Court two choices in Reed (1971), three in Frontiero and in Capt. Susan Struck's case. As you know, I was an advocate of the equal rights amendment. I still am.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. SO am I.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. SO I think that answers your question about the level of scrutiny that
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. But absent that amendment, Judge, then your position is that the strict scrutiny should be the beginning point on any gender issue brought before the Court?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I will try to answer your question this way. The last time the Supreme Court addressed this question, as I mentioned yesterday, was in the Mississippi University for Women (1982) case. The Court struck down a gender-based classification and said in a footnote that the question whether sex should be regarded as a suspect classification was one not necessary to decide that day; we don't have to go that far, the Court explained, to resolve the case at hand. It thus remains an open question before the Supreme Court.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And before you?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I can't, sitting where I am now
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I understand.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG [continuing]. Say anything more than what is in my briefs and my articles and my advocacy of the equal rights amendment, which is part of the record before you.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, thank you, Judge, and I will supply you the reference material I used here in your speech of 1987 where you praised the intermediate-scrutiny approach as a stable middle ground. And if you care to or can give any clarification— maybe that is taken out of context, and I have not read the entire remarks that you made, which might be unfair. But if you can give me a little more explanation, I would appreciate that. It doesn't have to be right now. 166
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I would be glad to respond regarding that particular piece. At the moment, I don't recognize the words as mine.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And I appreciate that. Yesterday, Judge Ginsburg, in reflecting to Senator Kennedy on a number of personal encounters that you had relating what brought you to where you began to press these issues in a legal forum, you had stories behind the reasons on how it affected you. One of the stories that I would like to know is the reason why you refer to this area as "gender discrimination" instead of "sex discrimination." Is there a history to that?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, there is. I hesitate every time I say "gender-based discrimination" because I have been strongly criticized by an academic colleague for whom I have the highest respect. He tells me, "That term belongs in the grammar books; the word for what you have in mind is 'sex' and why don't you use it?" And I will tell you why I don't use it. In the 1970's, when I was at Columbia and writing briefs, articles, and speeches about distinctions based on sex, I had a bright secretary. She said one day, "I have been typing this word, sex, sex, sex, over and over. Let me tell you, the audience you are addressing, the men you are addressing"—and they were all men in the appellate courts in those days—"the first association of that word is not what you are talking about. So I suggest that you use a grammar-book term. Use the word 'gender.' It will ward off distracting associations."
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. That secretary obviously was a woman.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes. And, Millicent, if you are somewhere watching this, I owe it all to you. [Laughter.]
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, it shows that good advice can come from staff people, as we all know working here. Judge, with regards to the issue of standard of review for gender discrimination laws, you once wrote that a society changed and evolved with respect to the role of men and women; so, too, did the force of the grandly general clause of the Constitution that provides for equal protection of the law. Now, the Constitution has open-ended and broad clauses such as the one we are discussing, the equal protection clause. And as you have stated, as society changes, so do the meaning of those clauses. Now, as Senator Feinstein noted in her opening statement yesterday, in the first 100 years of the equal protection clause of the 14th amendment, not a single gender-based challenge was sustained. And as you mentioned yesterday, even the Warren Court, which has been criticized for their activism, upheld restrictions on jury service for women. So as our society changes and evolves, so do our interpretations of these open-ended clauses. Indeed, you have also written that our 18th century Constitution is dependent on changes in societal practices, constitutional amendments, and judicial interpretation. Now, were the gender discrimination cases that you brought in the 1970's reflecting social changes, or were they leading social changes, from your viewpoint?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. From my viewpoint, they were reflecting social changes and putting the imprimatur of the law on the direction of change that was ongoing in society. Yesterday I described the Hoyt 167 (1961) case, Gwendolyn Hoyt's case, the case of the woman who, in an altercation with her husband, hit him over the head with a broken baseball bat, her son's broken baseball bat, and as a result, ended up being prosecuted and convicted of second-degree murder. When I mentioned that 1961 Supreme Court decision, I said there was no possibility of winning that case at the time it arose. No one would listen to the argument that this exemption from jury service wasn't pure favor to women. One of you mentioned yesterday—I think it was Senator Kennedy—the case of Goesaert v. Cleary (1948). That was about a mother and daughter who owned and operated a bar in the State of Michigan. The mother owned the bar. The mother and the daughter wanted to tend the bar that they themselves owned. But Michigan law, as was said yesterday, declared that a woman could not tend bar unless she was the wife or the daughter of a male barowner. That mother and daughter found that Michigan's law effectively put them out of business. The rationale for the law was that bartending wasn't safe; rather, it was a risky occupation. So women were being protected. They were being sheltered from working in such a setting, absent a father figure, or a husband, as the owner. In my law school constitutional law casebook, I remember the Goesaert case being treated simply as an illustration of the Supreme Court's retreat from the Lochner (1905) era, in which the Court regularly struck down economic and social legislation. Hardly a word was said about the mother and daughter, the people Michigan's law put out of business. That was 1948. The case was regarded as a typical example of the Court's retreat from a body of decisions that interfered with legislative judgments about economic and social legislation. So there really was no chance that any court in the land, and certainly not the Supreme Court, was going to move until there were pervasive changes in society. Change in the mid-1900's perhaps started during World War II, when women took jobs that had been considered, up until then, jobs only men could do. You remember Rosie the Riveter. There was a time after the war when women were told to go back home, don't compete with men for jobs. But then many things came together. One factor was inflation. The two-earner family became a pattern people accepted out of necessity, out of caring for—wanting to provide the best for—their children. Factors that coalesced included women's opportunity to control their reproductive capacity, the two-earner family pattern, longer life spans, the woman having a life at home and at work. A number of factors came together to change women's lives, to alter and expand what they were doing.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Societal changes you are referring to, primarily.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, let me pursue it just by asking you, Judge, when you are confirmed and you sit on the Supreme Court, when and how do you determine whether to lead or follow societal changes?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. That sounds like a question Mr. Chairman asked me yesterday. 168
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes, he was kind of asking that question.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I am glad you remember, Judge.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. And I would like to ask all of your indulgence to help me with this, because I must deal with the question in terms of past history. I can't predict in terms of cases that might come up.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I don't want you to do that, and I understand the sensitivity of that question. But I am interested in just how you approach it. I mean, it isn't some kind of a score I am keeping here, yes or no, that you fail or flunk.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I will give you the answers I attempted to give in the Madison lecture, a lecture I was afraid would put the audience to sleep, but has turned out to prompt a quite different response. [Laughter.] I gave in that lecture two examples. One was Baker v. Carr (1962). That was a State legislative reapportionment case. I quoted from a law professor who said the rationale for that decision and the ones that followed it, the one-person, one-vote line of decisions, was that when political avenues become dead-end streets judicial intervention in the politics of the people may be essential in order to have effective politics. Baker v. Carr came up from Tennessee, I believe. The comment concerned the composition of Tennessee's legislature at the time of Baker. At that time there was a history of many years of unsuccessful State court litigation and unsuccessful efforts to get the State legislature to reapportion itself. So that is one example. When is the political avenue a dead-end street? The other example, the historic example, of course, is race discrimination, which we talked about yesterday. It was not simply the schools. I referred to a talk that Judge Constance Baker Motley gave about Thurgood Marshall's leadership and litigation campaign. It was not simply separate education. She spoke of other cases, the restrictive covenant cases, most notably Shelley v. Kraemer (1948), interstate travel, the teacher salary cases, and most of all, I think, in terms of your question, the early voting cases. Remember the white primary cases. The last case in that line, Terry v. Adams, was decided in 1953, just one year before Brown. People were shut out of the political process. There was
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, Judge, let me interrupt you, if I may. Are you saying that if there is a dead end on the political process— maybe you don't want to commit yourself to this, but a Supreme Court judge may very well decide that is more of a time to lead than to follow, which has got to be more of a subjective decision as to when the political dead end has come? For instance, the equal right amendment, you are a strong advocate of that, and others are not. I happen to agree with you and have supported that, but it appears to be at a political dead end, which would lead me to conclude, if that is accurate—because the States are not going to ratify it, as we can see—that in that area of equal rights for women the Court should lead.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator DeConcini, first let me clarify what I meant by a dead-end street. I meant that blacks couldn't vote. We know what the history of the white primaries and literacy tests were. Women became galvanized in the 1970's. I think we are 169 going to see more and more political activity for advancement of women's stature. Some of the results of that activity are visible in this room. I don't think it has stopped. That doesn't mean that I am not an advocate of a statement in our fundamental instrument of government that equality of rights shall not be denied or abridged on account of sex. I am and I
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Well, Judge, I would classify you as a leader. And I am not going to put words in your mouth, but that is how I interpret what you have told us. My observation of what you have told me here is that, certainly in the area of gender discrimination, you lead. You don't follow. That is what you have done, though on occasion, on many occasions, you have concurred with other judges, but you certainly have been a leader there. That is really what I wanted to know, and that doesn't trouble me. I think the Court should lead, particularly in that area, and I was only trying to develop when you should follow, if there is any philosophy you have that there is a time to follow and a time to lead. It sounds to me like you are going to lead, and I think that is fine with me.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I won't comment on that. As I said, I have given you examples from the past.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. That is fine. You have answered it sufficiently for me, Judge, unless you want to make any other clarifying statement.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. If you are satisfied with my answer, I will be glad to move on.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I am. Thank you for pursuing it. Judge you have written extensively on the judicial role in our constitutional system, and as you have stated, throughout its history the Federal judiciary has been attacked repeatedly for exceeding the bounds of its authority. The term that is usually bandied about is "judicial activism." The committee questionnaire that we sent to you when you were nominated asked you to comment on the role relating to judicial activism, and you stated that the term judicial activism "seems to me much misperceived, a label too often pressed into service by critics of the Court results rather than the legitimacy of Court decisions." I tend to agree with that. In the past, conservatives have used it to criticize decisions by a liberal court, and now today's liberals are using it to criticize the conservative Court decisions. Nonetheless, going back to your quote, "The Court can and does exceed the bounds of its authority." Can you name any instances where you think the Court exceeded the bounds of its authority in the past?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Are you pointing to something in my answer to the questionnaire?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Yes. Well, in your answer to the questionnaire regarding judicial activism, you are quoted as saying, "seems to be much misperceived, a label too often pressed into service by critics of Court results rather than the legitimacy of Court decisions." And I am just interested in knowing if you have any specifics where you felt the Court in the past might have exceeded the bounds of its authority. Perhaps you don't.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The examples I gave were of the cases in which the courts have been most criticized. Frankly, I criticized in return 170 the legislatures and the executives who wouldn't take action when they should have. I spoke primarily of the school cases, the institutional cases, hospital and prison cases. These are cases, I observed, that courts do not like; judges feel extremely uncomfortable having to deal with them. But I gave the example, I think, of Judge Johnson in Alabama who was severely criticized for attempting to run the prisons in Alabama. He gave this account of it. He said, "The State's attorney stood up in my court and said that every prison in this State is in violation of the eighth amendment." At that point, what the law required him to do was clear. His own competence to do it, he was most doubtful about that, but he was bound by the law—by the Nation's highest law—to supply a remedy. He explained how he tried in every way to have that remedy come from the State officials, but in the end, when it didn't, the Court has to supply it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Judge, you don't have any cases that you cite where you think the Court has gone beyond its bounds of authority? You can't think of any or that you have mentioned in your lectures or your writings?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. As I said, I think the courts have gotten the most heat for that institutional litigation—for trying to run schools, for trying to run hospitals.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. But in your opinion, you don't cite any as going beyond what your quotient or ratio or judgment might be as the bounds of the Court's authority to do so. Justice Holmes, to whom you made reference in your Madison lecture, talks about judges who do and must legislate. Do you agree with that?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Then he said they must do so interstitially.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. That is right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think I gave an example. One of the Senators referred to it; perhaps it was Senator Specter yesterday. It was in an article I wrote about a series of cases in which the Court acted, in effect, as an interim legislature. The article concerned the appropriate remedy when someone is challenging a classification that affords benefits and says, "I want in." Sharron Frontiero's suit was such a case. So was Stephen Wiesenfeld's.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU think those were proper that the Court
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Either way, the Court is, in effect, legislating. Let me explain what I mean. The Frontiero (1973) case involved housing allowance and medical facilities for a spouse, benefits automatically available for the spouse of a male member of the military, but not available for the spouse of a female member unless she supplied effectively threequarters of the family's support, all of her own plus half of his. The Court said that the gender line was invalid. Now, if at that point the Court had said, "And until the legislature convenes again, there shall be no housing allowance, no medical benefits for anybody," that would have been far more destructive of the legislative will than letting in the women members who had been left out. 171 The same is true in Stephen Wiesenfeld's case. The benefit he sought was labeled a mother's benefit. He never would
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. SO you draw the line as to how far the Court goes beyond just deciding the issue as to the particular individual or the class that is before you and whether or not they extend themselves, as you just pointed out. Is it your position that that would have been going too far?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. No. My position is one should be honest about what the Court has to do in that situation. And either way, the Court can be said to be legislating. If the Court strikes down what the legislature has ordered, it is legislating by removing benefits Congress clearly wanted there to be. If the result in the Wiesenfeld (1975) case had been to strike down the mother's benefit until Congress acted, that is the last thing I think the sensible person would say Congress wanted to do. In the cases to which I referred, the Court has to make a decision. Its remedy was essentially legislative. The legislature has a next session and can change it. The legislature can say we don't want any parent to have benefits, we want every parent to have benefits, or we want to do something in between, for example, have an income test. But a court, on the spot, of necessity, must serve as a surrogate legislature. Courts can't say, we don't want to decide this case, we are going to leave it and do something else.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Judge. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator DeConcini. And thank you, Judge, for answering Senator DeConcini's question. I now understand much better. Senator Grassley is next.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. From Iowa. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I understand that part. I just wasn't sure whether Senator Simpson finished yesterday. But Senator Grassley from Iowa and the Judiciary Committee.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The State where you campaigned for President.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I might add the obvious: very unsuccessfully.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, good morning again, Judge Ginsburg.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Good morning, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I would like to continue some of the discussion of judicial philosophy with you this morning, with particular emphasis, a little later on, on things that interest me about the speech or debate clause in Congress and the application of laws of general applicability to the Congress, laws that we have exempted ourselves from. But before I ask my first question, I would like to make one observation from some of your statements yesterday. You spoke very eloquently about the obstacles that you encountered as a woman and particularly as a Jewish woman. You faced many hurdles in your very distinguished career, and you mentioned them very clearlyThese barriers that you were speaking about yesterday remind me of the compelling stories that Justice Clarence Thomas told us almost 2 years ago about facing segregation in the South, about drinking from a water fountain reserved only for blacks. 172 I think that it is very useful for us, and the country as a whole, to know how discrimination has influenced your life. There are similarities in life experiences but, of course, in the final analysis they may not influence you and Justice Thomas in quite the same way. Just an observation I wanted to make from yesterday. In the article that you wrote for the Rutgers Law Review—and I believe it was based on a speech that you gave—you expressed a view that the courts are not the solvers of all society's problems. Your view seems very consistent with the belief held by Justice John Marshall Harlan that the courts cannot solve all the ills of our society. He expressed that very eloquently in the 1964 reapportionment case. There Justice Harlan wrote, "The Constitution is not a panacea for every blot upon the public body, nor should this Court, ordained as a judicial body, be thought of as a haven for reform movements." Judges after all, are not elected, nor are they accountable to the people. Would you agree that judges need to exercise self-restraint and not endeavor to reform society? Isn't that a task better left to the political branches? Yesterday you made reference to Fifth Circuit Judge Irving Goldberg, who said that "Judicial fire fighters must respond to all cases." Those are his words. However, in responding, judges sometimes get carried away, it seems, by not only putting out the fire, but also trying to rebuild the whole house. So my question, as well as those that I have generally stated here, is: Shouldn't some of the fires and all of the rebuilding be left to the Congress?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Judge Irving Goldberg, when he made that comment, was talking about cases of a judiciary nature. The courts hear only such controversies as the Constitution and the laws provide that courts shall hear. Courts may not hear cases for which the Constitution does not provide, for which legislation does not provide. But when the laws do provide for controversies of a judiciary nature, the judges must decide them. They have no choice. That is what I sought to convey. Justice Harlan would agree. He is one of my heroes as a great Justice because he always told us his reasoning—he never hid it; it was always spelled out with great clarity. But he might have been accused of legislating because he is responsible for paving the way for the cases I mentioned earlier, in which the Court chose extension rather than invalidation to cure a constitutional infirmity in a law. It was Harlan's concurring opinion in a case called Welsh v. United States (1970) that prompted me to be bold enough to say to the Court, we are asking you to extend not invalidate this law. I don't know that anyone has ever called Harlan an activist for that, but this is the case I have in mind. I will try to state it as briefly as I can. Welsh was a case of a conscientious objector who was denied CO status. His conscientious objection to military service was based on a deeply held philosophical belief, but it wasn't tied to a religion. And the Congress, some thought, had pretty clearly limited CO status to people whose religion dictated the position they were taking. Some of the Justices read the language of Congress, which seemed to say the nontheistic observer isn't covered, nonetheless to be broad or vague enough to cover Mr. Welsh. Justice Harlan said 173 I can't do that. Congress was clear in saying this objection is available only to one who has a deeply held religious belief. That means Congress has left out this man, a nontheistic conscientious objector. That means I must grapple with the constitutional question, Is it a violation of the first amendment to exempt from military service only theistic objectors—to limit the exemption to one whose objection is tied to a belief in a Supreme Being? Harlan answered that question, Yes, He than said, having read the law as Congress wrote it, and having decided that that law is unconstitutional, I reach the next step. Should that be to say there is no more CO exemption until the legislature meets? No, Harlan reasoned. Instead, I must legislate a bit. I must include Mr. Welsh in the category of people who qualify for conscientious objector status, because Congress wanted there to be such an exemption. In Justice Harlan's judgment, Congress would have chosen to include Mr. Welsh in the catalog of exempt people, rather than to do away with the category CO, conscientious objectors, altogether.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. But you can agree, though, that sometimes the courts get carried away with rewriting the law, and isn't it still better to let Congress act? You have noted that in your Rutgers article, I believe. Am I misinterpreting
Ruth Bader Ginsburg
Nominee
(D)
Judge GiNSBURG. Congress makes the policy, it writes the laws. Judges believe, as everyone else does, that that is what legislators do in a democracy.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I suppose even judges get tired with the way that it sometimes takes political branches so long to act. It takes a long time, and we in this Congress certainly do not operate and legislate with lightning speed. I think your Rutgers article expressed an understanding of this. You just stated it. You were talking specifically there about civil rights, and you advocated pressing in the legislatures and the bureaucracy and in the arena of public education. You noted that this effort would "require more patience, planning, and persistence than campaigns aimed at sweeping victories in the court, but success may be more secure." Is this because the courts are conservative and you see them as inhospitable to reform? Or is it because policy made by the legislatures is often more widely supported within society and, therefore, more accepted and probably even more enduring?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Grassley, for a host of reasons. One, is courts are not equipped to get the kind of information that legislators can get. You are addressing a problem, for example, what kind of legislation you should have to prevent air pollution. You have tremendous resources you can use to investigate, to find out about the problems you are confronting. Legislatures can engage in the kind of fact-finding that courts are not set up to do. Of course, the fundamental policy decisions are entrusted to the legislative branch. The Court hears a controversy, one of a judiciary nature, generally between two parties.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Obviously, the Constitution requires us to write the law, but is it your feeling that the people are more apt to accept it than if a court would make that decision? 174
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. People elect Members of Congress to make laws for them, and if people don't like those laws, they can vote out the people who made them.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I believe that you have been very clear in establishing Congress as the fundamental law-making branch and that you don't want the courts to be assuming that role. I would like to contrast the view I think you express with an admittedly older law review article that you wrote, one based more on your experience as an advocate of gender equality. It comes from the 1979 Cleveland State Law Review article on repairing unconstitutional legislation. There you said the Court would have to serve as a short-term surrogate for the legislature in rewriting laws. I have some concern with such a viewpoint. Sometimes it can get into dangerous territory. Senator Thurmond yesterday pointed out some of that danger, like in Missouri v. Jenkins, when the Court ordered a tax increase. Can you tell me what you will do in the face of a statute you find inconsistent with the Constitution? Will you be more inclined—and I think the key words here are "more inclined"—to rewrite the law, or simply to strike it down and let the legislature do the rewriting?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The line of cases I examined in that Cleveland State Law Review article are the ones I have been talking about. Frontiero (1973), would Congress have wanted at that moment for the Court to remove housing allowances and medical and dental benefits for all dependents of servicemen? In the Wiesenfeld (1975) case, would Congress have wanted the courts to say there shall be no mothers' benefits until the legislature meets again? In the latest case in that line, Califano v. Westcott (1979), Congress passed a law that originally was an unemployed parent law— one parent that once had an attachment to the work force, but was out of work for a prolonged period. There was an unemployment benefit for such a person. It was discovered that in many cases the person signing up as the unemployed parent was the mother, not the father. Congress, apparently surprised, changed that law from an unemployed parent benefit to an unemployed father benefit. That law was challenged by a few unemployed mothers whose husbands had lost their attachment to the work force so long ago that they didn't qualify, but the mothers did. The plaintiffs in that case were effectively asking the Court, until the legislature meets again, to change the benefit back to one for an unemployed parent, rather than an unemployed father. / And the Supreme Court, in 1979, faced up to what Justice HarIjan had said much earlier in Welsh v. United States (1970). It said yes, we have a choice to make. Either way, whether we extend or we invalidate, we are temporarily legislating. The question for us is this: If Congress knew the line it drew was unconstitutional, would Congress want us to take away the benefit totally, or would Congress want us to extend it to the small class that had been left out. The Justices were trying to divine congressional intent. And the opinions in that case plainly show that members of the Court agree there is a choice. In the particular instance, the Westcott 175 case, the Court divided on whether extension or invalidation was the proper remedy. But Harlan's point was accepted by the entire Court. In Califano v. Westcott (1979), on the question of the existence of a choice, all of the Justices, in 1979, agreed. They said yes, we must choose; at this moment we are the surrogate legislature. I didn't mean to carry my point any further than that kind of case, one in which Congress legislates a benefit for a large class, the benefit is constitutionally infirm, because it leaves out a group of people similarly situated. What, then, is the remedy? I endeavored in that Cleveland article to talk about that discrete category of cases.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. YOU might consider that if the courts act too broadly, that legislatures might not fulfill their responsibilities. With the answer you just gave me, then, I think you are inclined to tell me that you are very willing to strike down a law and not very willing to rewrite it, if it is in conflict with the Constitution.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think all of the judges in those cases, in all of the courts, agreed that the one thing we couldn't do is rewrite the law in detail. Legislators might come up with something in between, or redo the law entirely. But a court in such cases has just the stark choice between extension or invalidation. Courts can't craft something finer as the legislature might do when it looks at the matter again.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I would like to move on to the subject of speech and debate. Your circuit, of course, hears many cases invoking the Constitution's speech or debate clause, which provides, as you know, that no Member of Congress can be questioned in any other place for any speech or debate in either House. The clause, of course, has long been a popular basis for Congress and individual members to avoid liability under a variety of criminal and civil laws. I have often debated with my colleagues the clause when I proposed amendments to apply employment laws to the Senate. Opponents of such coverage hide behind the speech or debate clause or claim that sexual harassment or racial discrimination in a congressional office is completely immunized. Congressional employees, unlike private sector workers, or even people employed by the Federal bureaucracy, have, for instance, no statutory right to unionize or earn a minimum wage or overtime pay. Because of my interest in this provision of article I, I was, of course, delighted to read your opinions narrowly construing the clause. I was particularly impressed with your opinion in Walker v. Jones. In that case, you rejected, as I read it, the House's argument that the clause immunized the House Services Subcommittee from a sex discrimination action. As you remember, that was the case where the subcommittee chairman declared that a House restaurant director's $45,000 a year salary was "ridiculous for a woman." Those are his words. Am I correct in concluding, based on your opinions, that you see no speech or debate clause problem with the application of civil rights or labor laws to the administrative aspects, as opposed to the legislative aspects of Congress' work and its employees?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Grassley, I think I will stay with Ella Walker's case, because the question you ask conceivably could come 176 up in a live case. I am delighted that you think well of our decision. I can tell you some people in the House of Representatives didn't. As you know, they regarded the speech or debate clause as sacred, and they said, well, of course our restaurant has a connection to legislating. How can you legislate if you are not well-fed? In Ella Walker's case, we said we don't have to deal with anything other than auxiliary services. In contrast, concerning members of a representative's staff working on legislation, one could make an argument for connection to the job of legislating that one could not make regarding auxiliary services. We thought we could draw a clear line between legislating and going to the gym, having a meal, going to a parking lot. I don't know if there are any attendants in the restrooms. But those areas we said were beyond the zone of legislating covered by the speech or debate clause. I think you know of the case of Davis v. Passman (1979). That case shows why I don't want to talk about administrative staff. That case involved a Member of Congress, a Representative who wrote a letter to a woman who had been his legislative assistant on a temporary basis. The letter praised the temporary assistant, but then said, you're so sweet and lovely and this job is so hard, it's really a job for a man. Davis charged Congressman Passman with sex discrimination, in violation of the equal protection component of the fifth amendment. One of Passman's defenses was the speech or debate clause. The Supreme Court, in deciding that the plaintiff in that case had stated a claim, left open the speech or debate question, because it hadn't been decided by the court below. When the case went back for a decision on speech or debate immunity for Passman's action, the case was settled. So that question was never decided by the Fifth Circuit or by the Supreme Court. That is why I would like to stay with my auxiliary service case, Ella Walker's case, and not go beyond that. I do think, and have expressed this in writing, that when Congress enacts a measure like title VII, it should set a good example by saying we are not simply going to ask the private sector to end discrimination, we are going to do it ourselves, we are going to hold ourselves to the same standards we expect of the public.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Let's follow on with what you just said there, because I think the speech or debate clause necessarily leads us to the issue of the doctrine of separation of powers. As I debate congressional coverage, I am repeatedly told by my colleagues that the separation of powers precludes some Federal agencies from investigating claims against a Member of Congress. The argument tends to be that it would be unconstitutional for an executive department, it would be an unconstitutional infringement, I suppose, on legislative power to have, for instance, an OSHA investigator check out this hearing room, to see whether or not there were any safety violations here, or to have the Civil Rights Division or EEOC pursue remedies for discrimination against congressional employees in a Federal trial court. First of all, do you see any separation of power problems with an agency that has expertise in an area insuring that Congress complies with laws? 177
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Again, Senator Grassley, I think I must avoid expressing anything concerning
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I can appreciate that. Let me just ask you if you could generally discuss how you might determine a separation of powers boundaries in the Constitution in such a case?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. May I offer an example from real life, something that happened to me. It explains why I am sensitive on this subject. There was a case before my court, titled Murray v. Buchanan (1983). It was a challenge not to the offices of the chaplains in the House and Senate. The case, in some accounts, has been inaccurately portrayed. There was no challenge to opening the sessions of the Senate and the House with prayer. There was never any challenge to having a chaplain. But there was in that case a challenge to using taxpayer money to fund the offices of the chaplains. The people who brought that suit were not very popular people— Murray was the name, the son of Madeline O'Hare Murray was the lead plaintiff. The only question before my court was whether the plaintiffs had standing to raise their objection in court, or whether it constituted a political question. The standing question seemed to me governed by a case clearly on point, Flast v. Cohen (1968). We asked the lawyers in the argument of that case—because there seemed to be a straight-forward legal question with no fact record to develop—if we should hold that there is standing, that the case is justiciable, can we get supplemental briefs and proceed to decide the merits? Both parties said, no, if you are going to hold that the case is justiciable, send it back to the district court because there are historical materials we would like to place in the record. So we were told by the parties that they did not want the court of appeals, at that stage, to decide the merits of the case. A panel on which I served—a divided panel, it was 2 to 1—held that the plaintiffs had standing to bring the case. There was a strong reaction. The House of Representatives adopted a resolution saying that the court had acted improperly, had encroached on the legislature's domain, had meddled in a matter covered by the House Rules. There was no nay vote in the House. Representative Conyers abstained; otherwise, the House was unanimous. That resolution was indeed a telling legislative reaction to a decision perceived as an improper judicial incursion on legislative turf. My court, the full court, vacated the three-judge panel decision, so it does not appear in the Federal Reporter. It was in the advance sheet, but the decision was vacated before the opinions could be put in the bound volume. You have the opinions before you, however, in the collection of my decisions. I recount that episode to indicate how sensitive these questions are, how
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, there wouldn't be any question about separation of powers protecting Members of Congress from applicability of criminal laws. What principled distinction can there be made with having employment laws or civil rights laws applied to Congress?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. YOU might ask the counsel to the Senate, who argued very effectively in a number of speech or debate clause 178 cases before us, for a brief on that subject. That office would be best qualified to address the issue for a Senate audience.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, I believe before long you will be addressing it sometime. Obviously that would keep you from responding to a specific question, but
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. If and when the question is presented, I would have the benefit of briefs on both sides. That is the difficulty that I confront in this milieu. I am accustomed—as a judge, it is the only way I can operate—to considering cases on a full record, with briefs and often oral arguments. I am not accustomed to making general statements apart from a concrete case for which I am fully prepared, taking into account the arguments parties present on both sides.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, it seemed to me like you did address the issue pretty thoroughly in your 1987 speech to the 92d Street Y in New York. You noted Congress exempts itself—and you referred to this just a little while ago—from title VII of the Civil Rights Act of 1964 and prohibition of race and sex discrimination. You said, drawing on John Locke and Madison's Federalist 10 that One might plausibly contend that Congress violates the spirit if not the letter of the constitutional doctrine of separation of powers when it exonerates itself from the imposition of the laws it obliges people outside the legislature to obey. Maybe you are even afraid to elaborate on those remarks.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I did say "spirit," but there is a much simpler way of stating the point. It is that one should practice what one preaches.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I am sorry. Would you repeat that?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I used the words "violates the spirit if not the letter." But there is a much simpler way, without referring to Locke, to express that idea: One should practice what one preaches with respect to equal employment.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. It seemed to me like something that you would be very concerned about on your present court or even on the Supreme Court, that the applicability of these laws to Congress is surely a check on legislative tyranny, and you have got to be concerned about legislative tyranny.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I think my time is up.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY [presiding]. Thank you, Senator. I want to acknowledge Senator Grassley's leadership in this area of public policy, on the applicability of statutes to the Congress. He has been interested in it for a long period of time. Quite frankly, I think we have made impressive progress in the Civil Rights Act of this last year and some of the recent statutes, but it is obviously an issue which we are grappling with. And I think your comments in the Walker case give at least some indication about your own views on this issue, one that I think is of enormous importance, obviously to the institution and I think to the American public generally.
Ruth Bader Ginsburg
Nominee
(D)
Senator Leahy. Senator LEAHY. Thank you, Mr. Chairman. Judge actually I want, a little later on, to get back to Murray v. Buchanan. I think that you were critical of Judge MacKinnon's 179 concurrence in the sense that he is citing the political question doctrine as a way out. And I will go into that a little bit further. I must say, though, sometimes when I approach these nomination hearings, the only enthusiasm that I can get up is because I wasn't able to find something more interesting like a root canal to go through. You have been entirely different. As I said last night at the close, I have enjoyed this very much because of your obvious love of the law and what I discern to be a very real interest in having the law do what it is supposed to do to protect the rights of individuals. There was some discussion yesterday of Lemon, and I have with past nominees gone into that question at some length. A lot of it was covered yesterday, but I just want to make sure I fully understand your answers. First off, do you feel the Supreme Court today has a clear test for deciding establishment clause cases?
Senator Chuck Grassley (IA)
Senator
(R)
Judge GlNSBURG. The Lemon v. Kurtzman (1971) test remains the test that the Court has.
Ruth Bader Ginsburg
Nominee
(D)
Senator LEAHY. IS that their test today, in your estimation?
Senator Chuck Grassley (IA)
Senator
(R)
Judge GlNSBURG. They have no other that the Court has ever announced. The test has been criticized by some of the Justices. Senator Metzenbaum read yesterday from a dissent with rather strong criticism. But the Supreme Court has not supplanted that test.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let's go back to yesterday because you had said that before a judge or Justice tears down a
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Or "deconstructs," I believe was your expression, deconstructs an established test, he or she should ask, Well, what is the alternative?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Right.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Today, what do you think the appropriate test for establishment clause cases should be?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator, I don't have a satisfactory alternative. This is a very difficult area. I can say only that I am open to arguments, to ideas, but at this moment, as I said yesterday, I have no solution to offer. I do know that it is easy to criticize. It is not so easy to offer an alternative.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Have you given thought to the alternative? Because you know you are going to be faced with these questions.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes. I haven't had much establishment clause business
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU are going to.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG [continuing]. Apart from the standing issues which came up in two cases, Murray v. Buchanan (1983) and Kurtz v. Baker (1987). The only case that I have had that touched at all on the establishment clause was the marijuana sacrament case, the Olsen (1989) case, where
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. This is the Ethiopian
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Right, the Zion Coptic Church case. So you are right that I will have to think in a harder, more focused way, as I always do when I have a case to decide.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, I certainly don't want you to have to lay out a test here in the abstract which might determine what your 180 vote or your test would be in a case you have yet to see that may well come before the Supreme Court. But because there has been so much dispute over Lemon and other cases that seem to branch off or go at it since then, you know and I know that this is an issue that will be before the Supreme Court, if not next year, then the year after. But I would like to get some idea of your feelings, and let me approach it this way: Under the first amendment's freedom of religion guarantee, people expect that if they send their children to public school, for example, that the establishment clause is going to prohibit the school from forcing religion on them. At the same time, they know they also have the free exercise clause, and we have a right to practice our religion, to have nonpublic religious schools. I think in my own experience my children have been both to private religious schools and to public schools, and there is no question in my mind that there are real differences in what is allowed or not allowed in the two. Do you see a tension between the establishment and the free exercise clause?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. There are cases that raise a tension. I am not prepared here to discuss those cases specifically, but you mentioned public schools, on the one hand, and private schools—that may be religious schools—on the other. Some crossovers do not create intractable problems, as the Supreme Court indicated fairly recently. For example, suppose a school facility is available after hours. Can the school board say we are not going to allow a religious group to use the facilities, because we don't want the State to be acknowledging religion in any way? The Supreme Court said if the facility is open on a first-come, first-served basis to anyone, the school's authorities can't exclude a group on the ground of religion. That position does not involve the State in establishing religion. Instead, it allows room for people freely to exercise their religion, as long as they are not being treated differently from any other group.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Does that mean that the free exercise clause and the establishment clause are equal, or is one subordinate to the other?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I prefer not to address a question like that; again, grand principles have to be applied in concrete cases. My job involves reasoning from the specific case and not
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me ask you this: Do you have a view whether the Supreme Court today has put one in a subordinate position to the other?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The two clauses are on the same line in the Constitution. I don't see that it is a question of subordinating one to the other. Both must be given effect. They are both
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But there are instances where both cannot be upheld.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, I would prefer to await a particular case and
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I understand. Just trying, Judge. Just trying. Let me move on a little bit, then, to free exercise. Let's take the Leahy case. Leahy v. District of Columbia, that is. In Leahy v. District, does your ruling mean that you are not going to let the first amendment right of the free exercise of religion be trampled on or 181 compromised just because there is legislation intended for public safety? Or what did you intend?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Leahy (1987), so it won't be a mystery to
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. It is a different Leahy. We ought to put that down. No relation to this Leahy.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. And perhaps I should explain what that case involved. Leahy applied for a driver's license in the District of Columbia. As District driver's licenseholders know, the license number here coincides with—it is the same as—one's Social Security number. Leahy's religious belief involved a rejection of identification with a Social Security number. If he were to use that number to identify himself, he would very substantially reduce his chances for an after-life. That was his religious belief. The District said this is our system. Every driver must have a driver's license, and these are our numbers. But something else came out in that case. Because this city has many people who don't have Social Security numbers, diplomats, it did have another system of numbers it used for embassies. And Leahy's religious belief could have been accommodated by the city; at least we sent it back to determine why the city could not respect his religious belief— we said that in the interest of free exercise there had to be a compelling reason to require Leahy to choose between his faith and his driver's license.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In fact, if I could quote from it, you said, that requiring a Social Security number was not "the least restrictive means of achieving the vital public safety objective at stake." I interpret that as saying you would hold public safety legislation to a strict standard of review if first amendment freedoms are implicated. Am I reading your opinion correctly?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, you are reading my opinion correctly. I was applying the test then effective, looking closely at such a restriction and requiring the State to come up with a compelling justification for not making an accommodation. The decision suggested in a footnote that perhaps there could be no compelling justification given this alternate system of license numbers the city had. But we remanded the case on that point. We said it wasn't enough to say every driver must have a driver's license and so either you get one that we provide or you don't drive.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Again, for anybody who tunes in late, so that everybody won't go off and try to check my bio to see who my relatives are, the Leahy referred to here is no relative, and obviously a different religion. [Laughter.] Judge, let me follow a little bit from that, and I think these are related. I would like to go to the Goldman v. Secretary of Defense case, in which we had an officer who had served, I believe, 14 or 15 years with distinction. He was threatened with a court-martial because he wore a yarmulke. You wanted to make the military explain why it was necessary to prohibit the wearing of the yarmulke, and I recall reading in your decision basically that he served with distinction all these years and nobody had questioned it, and all of a sudden it became an issue. But the majority of the 182 judges on the District of Columbia Circuit and the Supreme Court sided with the military. You wrote that the military showed callous indifference to the officer's orthodox Jewish religious faith by denying him the right to wear a yarmulke. How much accommodation should the military be required to make to protect the freedom of religion in the first amendment?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Leahy, may I say first that the majority of the District of Columbia Circuit did not uphold that classification. What we did was vote to deny a rehearing en bane. The Air Force regulation was upheld by a three-judge panel. As I recall, the writing judge was a visiting judge, and two of my colleagues voted with him to uphold the military uniform regulation.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I am concerned with what your views were. You had written that the military showed callous indifference to Goldman's religious beliefs. My basic question, though, without going into that case, is how much accommodation should the military be required to do to make the freedom of religion guarantees of the first amendment real guarantees, or how do you determine how much accommodation?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. There was a divided decision in the Supreme Court upholding my court's decision that a uniform regulation has to be applied uniformly. That was the decision of the majority of the Supreme Court. Our Constitution is the Constitution for all of us. It is the most fundamental law for this body and for all of the people. The end of Capt. Simcha Goldman's case was that this body, Congress, passed a law that said the Air Force can accommodate to the yarmulke. By that action, this body was implementing the free exercise clause in an entirely proper way, in my judgment.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me ask you this in a very general way: Whether it is the military or public safety departments, is it not a fact that they have to make accommodations to free speech? There may be special circumstances, because of the nature of the military or the nature of public safety, but at least they must start out assuming there has to be accommodation to the right of free speech or the right of religion?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, I think that is quite right. Our tradition has been one of many religions, one of tolerance and mutual respect.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What about right of association?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. In what context? We also have first amendment protection for that, and the right to petition the Government to redress our grievances.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Simply serving in the military or in a public safety organization does not remove your rights of association.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think that is quite correct. It doesn't mean that you have the same rights of association in the military that you would have in civilian life. There are undoubtedly restrictions, if you are a member of the military, that control you, but your constitutional rights don't end. They are fitted to the setting in which you are placed.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Obviously, if we follow this to its logical conclusion, we are going to get into what is going to be a major debate 183 before the courts within the next year, so I will stop at that point. I would note for the record, for those who might, that they should review your dissenting statement in Goldman and your citing of Judge Starr's dissenting opinion. To go back to your discussion with Senator Grassley and Senator Metzenbaum yesterday, you talked of the case of the professor who challenged the House and Senate on who was allowed to give prayers. You pretty well knew his first amendment claim would be denied, because of a prior Supreme Court case, but you wanted him at least to be heard. I believe the court of appeals dismissed his case, without hearing his constitutional arguments. Why did you think it was important for him to have that day in court?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I don't think it is a political judgment. I don't view the issue in terms whether I think it's important. Anyone who comes to court with a justiciable controversy has access to the court.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Politically sensitive or otherwise?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, judges in the first instance are not supposed to have any choice in that matter. If the case is of a judiciary nature, it is the judiciary's obligation to hear it, and it seemed to me that the professor qualified under the precedent that governed.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you think the political question doctrine should not be used? Should the question be whether a person has a right to be heard?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think the political question doctrine is much misunderstood. There are so many cases where what the Court is saying is, essentially, we look at this issue and it has been committed, textually committed, to another branch of the Government. You don't have to label that a political question. The Court has to examine the question to determine if the Constitution has given it over to another branch. What I said in my discussions and debates with my colleague Judge MacKinnon on this subject is, you are really taking a meritsfirst approach to these questions. You are deciding on the merits that the Government is right, and then you are saying that it's a political question or there is no standing. But really, you have taken more than a peek at the merits. You have resolved the merits against the plaintiff and then justified the result as a door-closing decision.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. If it is any consolation to you, I am one member of the more political branch of the Government who agrees with you on that. I think you are right and I think the Court should not shy away from those issues. Do you think there is a core political speech that is entitled to greater constitutional protection than other forms of speech?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That there is some kind of speech that is more protected than other kinds, I think there is no question about that. One kind of speech that is entirely outside the first amendment under current doctrine is obscenity. Commercial speech doesn't get quite the same protection as core political speech. Various expressions fall somewhere in between, like indecent, but not obscene speech. 75-97 4 0-94— 7 184 So if you are asking me the question, is there only one kind of speech and is all speech protected to the same extent, I think the case law is clear that, no, that isn't the case.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Senator Simpson and you touched a little bit on this yesterday, exploring whether Government can require recipients of Federal funds to express only those views that the Government finds acceptable. In an FEC case last year, you said that: "Decisionmakers in all three branches of Government should be alert to this reality: Taxing and spending decisions—even those that might appear to offer the individual a choice or to leave her no worse off than she would have been absent Government involvement—can seriously interfere with the exercise of constitutional freedoms." Let's take a few examples. Could the Government, for example, to further a policy in favor of promoting democratic participation, give out subsidies only to, say, Republican voters or only to Democratic voters?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, I am so glad that you brought that up, because that issue came up yesterday at a point when I was, to be frank, very tired. I gave a glib answer that I should have qualified, an answer inconsistent with what I said in the DKT (1989) case. I said yesterday that the Government can buy Shakespeare and not modern theater. That answer still stands, but what the Government cannot do is buy Republican speech and not Democratic speech, buy white speech and not black speech, and that
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let's take it a little bit further, then. I thought you might want to elaborate on it a little bit, and that is why I thought I would ask the question today. Could the Government, to further a policy in favor of protecting the public from sexually explicit material, for example, prohibit libraries that receive public funds from making Alice Walker's "The Color Purple," or J.D. Salinger's Catcher in the Rye available to patrons, but allow something else?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I must avoid giving an advisory opinion on any specific scenario, because, as clear as it may seem to you, that scenario might come before me. Some of these matters are in a state of flux now, for example, what falls within this category of indecent speech, to what extent can it be regulated. I can state quite comfortably what is, to the extent that I comprehended what the current law is, but I must avoid responding to hypothetical, because they may prove not to be so hypothetical.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let's go into that a little bit. Hypothetically, could you give funds to a college and say, because we want to maintain the family, we don't want you to put anything in your sociology course about divorce or illegitimacy, and so on and so forth? We could pick up a dozen kinds of examples that have great sounding names from whatever funding body is using taxpayers' money. Or could the Government, to protect the integrity of a new computer highway or the Internet, say, well, you can use the network, but you can't put this type of political speech on it. Those are tough questions and I can see them coming before the Court. But what general standard do you feel today, at least, the Government should apply to Government restrictions on speech tied to Federal funding? Is there a standard today? 185
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. We know that the most dangerous thing the Government can do is to try to censor speech on the basis of the viewpoint that is being expressed. We are uncomfortable with content regulation, generally, but particularly uncomfortable with attempts to certain statements of particular point of view. I might mention the military base case, the Spock (1976) case: The Court said it was all right for the military to say no political speech on the base. But suppose the question had been, we will allow Republican and Democratic Party speech, but not Labor Party speech. Now, that would have been a very troublesome thing for Government to be doing. It is one thing to ban the category, even though it is content-based regulation—no political speech. But if the Government were to say that we regard this speech as safe and that speech is unsafe, it would run up against the motivating force for the first amendment. Shortly after the Revolutionary War, there was a political cartoon that snowed a Tory being carted off, and the caption read: "Liberty of speech for those who speak the speech of Liberty." That is what we have to be on our guard against. The message of the first amendment is tolerance of speech, not the speech we agree with, but the speech we hate.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Some could say that is the underpinning of our whole democracy, to allow that kind of diversity, and no other country protects it as we do. Senator Metzenbaum had asked you whether the right to choose is a fundamental right. Is there a constitutional right to privacy?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life's course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make basic decisions about one's life's course.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And absent a very compelling reason, the Government cannot interfere with that right?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I realize we are painting in broad strokes here, but am I correctly reflecting your answer?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The Government must have a good reason, if it is going to intrude on one's privacy or autonomy. The fourth amendment expresses it well with respect to the privacy of one's home. The Government should respect the autonomy of the individual, unless there is reason tied to the community's health or safety. We live in communities and I must respect the health and wellbeing of others. So if I am not going to accord that respect on my own, the Government appropriately requires me to recognize that I live in a community with others and can't push my own decisionmaking to the point where it would intrude on the autonomy of others. 186
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, my time is up on this round, but I appreciate your answers, and I understand in some of them why you do not want to go further. I hope you understand, however, my reasons in asking them.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I do, Senator, and I thank you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you very much. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator. Judge, I apologize for being out of the room for part of the questioning. The new nominee for the FBI came by to meet me and to see how quickly we could schedule a hearing, and it was suggested by one of my colleagues to whom I introduced the Director—as a matter of fact, my colleague from Pennsylvania—that, when we finish with you on Friday, we just start with him and keep going right through the weekend. But I do apologize for having been absent for about half an hour. Let me suggest that in a moment we break until 10 after 12, break for 15 minutes, and then we will come back, with your permission, Judge, and Senator Specter will lead off the questioning, and then I believe Senator Heflin will follow. That will take us to about 1:15, at which time we will break for lunch until 2:30, and come back at 2:30 and continue with Senators Brown, Simon, Cohen, Kohl, Pressler, Feinstein, and Moseley-Braun, in a series of three.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. With a break in between?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. With a break in between, with a break every half hour or sooner, if you conclude that that would be preferable. As I said, we need to get up and stretch our legs. You are sitting there the whole time, and we appreciate it. We will reconvene at 10 minutes after 12, in 15 minutes. [A short recess was taken.] The CHAIRMAN. Welcome back, Judge. The floor is yours, Senator Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Mr. Chairman. Judge Ginsburg, I was very much impressed with your opening statement yesterday when you talked about your background leading to your values. I would like to take just a moment at the outset to identify our commonality of background and values, because I think we may or may not have some differences as to the appropriate role of the Court on enforcing those values. When you talked about discrimination, coming from a family background of one parent first generation and one the second generation, I understand that. Both of my parents were immigrants. When you talk about not having enough money to go to college, I can understand that. Neither of my parents went to high school. And when you comment about having been in Pennsylvania and having seen the sign, "No Jews or dogs," I reflected as a 17-yearold graduating from high school in Kansas and the State university not having any fraternities which admitted Jews, or graduating from law school and finding employment opportunities shut off. The fact was that Jews were excluded. There weren't any references to dogs, however. The concern about discrimination is one that I have always felt keenly on the issue of employing women. Shortly after you had 187 problems finding employment, I actively recruited women as assistant district attorneys in Philadelphia, starting with my election in 1965, and at one time had as many as 17 women, mostly as assistant district attorneys, and some as legal interns moving up to the rank of assistant D.A. We had a rather remarkable case in 1968 in which we had an indeterminate sentence for women, a day to life, as opposed to a determinate sentence for a man, say 5 to 10 for robbery. And it was challenged on constitutional grounds, and I was the district attorney of the county, and I refused to defend it. I said it was wrong, confessed error and the State attorney general had to come in to handle the case. When Henry Wade, the district attorney of Dallas, was sued in Roe v. Wade, I was sued by Ms. Ryan, Ryan v. District Attorney Arlen Specter. And I entered a statement, among others, that given all the serious crimes I had to prosecute, I wasn't going to get involved in the tough remedy of criminal sanctions on the abortion issue. When you talk about the role of the Court and judicial activism, the concern that I have is that if the Court is with you, it is great; but I think about the Dred Scott Supreme Court, which perpetuated slavery, and the Plessy v. Ferguson Supreme Court, which kept discrimination and segregation in effect for more than a halfcentury. I think of the Supreme Court in the 1930's, where the strong conflict existed between the Court and Congress when legislation was invalidated by a super-legislature Supreme Court on substantive due process grounds. I think about some who today challenge Marbury v. Madison, with the Supreme Court being the ultimate decider of cases, some saying very seriously that the President and the Congress have as much authority to interpret the Constitution as the Court does, and some saying that there ought not to be judicial review by the Federal courts unless you adhere to original intent because there is no legitimacy. Two of the Justices now sitting declined to answer questions on what I consider a rockbed principle about whether the Congress can take away the jurisdiction of the Supreme Court of the United States to decide constitutional issues. That is one of those matters for me on which there is no alternative answer, but two of the Justices have declined to respond when questions were asked of them. When I read your writings—and I make a sharp distinction between your writings and your work on the court as I read your opinions, but it is a concern I have, and not exclusively as to what you would decide as a Justice but what you as an advocate would argue to the Court to decide as being within the range of the Court's power. I am only going to pick one, perhaps two, and get to a very short question. When you commented in the Washington Law Quarterly to this effect: "A boldly dynamic interpretation, departing radically from the original understanding, is required to tie to the 14th amendment's equal protection clause, a command that Government treat men and women as individuals, equals in rights and responsibilities and opportunities." And then concluding, referring to the judi- 188 cial anxiety, the "uneasiness judges feel in the gray zone between interpretation and alteration of the Constitution." And after that unduly lengthy introduction, the narrow question I have for you is: Is it the role of the courts to upset decisions of legislators based on the jurist's own ideas about enlightened policy by bold, dynamic interpretation of the Constitution?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Specter, may I first join in what the chairman has said, what your colleagues have said. I am so pleased that you showed the care and concern to be here and that you are looking so well.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Ginsburg, you were an inspiration to me, hastened my recovery. There was a real motivation.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, there is no possibility we could hold a major hearing and Senator Specter not be here.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I could also say that I believe Marbury v. Madison (1803) was rightly decided. I said already yesterday that Dred Scott (1857) was wrong the day it was issued. There was no justification for it.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I am glad to hear you say that because one nominee would not affirm Marbury v. Madison, and one nominee in the discussion in my office said, when I started off talking about Marbury v. Madison, "You know, Senator, that case wasn't very well reasoned." And I said, "No, I didn't know that."
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Then I would also like to say that I prize the institution of judicial review for constitutionality. We have become a model for the world in that respect, and that is one of the reasons why I resist labels like "activism" and "restraint." I think it is a very precious institution that we have, and it should not be abused. After World War II, nations in other parts of the world that never had judicial review for constitutionality as part of their tradition adopted models compatible with their own systems but inspired by what our Supreme Court has been in our society. That role needs to be guarded; it should be exercised with great care. Now, the Washington University Law Quarterly article you mentioned was about the need for, or utility of an equal rights amendment. Why do we need an equal rights amendment when so many people have said the equal protection clause suffices? That was the topic of that article, was it not?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Ginsburg, it went beyond that, and it went to the point about having the Court extend what you categorized as a host of rights. It really was more in line with a statement you made at the second circuit judicial conference in 1976, where you put it this way: "The Supreme Court, by dynamic interpretation of the equal protection principle, could have done everything we asked today," and then, as an advocate, you had articulated a number of rights which you were looking for. So that I think it was beyond ratification of ERA. It was in your role as an advocate.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I don't know if my article in the Washington University Law Quarterly is here. I do recall the second circuit conference, and I do know that was a conference focused on the need for the utility of an equal rights amendment. I recall that that was a debate with Gloria Steinem and myself on one side and two gentlemen on the other side. 189 The Washington University Law Quarterly article, which somebody is going to try to get for me, was part of a series in the Washington University in St. Louis on the topic of equality. My specific topic was gender discrimination. I think the title indicated that the article dealt with the equal protection clause and the equal rights amendment as safeguards of the fair and equal treatment of women in our society.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Ginsburg, the title is "Sexual Equality Under the Fourteenth and Equal Rights Amendments."
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Right. That is
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. The 14th amendment as well.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Right, yes. The article contrasted having an Equal Rights Amendment as distinguished from the equal protection clause as a guarantee of the equal citizenship of women before the law.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Let us give you a copy of the article. We have an extra here.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes. This article is, as I said, an article in a symposium on the quest for equality. There was one on race, one on equal employment opportunity, one devoted to sexual equality under the 14th amendment and the Equal Rights Amendment. That article, like the Second Circuit Judicial Conference talk, focused on two things: the equal protection clause as a guarantee of the equal citizenship of women versus the Equal Rights Amendment. That was the entire context of the article, and what I said there was this: It is part of our history—a sad part of our history, Senator Specter, but undeniably part of our history—that the 14th amendment, that great amendment that changed so much in this Nation, was not intended by its framers immediately to change the status of women. And it is part of history that the leading feminists of the day—Susan B. Anthony, Elizabeth Cady Stanton, Lucretia Mott—campaigned against ratification of the 14th amendment because it allowed a system to persist in the United States where women couldn't vote, they couldn't hold office, if they married they couldn't hold property in their own name, they couldn't contract for themselves. That is what life was like for women in the middle of the 19th century. Times changed, and eventually, after nearly a century of struggle, women achieved the vote. They became full citizens. And many people thought that when women became full citizens, entitled to the vote, they had achieved equality. The vote should have qualified women as full and equal citizens with men, entitled to the same equal protection before the laws. The position was that, yes, it took bold and dynamic interpretation in view of what the framers of the 14th amendment intended. The framers of the 14th amendment meant no change, they intended no change at all in the status of women before the law. But in 1920, when women achieved the vote, they became full citizens, and you have to read the Constitution as a whole, changed, as Thurgood Marshall said, over the years by amendment and by judicial construction. So it was certainly a bold change from the middle of the 19th century until the 1970's when women's equal citizenship was recognized before the law. 190 I remain an advocate of the Equal Rights Amendment for this reason. I have a daughter and a granddaughter. I know what the history was. I would like the legislators of this country and of all the States to stand up and say we know what that history was in the 19th century; we want to make a clarion announcement that women and men are equal before the law, just as every modern human rights document in the world does, at least since 1970. I would like to see that statement made just that way in the U.S. Constitution. But that women are equal citizens and have been ever since the 19th amendment was passed, I think that is the case. And that is what the Washington University Law Quarterly article is about. That is what the second circuit debate was about. And I do not think my statements should be applied out of context. This was a precisely focused article about women's entitlement to equal citizenship before the law.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Ginsburg, I quite agree with you about the equality principle as a matter of values and have been a sponsor of the Equal Rights Amendment for the time that I have been in the Senate. But I refer to the bold interpretation or your language on the alteration of the Constitution as raising the issue of the appropriate role of the Court because my concern is where we are going to be in the future. We can see the 21st century on the horizon. We have had a Constitution which has worked marvelously for 200 years, and we have to maintain it. And I know you are dedicated to that principle. But a vital aspect of it is maintaining the appropriate role of Congress, and part of the language I read you was from your questionnaire where you limit later the Court's constitutional authority, but you start on the answer as to judicial activism by saying, "Beyond question, a judge has no authority to upset decisions of legislators or executive officials based upon the jurist's own ideas about enlightened policy or a personal moral view on what content an ambiguously phrased legal text should have." Now, I am concerned about legislating a bit, which is the language which you had used in your article in the Cleveland Marshall Law Review. And when you talk about the doctrine of extension, I wonder why it wouldn't be a sounder course—and you got into this extensively with Senator Grassley—to do what courts do in many situations; that is, stay execution of their judgment for 90 days or 180 days, giving the legislative body, the Congress, an opportunity to decide whether husbands of servicewomen ought to have the same benefits as wives of servicemen. I certainly would vote for that, but it would make me a great deal more comfortable so that you don't get involved in legislating a bit and a movement in the direction which may lead to an imbalance between the Court and the Congress.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Specter, that technique is necessary and, as you know very well, has been used in situations like the Marathon (1982) case, where the Supreme Court upset the arrangement Congress thought it could make with respect to bankruptcy judges. It was used also in a case upsetting a jury system because it discriminated on the basis of sex, by leaving out women. I think it was a case from Alabama, it was White v. Crook (1966). The three-judge Federal district court said we obviously are not 191 going to stop all trials. Instead, we are going to give the legislature until the next session to come up with a new plan for calling jurors so that women will not be excluded. In settings like that, where it takes more than just temporarily putting someone in, or temporarily putting someone out, your point is essential. I mentioned as the model for the decisions the Supreme Court made in this area Justice Harlan's opinion in Welsh. Justice Harlan didn't say, Mr. Welsh, you lose until Congress decides what it wants to do. I took the position I did as an advocate. It is a position nine Justices of the Supreme Court explicitly accepted in 1979. It is an area that is tightly cabined. It reaches only benefits conferred on one group, but denied to a similarly or identically situated other group. There is a denial of equal protection that the Court has unanimously decided must be dealt with one way or another. It is not like constructing a new system for bankruptcy judges. It is not like having the clerk gear up to call more people to serve on juries. I stand by the Supreme Court's unanimous decision on this point in Califano v. Westcott (1979), I ask you to read it, and I tell you that I go no less far and no further than the Court did in that case.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I know the Welsh case and I know Justice Harlan's concurring opinion, and I would only ask that, as a matter of deference among branches, that consideration be given to the stay concept, because you can leave the existing benefits in effect for a period of time, but I think we have explored it. Let me move on to the subject matter of achieving the expanded women's interest in ways other than through constitutional interpretation, such as through legislation which would look to the remedies and the establishment of the values that we agree on in terms of having the Congress make the judgments. I was interested in a comment made by Catherine MacKinnon and a group of women's rights activists which have been brought together by Jeffrey Rosen in an August issue of the New Republic, commenting that, in the 1980's, and then referring to your work in the seventies, "A new generation of feminist legal scholars have argued that the law should emphasize women's differences from men, rather than their similarities." And Catherine MacKinnon, in the Buffalo Law Review, in 1985, says, "You can be the same as men, and then you will be equal, or you can be different from men, and then you will be women." There is a line of contention that more protections are necessary for women from bans on pornography to child-rearing benefits for mothers, but not for fathers, not equally for fathers, the greater protection that women need from child sexual molestation, where they are more frequently the victims, assaults and battery against the person, a form of rape or assault with intent to ravish. I would be interested in your thinking as to use of the legislative branch as some of the other women's advocates have articulated the views in the 1980's.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think it is grand to use the legislative branch. What you discuss, Senator Specter, I think reflects a large generational difference. If the legislative branch really knew what women needed * * *. The lawmakers thought they did in the days of protective legisla- 192 N tion. The legislative branch was used extensively, and the legislative branch said we will restrict the hours for women, but not for men, we will restrict night work for women, but! not for men, we will restrict the jobs women can take, but not men, because we know better, we can protect women; they need to be protected from unhealthy and unsafe conditions, especially jobs that pay doubletime and the like. The legislature was all over the place protecting women. My generation of women knew about that style of protection and suspected it. We had the sense, my generation had the sense, that that oldstyle protection was protecting men's jobs from women's competition. So I come to legislative protection of women with a certain skepticism. I do so even today, because, although Senator MoseleyBraun is sitting there, most of the faces I see are not women's faces. I suppose if the legislature were filled with women and had only one or two men, and it was the women's judgment that the protection Catherine MacKinnon advocated was in order, I might trust that judgment to a greater extent than I would trust the oldstyle protective legislation. All that legislation, and there was a lot of it, was similar to old-style maternity leave, that said it's unsafe for you to be working when you are pregnant, so we will take away your job and send you home. That legislation was not genuinely protective, although "protection" was the label lawmakers used for it.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Judge Ginsburg, there are certainly a lot of efforts made by many of us in the Senate. Senator Biden is a leader on the protection of women against violence. We do have more women now. We do listen. I have a very activist wife who is a Philadelphia City Council member who is the toughest lobbyist I know, has more access to me. But I am interested in your thinking. Let me move on to another line, because my time is close to expiring. The issue of law enforcement is a very important one, and I hope we have time to discuss some of those concepts. My own view is that we need to curtail the lengthy Federal habeas corpus proceedings, where the death penalty is not imposed or other penalties are not imposed, because of the deterrent effect of the death penalty, although I understand there are many people who have scruples in the other direction. Let me ask you a question articulated the way we ask jurors, whether you have any conscientious scruple against the imposition of the death penalty?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. My own view on the death penalty I think is not relevant to any question I would be asked to decide as a judge. I will be scrupulous in applying the law on the basis of the Constitution, legislation, and precedent. As I said in my opening remarks, 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. So I would not like to answer that question, any more than I would like to answer the question of what choice I would make for myself, what reproductive choice I would make for myself. It is not relevant to what I would decide as a judge. 193
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. The yellow light is still on, so I will ask you one more question, Judge Ginsburg. And that is, coming back to the Equal Rights Amendment—again, I emphasize my own cosponsorship and support for it consistently—every Congress since 1923 has considered the Equal Rights Amendment. It was passed by the House of Representatives in 1971, passed by the Senate in 1972, but it did not attain the requisite 38 votes for ratification. Your writings consistently look to the ERA to solve some of the problems in adjudicating the interests of women, and my question to you is: Do you have any concern about an issue of legitimacy for the Supreme Court to identify new rights in the equal protection clause, in light of the failure of the passage of ERA, which is the way identified in the Constitution itself to establish new rights?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Specter, I tried to answer that question before. I will try once more. The 14th amendment says that no State shall deny, neither the United States nor any State shall deny to any person within its jurisdiction the equal protection of its laws. Before women were full citizens, before they could vote, maybe one could justify the lack of equal treatment. Ever since the 19th amendment, women are citizens of equal stature with men. The Equal Rights Amendment is a very important symbol, in my judgment, because it would explicitly correct the unfortunate history of the treatment of women as something less than full persons. However, the Constitution has been corrected by the 19th amendment to make women full citizens. I can't imagine anyone not reading the equal protection clause today to mean that women and men are persons of equal stature and dignity before the law. I don't think that is at all an activist position with regard to the proper interpretation of the equal protection clause of the 14th amendment.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, what you have just said appears to me to suggest that we might not need the Equal Rights Amendment.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think Martha Griffiths, when she first supported the Equal Rights Amendment in a big way in the House, said if the courts had properly construed the equal protection clause of the 14th amendment, there would be no need for this Equal Rights Amendment. In fact, the first Commission on the Status of Women, which I think Eleanor Roosevelt headed, was not enthusiastic about the Equal Rights Amendment. The Commission said it was not needed, because the courts would come in time to recognize that decisions holding that the State need not allow women to practice law, the State need not put women on juries, that those decisions are just wrong, incompatible with the statement that no State shall deny to any person the equal protection of the laws. So the supporters of the Equal Rights Amendment, even when it passed Congress—Martha Griffiths and others—made the point that, if the courts had interpreted the equal protection clause to cover all of humanity, females as well as males, there would not have been a need for the amendment. As time went on, when the Burger Court began to move in this area, the need for the amendment lessened in the practical sense. It still is important, I believe, in the symbolic sense. As I said be- 194 fore, every modern human rights document has a statement that men and women are equal before the law. Our Constitution doesn't. I would like to see, for the sake of my daughter and my granddaughter and all the daughters who come after, that statement as part of our fundamental instrument of Government.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Judge Ginsburg. I will work with you to try to get the Equal Rights Amendment passed. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Judge, the last thing you need is a lawyer, or me, as your lawyer. But another way of saying what you said, as I have read all that you have written, I think about everything you have written, that if there were an Equal Rights Amendment, it clearly would have ended the debate as to what the 14th amendment meant. There would be no need to discuss it. It is not incompatible with the 14th amendment to extend to women, as persons, the same rights as men. It would have ended the debate from the—I was going to say right, but that would not be correct—it would end the debate from those who suggest it didn't extend to women. There would be no argumentation left that they would have even for purposes of political discussion, let alone outcomes of cases in Federal courts or in the court system. Is that accurate?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That is exactly right, Mr. Chairman, and, on the legislature's part, it would have been a good way of keeping cases out of court, cases that should never have had to become Federal cases.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The last point I will make—and I thank the Senator from Pennsylvania for not only mentioning the violence against women legislation, which I drafted and have been fighting to get passed for 3 years now, and also being so incredibly helpful with me in that effort—I want to make it clear that the purpose of that—and I am going to ask you some questions about it when my turn comes—is to break down the barriers that continue to exist in the unequal application of the law. A case in point: Police officers need not have someone swear out a warrant to arrest two people in a fight. If two men are standing on a corner in a fist fight, the police officer is going to arrest them both, regardless if either one swears out a complaint. In the vast majority of cases where a woman is bleeding from an orifice and a man is standing over her and the police are called, they turn to the woman and say do you wish to swear out a warrant. And when she stands there at 110 pounds, looking at a 230-pound man, knowing that if she says yes, once he gets out on bail he may beat the living hell out of her again, they demand of her before they arrest, to swear out a warrant. They don't do that with men. There are a lot of things that aren't law, but practice. The Violence Against Women Act is intended to level the playing field. It is not intended in a paternalistic way to protect our women. That is not the purpose of it. I will get back to that. I just didn't want to let that go in terms of being compared to other attempts in the past by all-male legislative bodies to protect women. 195
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. You know the historic origin of the current absence of genuine protection. She, according to the common law, was under his wing and cover.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That's exactly right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The law assumed that he took good care of her. He was allowed to beat her, but only mildly.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That's right. It was pointed out to me, Judge, as you well know, in the first hearing I had years ago on this issue. One of the witnesses looked at me and said, Senator, do you know where the phrase rule-of-thumb comes from? And I admit I did not know. She said let me tell you. She said under our English jurisprudential system, in the common law the woman was property— I knew that—and a chattel—I understood that. And she said, but at one point in the development of the common law, we reached a point where there were too many complaints about men beating their wives to death and/or crippling them, and so they thought they had to do something. So the rule adopted by the English courts was you could beat your wife with a rod, as long as it was no bigger than the circumference of your thumb. That is real progress. I want to point out one other thing: Senator Moseley-Braun, you keep wondering why I flew to Chicago and helped unpack your apartment and move in, and to plead with you to come on this committee. Can you imagine what the Judge would have said, if both of you were not on this committee? So I am working hard substantively to change it, but also so I don't get unfairly tarred.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Mr. Chairman, I must say that you once again showed stunning brilliance and insight in making that invitation at the time. I have been delighted to serve on this committee.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I am glad you are, Senator. And I want to point out, I promised the Senator—excuse me for this digression, I will yield to my friend from Alabama—I promised the Senator, if you come on the committee along with Senator Feinstein, there won't be controversial nominees. The first 29 or so were controversial. But I have kept my promise, we finally have one. OK
Senator Howell Heflin (AL)
Senator
(D)
Senator Heflin. Senator HEFLIN. Thank you, Mr. Chairman. First, let me say that we are all delighted to see Senator Specter back. He looked a little peaked and I can understand why, but his questioning and his comments were erudite, scholarly and incisive, as they always have been. He is pretty much his old self, except he is wearing a cap and we understand why he is having to wear a cap. But let me warn you that if he comes back on his second round of questions, you had better be fearful if he is wearing a football helmet. [Laughter.] I am going to try to get into some issues and things that you have not been asked about. I think we have gone over a great number of things, and I have tried to follow the line of questioning and will attempt to go into some areas that have not been inquired about. You wrote an amazing dissent in the case of "In Re: Sealed Case" which dealt with the independent counsel law. When it went to the 196 Supreme Court and it came down as Morrison v. Olson, the Court in its opinion basically adopted your analysis relative to the issue of whether the Independent Counsel Statute was constitutional or did violate the separation of powers doctrine. I wonder if you would give us some insight into what your thinking relative to this issue. It is still an issue that is being discussed a great deal today and will be an issue that will perhaps be looked at legislatively again. Would you give us basically your thinking from a judicial basis relative to the independent counsel law?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The independent counsel law was attacked on the ground that it was an improper derogation from the full authority of the executive branch; the defendant, in the case before my court, argued that prosecution belonged to the executive branch and that Congress had improperly curtailed the executive's role in choosing prosecutors. I featured in my dissent in that case two mainstays of our constitutional system: First, separation of powers, and second, tempering the first, checks and balances. Centrally at stake was the principle that no person should be judge of his or her own cause. The independent counsel law provided for the designation of a prosecutor for the highest executive officer, the President, and those who immediately surrounded that officer. The President and his people could not be judge of their own cause without sacrificing the appearance of detachment, and reducing the prospect for a thorough investigation. It would have been a very dangerous thing, a very different thing, if the legislature had said, President, you are disabled and we are going to be the prosecutors. The Founding Fathers worried most about legislative encroachment on other domains. But the legislature enacted a law that did not assign authority to Congress. The independent counsel law took away some, certainly not all, of the Executive's authority. The process starts with the Attorney General, whose responsibility it is to ask for the appointment of an independent counsel, and there were other safeguards. But the appointment authority was placed in the courts. The law did not present the kind of question that was involved in the challenge to the Gramm-Rudman Act. In that case, it was an officer allied with the legislature could be seen as encroaching on the Executive's domain. Independent counsel, however, were to be appointed by judges. In my view, the legislation responded to a grave concern on the checking side, and was constitutional on that account. I thought the law should have been upheld by my court, as it eventually was by the Supreme Court.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Let me ask you about stare decisis. We had some questions on this, but in the past few terms, the Supreme Court has sharply been criticized for abandoning certain recently decided cases. Two examples are both in the area of criminal law. During the past term, the Supreme Court overruled a 3-year-old precedent on double jeopardy. In United States v. Dixon, the Court overturned the 1990 holding in Grady v. Corbin, which held that the double jeopardy clause barred a second prosecution for any offense based on conduct for which a defendant had already been prosecuted. 197 Two terms ago, the Court reversed a 5-year-old precedent in Payne v. Tennessee, and in its opinion, the majority reasoned that stare decisis is less vital in cases that don't involve property or contract rights because litigants have not built up reliance on the current state of the law. In your judgment, is this a sound theory of stare decisis? Would you prefer some other version such as the test that may have been hinted at in Dixon, which would inquire into the soundness of the reasoning in a prior opinion without regard to the substantive area of the law?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The soundness of the reasoning is certainly a consideration. But we shouldn't abandon a precedent just because we think a different solution more rational. Justice Brandeis said some things are better settled than settled right, especially when the legislature sits. So if a precedent settles the construction of a statute, stare decisis means more than attachment to the soundness of the reasoning. Reliance interests are important; the stability, certainty, predictability of the law is important. If people know what the law is, they can make their decisions, set their course in accordance with that law. So the importance of letting the matter stay decided means judges should not discard precedent simply because they later conclude it would have been better to have decided the case the other way. That is not enough. If it is a decision that concerns the Constitution, as did the double jeopardy decision you mentioned, then the Court knows the legislature, in many cases, can't come to the rescue. If the judges got it wrong, it may be that they must provide the correction. But even in constitutional adjudication, stare decisis is one of the restraints against a judge infusing his or her own values into the interpretation of the Constitution. Perhaps an apt example of when the Court should overrule a precedent is Justice Brandeis' decision in Erie v. Tompkins (1938), which overruled Swift v. Tyson (1842). Brandeis addressed the question whether the Federal courts could divine and declare general common law. The thought originally was that the Federal courts, being fine courts and knowing a lot about commercial law, would come up with better rules, and that Federal judgments would inspire the States and to fall in line. But that is not what happened. Instead, you not infrequently had within the same jurisdiction—the same State—two "common laws." Which one applied depended on whether you went to Federal court or the State court. Some lawyers may love that kind of situation because it gives them choices. But such duality isn't good for a society; it generates instability, uncertainty, insecurity. One of the things Brandeis said when he overruled Swift v. Tyson in Erie was that the Swift regime had proved unworkable. Is it working is a major consideration regarding stare decisis. Reliance interests did not support retaining Swift because there was no stable law to rely on. What had been generated was confusion and uncertainty. Private actors didn't know whether the law governing their transaction would be the law as declared by the Federal court or the law declared by the State court, until they had a disagreement and litigation commenced. 198 So how has a precedent worked in practice? What about reliance interests? Those things count, as well as the soundness of the decision. Stare decisis is also important because it keeps judges from infusing their own value judgments into the law.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, in Erie you have the situation, too, of where really, in effect, it goes to the 10th amendment in reserving to the States certain aspects of the law relative to that, as well as a confusion that might exist with two sets of laws in regards to it. Do you agree that
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, Brandeis said that even though Swift wasn't working as anticipated, and even though one couldn't justify retaining the precedent on the basis of reliance, he would hesitate to overrule. WTiat led him finally to do so was the recognition that the Federal courts were embarked on an unconstitutional course, and that was
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I noticed in your answer you didn't really touch on the issue of the reasoning that stare decisis is less vital in those cases involving property or contract law because of the comparison that in the more commercial field they have built up more of a reliance. Do you have some feeling that criminal law ought to be put on the same par and on the same equal basis as commercial or property law?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I don't think that reliance is absent from the criminal law field. Recall that precedent is set for the way the courts will behave, the way the police will behave, the way prosecutors will behave. One can't say that, in criminal law, reliance doesn't count. Adhering to precedent fosters the stability, the certainty, the clarity of the law; stare decisis across the board serves those purposes. We have distanced ourselves from the British practice which, until very recently, so solidly entrenched stare decisis that the House of Lords, the Law Lords, would not overrule any precedent. That rigidity became unworkable and the Law Lords today admit some leeway. But stare decisis is a firm principle of our law and important in all areas.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Let me ask you this question. Have you given any thought to televising court proceedings?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, I gave thought to it just the other night when C-SPAN was replaying a clip of an interview with me taped some years ago, and I was trying to explain appellate court procedure. And I used many words to convey the picture. One minute filmed in the courtroom, during the argument of an appeal, would have been so much clearer than my attempt to explain to an interviewer in chambers how we proceed in the courtroom. Yes, I did give thought to the matter. As you know, Senator Heflin, the Federal courts are just now embarked on an experiment on a volunteer basis. Some courts have volunteered, some district courts—trial courts—and some courts of appeals have volunteered to take part in televising proceedings. A report will be published evaluating the experiment. Based on that report, the U.S. Judicial Conference is going to come up with some proposals for the future. 199 Some of the judges are apprehensive about who will control the editing of videotapes, because one can take a snippet out of context and give the public a false or distorted impression of what goes on.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. We know the problem.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, of course, I have served on the court, and we were one of the first States to allow it at the appellate level, and locating places for cameras where it was not any disruption in the court proceedings, and our experience was excellent. Now, let me ask you about the issue of standing. In the case of Wright v. Regan, or Reagan, in 1981, you held that the parents of black children attending public schools had standing to challenge IRS failure to deny tax-exempt status to private schools that discriminated on the basis of race. The Supreme Court later overruled you in Allen v. Wright in 1983. Your decision has been cited as your willingness to be more receptive to citizens' access to our Nation's courts. In your various opinions, you have granted standing in cases to allow a woman's organization to challenge disbursing Federal funds to educational institutions discriminating against women and to allow local organizations to bring an action enforcing the Fair Housing Act. Yet you have denied standing to a trade association alleging injury for law enforcement of EPA laws in the case of Petrochemical v. EPA and denied standing to copper manufacturers challenging a Treasury regulation reducing the copper content in coins in the case of Copper & Brass Fabricators v. Treasury Department. How do you distinguish these cases, and what are your basic notions and principles on the issue of standing?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I believe I followed precedent in every one of those cases, including Wright v. Regan (1981). It was Regan. The suit was against the Secretary of the Treasury, not against the President. Perhaps I should explain why I say that I followed precedent in face of the Supreme Court's judgment reversing my decision. In Copper & Brass (1982), I wrote a concurring opinion. It was about the "zone of interest" test. I said I was bound by precedent to rule as I did, as long as that test governed. In Allen v. Wright (1984), I confronted two lines of cases involving standing. Wright was modeled on a case brought in the 1960's. That case was called Green v. Connolly (1971). It involved as plaintiffs parents of black school children in the State of Mississippi who objected to the then Secretary of the Treasury's granting tax-exempt status to private institutions regarded as white-flight schools, schools whose existence was threatening the implementation of Brown v. Board. The Green case reached the Supreme Court. The lower court's decision for plaintiffs was affirmed. It was a summary affirmance. The Court didn't write an opinion. But the affirmance counted as precedent for the lower courts. Wright v. Regan, as 1 remember, was a rather long decision. It discussed the recent precedent, some of it pointing away from standing. The strongest "no standing" precedent on point was made in the Eastern Kentucky Welfare Rights Organization (1976) case, which involved a challenge on the part of poor people to the Treas- 200 ury Department's regulation allowing a hospital to retain its taxexempt status even if it didn't provide full care for indigents. The Supreme Court held that plaintiffs lacked standing to sue in that case. Eastern Kentucky was argued as the controlling decision for Wright v. Regan. I said there were two relevant lines of cases. One line was indicated by the Eastern Kentucky case. The other line of cases had two elements. They were about race, and they fell in the area of education. Whenever there was the combination of race and education, in every one of those cases, the Supreme Court had found standing, most recently in an Alabama case. I think that case arose in Montgomery County. I found the two lines of cases in tension. As an intermediate court judge, I had to pick the line of precedent closest to my case. Wright v. Regan involved race and education, so it fit with Green v. Connolly and the race/education cases that followed it. The Supreme Court rejected the disparate lines, and said Eastern Kentucky controlled across the board. That meant "no standing" for the plaintiffs in Wright. But at the time I wrote, I tried to follow the precedent as it then existed. The cases on which I relied were all race/education cases, decisions that up until that point had not been questioned by the Court itself. So my answer regarding those standing cases is that I have tried to apply precedent faithfully, allowing access to the courts in cases like Wright v. Regan, but not in the Copper & Brass case, where the zone of interest test was dispositive. I wrote a concurring opinion, not the main opinion, in Copper & Brass. Even though the copper and brass manufacturers had a very strong economic interest in keeping up the copper content of the penny, even though they had an undeniable economic interest and an injury if Congress reduced the amount of copper, still they were not within the relevant zone of interest. Congress didn't care about the copper manufacturers when it passed the regulation saying how much copper versus how much zinc should be in coins. Congress did not think the interest of the manufacturers relevant to the congressional determination of how much of each metal should be in the penny. That was the Copper & Brass case, and I think Petrochemical was a similar case.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU commentated, when your announcement as the nominee came out, frequently said that you would be a consensus builder—I don't think anybody has asked you about this yet— with the idea that on the court that you have attempted to get judges together without necessarily affecting their integrity but moving them towards an institutional approach. And in an article you have written, you speak about the individualistic approach as opposed to the institutional approach. Would you tell us how you feel or what are the parameters that you feel should be followed relative to trying to reach a consensus as opposed to a feeling that you should dissent or you should disagree, even in concurring opinions? This is sort of a nebulous idea, but I think it is an area we ought to explore a little bit relative to your thinking on consensus building as opposed to perhaps an individualistic approach towards decisionmaking. 201
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. This is an area where style and substance tend to meet. It helps in building collegiality if you don't take zealous positions, if you don't write in a overwrought way, if you state your position logically and without undue passion for whatever is the position you are developing. Think of this way: Suppose one colleague drafts an opinion and another is of a different view. That other says, "Here's what I think, perhaps you can incorporate my ideas in your opinion, then we can come together in a single opinion for the court; otherwise, consider this a statement I am thinking about making for myself." That is one way of inviting or encouraging accommodation. Another way is to ask, "Is this conflict really necessary?" Perhaps there is a ground, maybe a procedural ground, on which everyone can agree, so that the decision can be unanimous, saving the larger question for another day. Willingness to entertain the position of the other person, readiness to rethink one's own views, are important attitudes on a collegial court. If your colleagues, who are intelligent people and deserve respect, have a different view, perhaps you should then pause and rethink, Am I right? Is there a way that we can come together? Is this a case where it really doesn't matter so much which way the law goes as long as it is clear? Now, with one of the people sitting behind me, I am hesitant to say this, but let's say a tax provision is at issue. And I think Congress meant x, while my colleague thinks Congress meant y. But either one will do for the purposes of getting on with the world.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Close enough for Government work, right? [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. In such a case, I might then say I am going to squelch my view of how the Internal Revenue Code subsection should be interpreted and go along with my colleague.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I noticed in your article pertaining to this individualistic institutional approach that you seem to—from your knowledge of the internal operations of the Supreme Court, I got the impression that you feel perhaps that there are too many written memorandums and that there is a little too few discussions, that further discussions might aid in reaching a consensus. I suppose that is based on the fact that if somebody put something in writing, they have some sort of a pride or a defendership of a written document. None of us knows exactly what goes on in the Supreme Court, but I do find that sometimes oral discussions can lead to the consensus rather than a flurry or a great number of written memorandums that might be circulated back and forth. Do I interpret that maybe that was something that you were driving at in your article?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, Senator Heflin. I understand the problem. It is easier to talk among three than it is among nine. I had a lesson in my own circuit. When we confer after a case is argued, we have a conference before the judges exchanged written memorandums. We have an immediate, oral conference. I understand that the practice in the Second Circuit—I came from New York—was once different. Judges there, at least in the 1970's, exchanged written memorandums before coming together to decide the case. And 202 I considered that way better. If you had to put pencil to paper, you had to think about the case, get your ideas together. But my colleagues' view was different. It was that, just as you said, if you put something on a circulated paper, you have kind of committed yourself to it. It becomes a little harder to shake loose from what you wrote, to retreat, than if the first discussion of the case, the first encounter, is just in conversation. It is easier to back off and to modify your position.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, thank you. I am really impressed with your knowledge of the whole history of jurisprudence. I have witnessed a great number of confirmation processes, but I believe you show more of a comprehensive knowledge than any other nominee that I have seen. Maybe we didn't ask all the questions, and maybe they were at that stage that it wasn't developed certainly in regards to some of the earlier ones. But I congratulate you on your response and your knowledge relative to the law. Thank you.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I thank you for your kind words.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is a good note on which to go to lunch, Judge. [Whereupon, at 1:27 p.m., the committee recessed, to reconvene at 2:30 p.m., this same day.] AFTERNOON SESSION The CHAIRMAN. The hearing will come to order. Welcome back, Judge. I hope you had time to have a cup of coffee and a sandwich. I-now yield to our distinguished friend from Colorado, Senator Brown, for his round.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. Thank you, Mr. Chairman. Judge Ginsburg, I look forward to a chance to chat with you, both now and later on as we go through this. I must say your performance and responses have been impressive, and I appreciate the candor that you have demonstrated here. I wanted to direct your attention to what I think is an interesting development through the years. I suppose every first-year law student learns quickly that ignorance of the law is no excuse. I am not sure many schools really explore that. But it struck me as a very important concept as we go forward, one that perhaps is at the foundation of our jurisprudence. The first case decided by the Supreme Court in which that doctrine was applied was Res Publica v. Betsy. It is a 1789 case. As near as I can tell, it is a reflection of the thinking in our common law and, before that, the Norman law, and even had foundations in the Roman law. In thinking about the concept, though, that you are responsible whether you are aware of the law or not, or liable for violating it whether you are aware of the law or not, it appears that there are a variety of reasons for it. One is the philosophy that I think was reflected in our common law that basically laws reflect common sense, or at least moral mandates; that someone, while they may not be aware of the statute number, they are aware that murder or robbery or other crimes are wrong. So that while people may not be aware of the exact law, they are aware at least of moral mandates which guide us in our daily lives. 203 I suspect another basis for it is simply that it is tough to function in society without this assumption. It would be tough to get convictions without it. But I noticed in the original case, the 1789 case, that at the time that was ruled, there were only 27 Federal statutes on the books. Clearly, that is different than our circumstances today. At last count I think there were some 26,000 pages of the United States Code, which, of course, excludes State laws. There were 128,900- some odd pages of the Code of Federal Regulations, and my impression is that this year the Federal Register will print 70,000 pages of notices and regulations that are new. In doing a quick calculation, if one were conscientious and concerned with their duties as a citizen to know what the law was, and thus to abide by it, I thought if you read 300 words a minute, which is a pretty good pace for regulations, 60 minutes an hour with no breaks, 8 hours a day with no coffee breaks, 5 days a week with no holidays, 52 weeks a year with no vacations, you would have read somewhere in the neighborhood of 31,980 pages of the Federal Register, leaving you well short of half of the new pages printed every year.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Just think how long that hearing would take. [Laughter.]
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I give you this background because I would be interested in your thoughts as to whether or not it is fair to insist that ignorance of the law is no excuse, when clearly what was once accomplishable by a conscientious citizen when that doctrine was first applied in the United States is beyond even remotely being possible now.
Ruth Bader Ginsburg
Nominee
(D)
Judge GiNSBURG. That question, Senator Brown, should be addressed first and foremost to people who sit in your forum and not in mine; that is, you can, in the statutes you pass, write in intent and knowledge requirements, and you often do. Sometimes courts have to determine what intent Congress meant, what knowledge the individual must be shown to have had. Sometimes you do speak with a clear voice, and judges appreciate it when you do. Other times we are not clear on exactly what intent requirement Congress contemplated, and then we do our best to try to determine what you meant. But lawmakers surely should advert to and address the matter. When they expose individuals to a regulatory regime, they should be explicit about the intent or knowledge requirement. A difference based on the consequences may be in order. It is one thing to send someone to prison for violating a law that person didn't know existed. It is another simply to subject a person to an injunctive order requiring compliance with the law. In between those would be some kind of monetary exaction. In this area, courts take their instructions from the legislature, which has a choice on state-of-mind issues—absolute liability, liability without fault, negligence, knowledge, intent, all that is for the legislature to say. But every citizen should be mindful that we are subject to so much more law than we once were.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I appreciate that. Of course, the Romans, when they looked at this question, they came with a little different view, I think, than perhaps our common law developed. The Romans rec- 204 ognized that someone in society might have an obligation or the ability to understand what the laws were, and others who had not been educated or had other problems would not have the same level of knowing what the law was ascribed to them. I guess my question is not necessarily the wisdom of this body or of Congress making those decisions. I guess my question is: In light of the deluge—my own words—of statutes and regulations, where we as a Congress have assumed that people are aware of the law, does that trouble you, and do you see any avenues of relief in the Constitution?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Well, one thing is information, and it depends whether we are talking about the business community or individuals. From time to time, I receive from various law firms in town newsletters describing the latest developments in labor law or ERISA law, for example. Such law firms endeavor to keep their clients informed about new developments in the law. In other areas, the flow of information is less satisfactory. We talked about Stephen Wiesenfeld's case involving the mother's benefit which became a parent benefit. When Wiesenfeld's case was reported in the press, I received many letters, not simply from fathers but from mothers, who didn't know that benefit was available. The Social Security Administration has tried to increase the availability of knowledge of what the law is—not only what the law requires of you, but the benefits the law provides for you. Nowadays at funeral homes, at banks, information is accessible about benefits available on death. But I was disconcerted about the number of people who didn't know and, therefore, missed out on benefits because the limitation period for filing had passed. We now have modern means of communication to spread information. Public service announcements on TV can be useful in that way. All involved with the law—government officers and private persons—should attempt to find solutions to the problem of individuals not knowing what the law is, what the law requires of them, and the benefits provided for them.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I understand that, and I guess my inquiry was a little more focused in light of 26,000 pages of the United States Code and 129,000 pages of Federal regulations in force. We can all understand it is a useful legal fiction if you are a law writer to assume that everyone is assumed to know the law. I guess my question is: Does the Constitution afford any protection against that legal fiction because of the voluminous nature of the laws, the incredible breadth of laws on the books now, and regulations on the books? Does the Constitution provide any protection to citizens that may inadvertently violate a law that they had no idea existed?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I can't answer that question in the abstract. If it were to come before Court in the guise of a specific case where a party said the law is exposing me to a penalty, it is unfair, unjust, it violates due process, I would have the concrete context and the legal arguments that would be made on one side or the other. But, again, I would like to emphasize that this Constitution is the Constitution for the Congress of the United States, and before any law is passed, every legislator should be satisfied that, in his or her judgment, the law that has been proposed is compatible with con- 205 stitutional limitations. The Constitution is our fundamental instrument of government, and it is addressed to this body before it is addressed to the courts. We get it only when a citizen or person complains that Congress has, in effect, violated the highest law.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I appreciate the nature of your answer and the limitations, and I suspect one of the reasons we have a Court is that the Founders of our country knew the limitations of the legislative body, or at least suspected them. But are you intrigued with this? I don't mean to bother you with abstractions, but it strikes me that with the very volume of what we have attempted to do in the way of regulating, to me it is an intriguing question that is a difficult one that I think at least raises substantial issues. I don't mean to put words in your mouth, but are you troubled by the breadth of what we have attributed to people in the way of knowledge?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. And not simply in the way of laws. Think of what this body puts out, think of the massive regulations put out by the agencies. Even at the court level, each year the courts produce more volumes of the Federal Reporter than they did the year before. There was a day—when I was in law school and, later, when I was a law clerk—when I skimmed all the Federal advance sheets, the F.Supp.'s and the F.2d's. That would be impossible for me to do nowadays. I can just about manage U.S. Law Week each week. Yes, we continue to make more and more law, both in the legislatures and the courts, and the agencies produce more than both of those put together.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I always suspected that those who came in number one in their class at Harvard or Columbia did things like that, but I didn't know. [Laughter.] You have attracted some attention by observing with regard to Roe v. Wade that perhaps a different portion of the Constitution may well deserve attention with regard to that question; specifically, if I understand your articles correctly, the equal protection clause of the Constitution rather than the right to privacy evolving from the due process right contained in the 14th amendment. Would you share with us a description of how your writings draw a relationship between the right to choose and the equal protection clause?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I will be glad to try, Senator. May I say first that it has never in my mind been an either/or choice, never one rather than the other; it has been both. I will try to explain how my own thinking developed on this issue. It relates to a case involving a woman's choice for birth rather than the termination of her pregnancy. It is one of the briefs that you have. It is the case of Captain Susan Struck v. Secretary of Defense (1972). This was Capt. Susan Struck's story. She became pregnant while she was serving in the Air Force in Vietnam. That was in the early 1970's. She was offered a choice. She was told she could have an abortion at the base hospital—and let us remember that in the early 1970's, before Roe v. Wade (1973), abortion was available on service bases in this country to members of the service or, more often, dependents of members of the service. 206 Capt. Susan Struck said: I do not want an abortion. I want to bear this child. It is part of my religious faith that I do so. However, I will use only my accumulated leave time for the childbirth. I will surrender the child for adoption at birth. I want to remain in the Air Force. That is my career choice. She was told that that was not an option open to her if she wished to remain in the Air Force. In Captain Struck's case, we argued three things: First, that the applicable Air Force regulations—if you are pregnant you are out unless you have an abortion—violated the equal protection principle, for no man was ordered out of service because he had been the partner in a conception, no man was ordered out of service because he was about to become a father. Next, then we said that the Government is impeding, without cause, a woman's choice whether to bear or not to bear a child. Birth was Captain Struck's personal choice, and the interference with it was a violation of her liberty, her freedom to choose, guaranteed by the due process clause. Finally, we said the Air Force was involved in an unnecessary interference with Captain Struck's religious belief. So all three strands were involved in Captain Struck's case. The main emphasis was on her equality as a woman vis-a-vis a man who was equally responsible for the conception, and on her personal choice, which the Government said she could not have unless she gave up her career in the service. In that case, all three strands were involved: her equality right, her right to decide for herself whether she was going to bear the child, and her religious belief. So it was never an either/or matter, one rather than the other. It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law. Now, that argument—that discrimination, disadvantageous treatment because of pregnancy is indeed sex discrimination—was something the Supreme Court might have heard in the Struck case, but the Air Force decided to waive her discharge. Although the Air Force had won in the trial court and won in the court of appeals, the Supreme Court had granted certiorari on Captain Struck's petition. At that point, perhaps with the advice of the Solicitor General, the Air Force decided it would rather switch than fight, and Captain Struck's discharge was waived. So she remained in the service, and the Court never heard her case. In the case the Court eventually got, one less sympathetic on the facts, the majority held that discrimination on the basis of pregnancy was not discrimination on the basis of sex. Then this body, the Congress, in the Pregnancy Discrimination Act, indicated that it thought otherwise. The Struck brief, which involved a woman's choice for birth, marks the time when I first thought long and hard about this question. At no time did I regard it as an either/or, one pocket or the other, issue. But I did think about it, first and foremost, as differential treatment of the woman, based on her sex. 207
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I can see how the equal protection argument would apply to a policy that interfered with her plan to bear the child. Could that argument be applied for someone who wished to have the option of an abortion as well? Does it apply both to the decision to not have an abortion, as well as the decision to have an abortion, to terminate the pregnancy?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The argument was, it was her right to decide either way, her right to decide whether or not to bear a child.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. In this case, am I correct in assuming that any restrictions from her employer to that option, or to that right, would be constrained by the equal protection clause?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes. In the Struck case, it was a woman's choice for childbirth, and the Government was inhibiting that choice. It came at the price of an unwanted discharge from service to her country. But you asked me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity. 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.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I also appreciate that you simply presented this not as the only approach, but as an option that was looked at. With regard to the equal protection argument, though, since this may well confer a right to choose on the woman, or could, would it also follow that the father would be entitled to a right to choose in this regard or some rights in this regard?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. That was an issue left open in Roe v. Wade (1973). But if I recall correctly, it was put to rest in Casey (1992). In that recent decision, the Court dealt with a series of regulations. It upheld most of them, but it struck down one requiring notice to the husband. The ruling on that point relates to a matter the chairman raised earlier. The Casey majority understood that marriage and family life is not always all we might wish them to be. There are women whose physical safety, even their lives, would be endangered, if the law required them to notify their partner. And Casey, which in other respects has been greeted in some quarters with great distress, answered a significant question, one left open in Roe; Casey held a State could not require notification to the husband.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I was concerned that if the equal protection argument were relied on to ensure a right to choose, that looking for a sex-blind standard in this regard might also then convey rights in the father to this decision. Do you see that as following logically from the rights that can be conferred on the mother?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I will rest my answer on the Casey decision, which recognizes that it is her body, her life, and men, to that extent, are not similarly situated. They don't bear the child.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. SO the rights are not equal in this regard, because the interests are not equal?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It is essential to woman's equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex. 208 Consider in this connection the line of cases about procreation. The importance to an individual of the choice whether to beget or bear a child has been recognized at least since Skinner v. Oklahoma (1992). That case involved a State law commanding sterilization for certain recidivists. Sterilization of a man was at issue in Skinner, but the importance of procreation to an individual's autonomy and dignity was appreciated, and that concern applies to men as well as women. Abortion prohibition by the State, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred. The two strands—equality and autonomy—both figure in the full portrayal. Recall that Roe was decided in early days. Roe was not preceded by a string of women's rights cases. Only Reed v. Reed (1971) had been decided at the time of Roe. Understanding increased over the years. What seemed initially, as much a doctor's right to freely exercise his profession as a woman's right, has come to be understood more as a matter in which the woman is central.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I was just concerned that the use of the equal protection argument may well lead us to some unexpected conclusions or unexpected rights in the husband. You had mentioned earlier, I thought, a very sage observation, that provisions that, if I remember your words correctly, provisions that limited opportunities have been sometimes cast benignly as favors, that we ought to take a new look at these things that are thought as favors in the past. I think that is a fair comment and a very keen observation. I guess my question is: If you look at these provisions of law that treat women differently than men and decide that they genuinely are favorable, not unfavorable, or practices that are favorable, not unfavorable, does this then mean that they are not barred?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, that sounds like a question Justice Stevens once asked me at an argument. I said I had not yet seen a pure favor. Remember, I come from an era during which all the favors in the end seem to work in reverse. I often quoted the lines of Sarah Grimke, one of two wonderful sisters from South Carolina, and they said to legislators in the mid-1900's, I ask no favor for my sex, all I ask of my brethren is that they take their feet from off our necks. That is the era in which I grew up. I had not seen a protection that didn't work in reverse. Many of today's young women think the day has come for genuinely protective laws and regulations. Were the legislature filled with women, I might have more faith in that proposition. But, yes, you can see the difference, you can distinguish the true favor from the one that is going to have a boomerang effect, maybe so. I reserve judgment on that question.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. My time is out, but I look forward to chatting with you again. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. He's going to see if he can think of a favor for you, Judge. Senator Simon.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you, Mr. Chairman. 209 Judge, you are holding up very well in this endurance test that you are going through. I was pleased when Senator Biden, in his very first question, when you responded, you used the much neglected ninth amendment to the Constitution. I think it has a great many implications. The ninth amendment, as I am sure you know, came about as a result of correspondence between Madison and Alexander Hamilton. Madison was persuaded that we should have a Bill of Rights, and Alexander Hamilton said if you spell out these rights, there will be people who say these are the only rights that people have, and so the ninth amendment was added—the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. When Senator Leahy asked you about privacy you mentioned the fourth amendment. I think that privacy is also clearly in the third amendment.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Troops can't be quartered in your home. I think it is there by implication in the ninth amendment. But we had a nominee before us who said, when the ninth amendment says certain rights shall not be construed to deny or disparage others retained by the people, that they probably meant by the States, rather than the people. Now, that's a very, very important distinction. That nominee was not approved by this committee, I might add. But when the ninth amendment says "by the people," do you believe it means by the people?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The 10th amendment addresses the powers not delegated to the United States and says they are reserved to the States. The 10th amendment deals with the rights reserved to the States. The ninth amendment—and you have recited the history— speaks of the people. There was a concern, as you said, that if we had a Bill of Rights, some rights would surely be left out. Therefore, it was better, some thought, just to rely on the fact that the Federal Government was to be a government of enumerated, delegated powers, and leave it at that. The ninth amendment is part of the idea that people have rights. The Bill of Rights keeps the Government from intruding on those rights. We don't have a complete enumeration in the first 10 amendments, and the ninth amendment so confirms.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. SO that there is no misunderstanding, you believe, when it says "retained by the people," it means retained by the people?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It doesn't mean the States. That's the 10th amendment, yes.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I would like to also follow through on the public opinion question that Senator Biden and Senator DeConcini stressed. In your opening statement, you quote the great Justice Cardozo as saying justice is not to be taken by storm, she is to be wooed by slow advances, and a couple of other quotes that we heard here. The Bred Scott decision was probably a very popular decision in 1857. President Buchanan said we have now solved the slavery problem. But Chief Justice Taney and the others in the majority made a mistake. In the Korematsu decision regarding Japanese- 210 Americans who were taken from the west coast, you had public opinion clearly on the side of the President of the United States, Congress, the military. You had a Lt. Gen. John DeWitt who, in explaining the need for taking 120,000 Japanese from the west coast, said the Japanese race is an enemy race, and while many second- and third-generation Japanese born on U.S. soil possess U.S. citizenship and have become Americanized, the racial strains are undiluted. Then in one of the most unbelievable nonsequiturs in history, he said the very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken. What we needed at that time and did not have was a Supreme Court that said we are willing to stand up to all public opinion. The gradualist approach simply would not work in the Korematsu decision, nor could the Court say, well, Congress can change this. I am sure you agree the Korematsu decision was a tragic decision.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, I agree entirely. I think Dred Scott (1857), by the way, was a tragic decision, a wrong decision. I don't think it was such a popular decision with a good part of the country that didn't believe a person who was in a place where he could be free could be returned to a state of bondage. I don't believe that Dred Scott was a popular decision throughout the United States.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. It was divided opinion, but probably if polls had been taken at the time, it would have been a popular decision.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Korematsu (1944) was indeed a tragic decision. One of the dissenting Justices called it legalized racism. That might have a euphemism for what we now recognize that case represents. Americans of German ancestry and Americans of Italian ancestry were not treated that way.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. But the basic point, and the one that I think by implication you are suggesting, is that there are times when the Court has to stand up to public opinion, and it may be 99 percent of the time on the other side. But the Court has to be courageous and lead. It cannot sometimes be gradualist in its approach.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That was certainly the position Justice Murphy took. As you know, Justice Black wrote the opinion for the Court.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Hard to believe, but he did.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. His opinion upheld the racial classification.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM [presiding]. Pardon me for interrupting, Senator Simon. There is a rollcall vote on.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. OK.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. We have 6 minutes to get there. Judge Ginsburg, I think we will take a 10-minute recess because obviously everybody else has left for the rollcall vote. I think we had better do so as well. We will recess for a period of 10 minutes. [A short recess was taken.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order, please. Let me explain, for those who may be watching this proceeding, why we all got up and left. There is a debate on the Senate floor on President Clinton's national service legislation, and Senator Kennedy is what we call the floor manager of that legislation, re- 211 quired to be on the floor of the Senate during the duration of its consideration. That is why he is not here, and that is why all of us got up and went to vote. We were not abandoning you, Judge. I know you know this, but for those who are in the audience, it may be useful for them to understand why we all started to trickle out of here. I was worried that some of them who are new to the Senate might think it was a fire drill and they weren't informed or something.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. It is true.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is true. I also want to tell you, as I got up and left—I should do this, Judge, but as we got up and left, I was heading over in the subway car with everyone else to vote. Senators Moseley-Braun and Feinstein got in the car with me and said, "Now we know what you think about equal protection." I said, "What do you mean?" She said, "You got up knowing there was a vote, went to vote, and left us there." [Laughter.] That was not my intention. We were supposed to work this out, Judge, that half of us would leave so you could continue the questioning and half would come back. But, at any rate, none of that is on your time, Senator.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. YOU have 22 minutes and 17 seconds left, and the floor is yours.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I thank you very, very much, and I will use all 22 minutes and 17 seconds.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. And more if you need it, Senator.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. All right. You have been asked by both Senator Metzenbaum and Senator Leahy about the Lemon test on the question of religion and Government. Through the years, we have had nominees here who have all been asked and have all given answers one way or another. My staff checked out four nominees I have asked this question of who now sit on the Court. One was very critical of the Lemon test, and he continues to be critical of the test on the Court. One was very supportive, and he continues to be supportive. One said, "I have no personal disagreement with the test," but he has voted consistently in opposition to the Lemon test. And one was not clear, and he has not been clear since he has been on the Court. And I guess I would put you down in the not clear position right now. Is that an incorrect assumption on my part?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Simon, only to this extent: It is the governing test, and my approach is the law stays the law unless and until there is a reason to displace it. So I recognize Lemon v. Kurtzman (1971) as the governing test. It is the law that is, and I am not in doubt about that. I do know that these are very difficult cases. They come to the Court with a record, with arguments. I have informed the committee that I have had only one case involving, on the merits, the establishment part of the religion clauses. So I am going to devote very careful thought to the matter. I am going to read a lot more than I have read up until now. I appreciate the values involved in making these decisions. More than that, I am not equipped to say. 212
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. IS it misreading what you are saying to say you have not had a chance to dig into this as thoroughly as you eventually will obviously have to, but that on the basis of your limited knowledge of it, you have no difficulty with the Lemon test now? Is that incorrect?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think that is an accurate description. It is also accurate to say I appreciate that the United States is a country of many religions. We have a pluralistic society, and that is characteristic of the United States.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And if I could just add, it is not only characteristic, I think it is very, very important that we maintain this. Obviously there is some working together. When the local Methodist church is on fire, no one says separation of church and state, we can't call out the fire department. But we have been careful in avoiding some of the mistakes that some other countries have made.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, on my time, because we have gone through this a number of times, may I ask a question off of the last question you just asked?
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. You certainly may.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Hopefully it will help clarify rather than confuse. The Goldman case to which the Senator referred, the case which is popularly known by most people as allowing a soldier to wear a yarmulke while in uniform, you were a dissenting view in the circuit. Your view on appeal
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Mr. Chairman, would you clarify? Disallow the wearing of
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. In other words, the judge took the position that a soldier could wear a yarmulke while in uniform, notwithstanding a military prohibition against such use, she arrived at that decision using reasoning I will not go into now, but it relates to this question.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Was that a majority or minority opinion?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Her opinion ended up being the majority opinion of the Supreme Court
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I wish it did. It
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO, I mean, excuse me. Your opinion ended up being the minority opinion when it hit the Supreme Court, when it was decided.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It was the majority opinion of Congress.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Yes. [Laughter.] That is a good way of putting it.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I know.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. But you reasoned and argued, reasoned in your opinion when it was before you, that the soldier in question should be able to, under the free exercise clause—explain the case to me. [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Captain Goldman had been in service for many years, and one day the base commander said, "You're out of uniform," because he was wearing a yarmulke, which was his religious observance. The failure of the service to accommodate to that deviation from the uniform regulation was made the basis of a case that came before my court. It came before a three-judge panel. I was not on that panel. 213 The panel unanimously ruled that uniform regulations are, by their very nature, arbitrary and that the courts were not to secondguess the military in this decision. There was then a petition to rehear the case en bane. I voted to rehear the case en bane. Three people did, but the majority voted against rehearing the case. I did not write a full opinion in the Simcha Goldman (1986) case. I wrote a statement saying the case should be reheard by the full court. I said the full court should not embrace the argument that a uniform is a uniform, so there could be no deviation. The case, I thought, was worth fuller attention.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. SO you ultimately did not reach a conclusion whether or not it violated his constitutional right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I just said we should not leave the final word for our court with the three-judge panel; we should rehear the case; the full court should rehear it.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Would there have been any question in your mind about the need to rehear it had the Lemon test been in place?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Because this was a free exercise case, it involved the accommodation that the Government would have to make to the free exercise of Captain Goldman's religion. The case fell in the military category. The panel reasoned that the military setting is different. Many rights people enjoy, including free speech rights, are curtailed for members of the military. That was the main line of the panel's position in Captain Goldman's case. The question ultimately decided by Congress was: In the interest of allowing Captain Goldman to freely exercise his religion, could the military be called upon to make this accommodation to him? Congress realized the free exercise right more fully than the courts did in that instance, and that issue, I think, is now well settled.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. Of course, Mr. Chairman. If I might just add, I spoke on the floor on that issue. The question is: In addition to the fundamental religious question, the free exercise question, does it in any way impair the military? It has not impaired the Israeli military. The Indian Army has Sikhs who wear a different headdress. They are among the finest members of the military of India. So that on a military ground, also, it did not have much validity. If I may shift to a totally different subject so I get a little more of an understanding of where you are, in your opening statement you accurately described Judge Learned Hand as one of the world's greatest jurists. No other non-Supreme Court member has had as much influence in the history of our country as Judge Learned Hand. You had one unhappy experience with him, but you had the privilege of meeting him and knowing him—slightly, anyway. I wish I could have had that experience. What made Judge Learned Hand such a distinguished jurist?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. His tremendous learning, his facility with the English language so that he could describe things so extraordinarily well; his great love of the law as a craft; his genuine caring about people. Some people think he was too restrained and moderate in his judging, but he believed in the people and in the importance of keeping liberty alive in the hearts of men and women. 214 It is unfortunate that he had a blind spot, that he felt uncomfortable about dealing with a woman as a law clerk. I think you have heard the story of my acquaintance with Judge Hand.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I did. That is what I was referring to.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. But he was a man of a different age. He had been brought up not to relate to women in that kind of setting. I have told the story many times of sitting in the back of the car when my judge drove Judge Learned Hand home. That great man would say, en route home, anything that came into his mind. He would sing songs with words I didn't even know. I once said to him, How can you carry on this way with me in the car and yet not consider me to be your law clerk? And he said words to this effect: Young lady, I am not looking you in the face. Those were ancient days. There was no title VII, people were up front about feeling uncomfortable dealing with women, and that was that.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. One other aspect that you did not—and I agree with everything you said about Judge Learned Hand. I think the other aspect is he was a great champion of civil liberties.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, he was, and his decision in the Masses (1917) case was one of the bright lights in what we see now as a very unhappy episode in the history of this country—the postWorld War II days of the Red scare.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. If you were to pick a role model on the Court, living or dead, what role model or composite role model would it be?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I will stay away from the living.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. All right. [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. We are just now doing a history of our Court, a circuit history. A question came up about talking to law clerks for this history. We drew a line with the living. We said to the author, you may talk to the law clerks about the judges who can't complain about it anymore, but not clerks who served the living, at least not without the judge's permission.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is one of the incredible values of life tenure. [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I would also like to restrict my response to this century. That will make it easier, because if I didn't I would have to include Chief Justice John Marshall; he helped make us one Nation, indivisible. If we go on to liberty and justice for all, I would put together two people who spoke originally in dissent but whose position on the first amendment is well accepted today, Brandeis and Holmes. I would like to include Cardozo, but as you know, his career was principally on the New York Court of Appeals. He was known for his common law judging, and less known for constitutional adjudication. He served only 6 years on the Supreme Court. I would add to the list Justice Harlan because, as I explained before, of the judges in my time, there is no one—whether you agree with him or disagree with him—who was more honest in telling you the grounds of his decision, the competing interests, and why he came out the way he did. I spoke of his total honesty in my discussion of the conscientious objector case. 215 So if I could take those three and put them together, that would be some Justice, wouldn't it?
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. It would be. And I would like to add Learned Hand to that list, if I could, aside from that
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes; I thought we were limiting it to Supreme Court Justices, but certainly yes. I would like to put Henry Friendly there, too.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. You have been a champion of the cause of women and civil liberties for women, and Senator Grassley earlier mentioned that in our laws we have finally included Congress which has set up its own provisions for enforcement of antidiscrimination. There are problems, and under the separation of powers I think it is proper for Congress to set up its own. I serve on the Subcommittee on Disabilities, and my colleague, Senator Tom Harkin, has written me a letter, and let me just read two paragraphs from that letter. And I would like to enter the full letter in the record, Mr. Chairman. It says: Unfortunately, no Federal law prohibits discrimination on the basis of disability or, for that matter, race, gender, religion, or national origin by our Federal courts. It is my understanding that our Federal district and appellate courts have developed model policies regarding complaints of discrimination by applicants and employees. However, these policies do not specify the standards that must be used to determine whether discrimination has occurred, do not specify what remedies are available, assuming discrimination has been found, and do not include the right to appeal to the courts. Furthermore, there are no policies governing nondiscrimination with respect to access by the general public. With respect to the Supreme Court, it is my understanding that there are no written policies or procedures whatsoever prohibiting discrimination in employment and in access to Supreme Court proceedings and for remedying discrimination. [The letter of Senator Harkin follows:] Senator SIMON. NOW, I don't want to ask you to turn things around overnight. I would like to get any observations you have on this, and I would like to, 6 months from now, send a letter to the new Justice of the Supreme Court and ask her her response at that point and what you feel at that point maybe could or should be done.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I don't know what the Supreme Court regulations are. I do know that the Supreme Court in many respects has been treated differently by Congress. For example, I participated in the decision of a case involving picketing at the Supreme Court. The Supreme Court was not covered by the law that covered the rest of the Federal courts. The case was called Grace v. Burger (1985). The decision, both in our court and the Supreme Court, upheld the first amendment claim of a woman who was standing, if I remember correctly, on the sidewalk in front of the Court carrying a sign that had the words of the first amendment written on it. She was removed for doing that. I can't speak about what the Supreme Court's own rules are now. But, as you have said, Congress has accepted fair employment practices standards for itself. I hope, if we meet 6 months from now, I will be informed on the subject of your inquiry and can give you an enlightened answer. Senator SlMON. And it does seem to me that not only the Supreme Court, but the lower courts ought to have some process by which, if a person feels that he or she has been aggrieved, that he or she can go to someone and know that there is some process established, some procedures established at all court levels. I will write to you, if my staff reminds me, 6 months from now.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I will. Senator SlMON. Senator Leahy will remind me. I was pleased in reading your background about, first of all, the fact that you have gone through some things that have been tough, so that you understand the problems that people who face difficulties have, particularly your statement yesterday of riding along as a child and you saw the sign "no dogs or Jews," and your work in a social security office in Oklahoma, where you had to deal with the problems that the American Indians had. Theodore Roosevelt, in a 1913 speech—this is after he had been President—said this: Our judges have been, on the whole, both able and upright public servants, but their whole training and the aloofness of their position on the bench prevent their having, as a rule, any real knowledge of or understanding sympathy with the lives and needs of the ordinary hard-working toiler. I think that is a danger for jurists, and probably no place is at a greater danger than on the U.S. Supreme Court, where you really are isolated, and where, when you meet people, they will tend to be people of power and wealth, and not people who are unemployed, not people who have many of the problems that Americans face. Have you reflected on this at all, either in your present tenure or future tenure? How can this nominee make sure that she stays in touch with the real problems people have out there?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, Senator, I have and I know just what you mean. You can even see the difference between the Federal court 217 on which I serve and the courts across the street. The U.S. Courthouse tends to be a rather quiet, empty place. If you go across the street to the District of Columbia Superior Court, you will see a great mass of people—all kinds of legal business, all kinds of problems, including heart-rending family problems. The place is teeming; it is quite a contrast to the quieter halls of the Federal court. One of the things that I have done every other year with my law clerks, more often, if they are so inclined, 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. Now it is a District facility, so we haven't gone there in the past few years. 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.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. I would simply commend that practice, first of all. And as you prepare to take that oath and when you get together with your family—your son from Illinois, particularly—I hope that you in some way plan to continue that kind of an exposure. I think it is important. I think it is important for the members of the U.S. Senate. I think it is important for Supreme Court Justices.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It took me a long time to arrange for a tour at Alderson, which is one of the nearest women's Federal facilities. That was also instructive and moving for me.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. There are people who will have to assist you in that, because of the nature of your new position, but I think it is something that is a desirable thing. In the case of O'Donnell Construction Co. v. District of Columbia, you voted against a set-aside, and that was done, as I understand it, on the basis of the Croson decision of the U.S. Supreme Court. The Croson decision has resulted in significant damage to opportunities for a lot of minorities and women in the field of business. We have come a long way in providing opportunities, but we still have a long way to go, as you know. I had my staff dig out something from one of my books. Abraham Lincoln, incidentally, as a State legislator in 1832, came out for the women's right to vote almost a century before that happened nationally. But when he was in the legislature, one of the bills passed, fairly typical, was the act for the Wabash and Mississippi Railroad which included this provision: In case any married woman, infant, idiot or insane person shall be interested in any such land or real state, the circuit court or justice of the peace shall appoint some competent and suitable person to act for and in behalf of such married woman, infant, insane person or idiot. We have made progress, but we still have progress to make. I was interested in your decision in the O'Donnell case, whether that is solely based on response to the Supreme Court, or is there a philosophical base to your decision also?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I concurred in a decision that was written for a unanimous panel. I think the author was Judge Randolph. Our decision was controlled by Croson (1989). The District's plan measured up even less than the Richmond plan did in Croson itself. As 218 you know, under current law, a different standard applies to Federal plans; it is a more tolerant standard than the one that applies to city plans like the Richmond plan. Croson governs city plans, and Metropolitan Broadcasting (1990) governs Federal plans. There is certainly a role for Congress to play in this. My concurring statement said Croson controls this case. I also recalled, in that separate statement, the position Justice Powell had taken in the Bakke (1978) case. He said that you could have a reason for an affirmative action program, for example, Harvard's preferential admissions program, that was not tied explicitly to proven past discrimination. But the O'Donnell (1992) case in our court did not fit that mold. It was a case totally controlled by the Croson precedent.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. The second part of my question is, Do you have a philosophical disagreement with the idea of set-asides?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I tried to express my view yesterday that, in many of these cases, there really is underlying discrimination. But it's not so easy to prove. 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. The kind of settlement reflected in many affirmative action plans seems a better, healthier course for society than one that turns every case into a fierce, adversary contest that becomes costly and bitter. In many of these plans, there is a suspicion that underlying discrimination existed on the part of the employer and, sometimes, on the part of the unions involved. But, in place of a knock-down-dragout fight, it might be better to pursue voluntary action, always taking into account that there is a countervailing interest, as there was in the O'Donnell case. Members of the once preferred class understandably ask, "why me," why should I be the one made to pay? I didn't engage in past discrimination. That's why these cases must be approached with understanding and with care. I hope that is an adequate answer to your question.
Senator Paul Simon (IL)
Senator
(D)
Senator SlMON. Really candidly, it wasn't all I was hoping for, but I am getting your response and I appreciate that. My time is up, and I thank you very much, Judge. Judge GlNSBURG. Thank you, Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Cohen
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Thank you, Mr. Chairman. Judge Ginsburg, during one of the breaks earlier today, I threw caution to the wind and agreed to go on a television program to comment on the proceedings that we are now conducting. I will be careful how I phrase this, because they are still covering me right now. Two of the journalists indicated that there were several key points involved in these hearings. No. 1, Senators weren't as knowledgeable as Judge Ginsburg on constitutional decisions. No. 2, we weren't as prepared to followup your answers with an analysis of your judicial thought process. No. 3, we were too busy with other responsibilities and we were relying primarily upon our staffs. No. 4, we do not seem as passionate as a committee about your nomination as, say, the committee was during the Robert Bork hearings or those of Judge Clarence Thomas. No. 5, you man- 219 aged to deflect or, put more roughly, duck questions that might provide some insight into your thought process, because of the possibility, however remote, that those issues might come before the Court at some future, but indefinite time. I pled guilty to all charges that were made, noting that there were several members of this committee who were expert in the field of constitutional law. Nonetheless, it seems to me it called into sharp focus exactly why we are here, what is the purpose of this committee in its advice and consent role. We are supposed to determine whether you have the intelligence and the competence and the temperament to serve on the Supreme Court, and I think there is very little disagreement among the members of this committee that you have all of the requisites. The additional question that we are seeking to probe is that of your judicial philosophy. Senator Biden indicated we crossed that line finally in this process of confirmation in looking at a judge's or a nominee's philosophy. But even that examination of philosophy is not without its limits. For example, it is not incumbent upon you to agree with my interpretation of a law or what I think the law should be, or that of any other member. What I think we are trying to do, and are only really qualified to do, is to examine your philosophy to determine whether we find it so extreme that it might call into question those other requisites that I mentioned before. Barring that, I don't believe that the philosophical issue is one that would be appropriate for the committee. That is my personal view. There are a number of reasons, in my judgment, why there are no fireworks in this hearing, and why the members may seem to be less prepared than they were, let's say, during Judge Bork's confirmation hearings, and perhaps those of Justice Thomas. No. 1, your record as a jurist is not perceived to be outside the mainstream of current jurisprudence. That in my judgment is a major factor. There might be a different view, I would submit to you, if you had been nominated immediately following your string of victories before the Supreme Court in arguing on behalf of the expansion of equal protection. There might have been quite a bit of controversy on this committee at that time, because you might have been perceived as a political activist who would bring those activities to the Court. Two things have intervened: No. 1, time, during which the American people have caught up to your views and now accept them as what we should have assumed would have been the law all along; and, No. 2, your service on the Court where you practice restraint, instead of pursuing a political agenda. The reason that so many of the members have dwelled on the issue of whether you might do the right thing—you were citing Justice Marshall in the Worcester v. Georgia case—is that there is suspicion in some circles, at least, that you are basically a political activist who has been hiding in the restrictive robes of an appellate judge, and that those restrictions will be cast aside and you will don a much larger garment. There is fear and apprehension on the part of some that that might be the case, and there is the hope on the part of some that that is precisely what you will do. 220 So for all of those reasons, we are trying to probe exactly where it is you would likely take yourself and perhaps even the Court on any given decision. I was struck by your comment in response to Senator Biden yesterday. You said every Justice and judge should do what he or she believes to be legally right. I looked over at Senator Biden and he was smiling, and he said, "You're good, Judge, you're real good." I jotted a note that said "delphic ambiguity." I am sure you are familiar with Greek mythology about the delphic oracle, where people would go to this cave and they would ask the mouth of the cave a question, and the answer would come back, to be interpreted by the listener to whatever he or she wanted to hear at that time. I can recall one classic case where a leader of an army went to the delphic oracle and said, "Tell me what will happen if I invade Greece or a province tomorrow." And the answer came back, "If you invade tomorrow, a great army will fall." Buoyed by that, he went back, got his troops together and went in and got massacred. A great army did fall, his army. So we have come to see those kinds of responses as perhaps delphic in their ambiguity. It also struck me that the response that every judge should do what he or she believes to be legally right is something of a Socratic exercise. I thought of the Socratic dialog in which the question is posed, Is beauty pleasing to the gods because it is good, or is it good because it is pleasing to the gods? In this particular case, I would ask, Is it the right thing because it pleases the Court, or does it please the Court because it is the right thing? That is the kind of Socratic question that we are trying to resolve here. In the absence of established precedent, is what the Court believes to be the right thing based upon what is morally right or what it perceives to be socially right?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I have yet to see the case where the Court has nothing to guide it, where there is that kind of blank. There is always the text that we are interpreting. The text comes in a certain setting. There is in this day and age an abundance of case law and commentary. I have not seen a case where the Court totally lacks way pavers.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Aren't there always questions where you call it a first impression?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes; that means the precise case hasn't been decided by the Court. But there are, almost always analogies. I have not seen a case without analogies. And there are often choices to be made. I described one when I spoke of Wright v. Regan (1981), where there were two lines of precedent; the case, the particular case, could have been placed in either category. We placed it in one category. The Supreme Court said we were wrong; it belonged in the other. There are those kinds of choices. But I think every judge in this system is committed to the health and welfare of the Federal courts. When one compares to other systems what we have and the high position of our Supreme Court—a position unique in the world—the value of our system becomes clear, and we want to keep the system safe. 221
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. All right. Let me rephrase it a bit. Senator Biden asked you under what circumstances it would be appropriate to do the right thing; that is, to step out in front of the political process or perhaps even, indeed, public opinion. We can go back and look at the Brown case in which you felt there was a sufficient legal foundation for the Court to have stepped out, at least a little bit, in front of public opinion at that time. There is the Roe decision in which I think you felt, in writing your analysis of that particular case, that there was an insufficient foundation, at least politically, to support that decision and that the Court might have reached a different result or perhaps the same result under a different rationale. These are two cases where they stepped out in front to make a rather bold decision. The question I have is: What if you have public opinion polls which delineate a fairly stable body of public opinion and Congress has taken either no action or has passed a law which you perceive to be inconsistent with public opinion? What would be your role as a Supreme Court Justice in doing the right thing under those circumstances?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. If Congress has passed a law inconsistent with public opinion, then the public will react to it one way or another, and either accept it or not accept it. That is what legislatures
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. NO; I am asking it a different way. I am asking what if you have a situation in which Congress has taken no action in this area but public opinion polls show that there is a fairly solid majority in favor of a particular social objective. Congress has either taken no action or, in fact, passes an act which is inconsistent with what is perceived to be a solid body of public opinion. What do you believe the role of the Court should be under those circumstances?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. We do not have a tricameral system. The courts don't react to public opinion polls. They do react to what Professor Freund described as, not the weather of the day, but the climate of the age. I tried to explain that when I talked about the 19th amendment and the 14th amendment.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me go ahead and quote what you did write, and perhaps you can clarify it for me. You indicated that you approve of a change in constitutional interpretation that has been brought about by a "growing comprehension by a jurist of a pervasive change in society at large." So you believe the Court should acknowledge a pervasive change in society at large in reaching a constitutional decision. What I am asking you is: What if society at large is ahead of the legislative branch?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Cohen, I must ask you to place the statement that you read in context. It was made in a very specific context. The point was that, at last, the country had come to appreciate that women were full and equal citizens with men; that the perception of women's place that marked the 19th century and the 18th century had become obsolete; that when the 19th amendment gave women the right to vote, they became full and equal citizens entitled to the same protection men had under the 14th amendment. 222 I was speaking in that context. I was not addressing a grand, philosophical concept that would apply across the board. I spoke specifically and only of the growing understanding of society that women were equal citizens. That is the point I made in the writing to which you referred.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Right, but the language, I would assume, would apply to other situations as well, would it not? If there is a growing comprehension by that jurist of a pervasive change in society at large, that in your judgment would at least argue for or, indeed, perhaps even compel the Court to recognize that change, even in the absence of a statute or perhaps even in opposition to a statute, would it not?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, I have spoken in the context of gender equality. There are other contexts in which people are making claims and will be making claims that will come before the Federal courts. I cannot say anything more than I have already said on that subject.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. In other words, should I just take that argument and confine it only to the equality of women under the 14th amendment?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Take what I wrote and appreciate that I believe it would be injudicious of me to speak now about the many classifications that could come before the Court. May I recall what I said in my opening remarks, that I do not want to offer here any hints on matters I have not already addressed.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. All right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. To avoid prejudgment, I must draw the line where I did.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me go on. I take it you do believe that the Equal Rights Amendment is still necessary to provide an explicit constitutional guarantee of equal protection for women. Do you still believe that?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I have said that I think the Equal Rights Amendment is an important symbol. Our Constitution has survived for over 200 years with very few amendments. I appreciate that, and would like to keep it that way. On the other hand, I do think that at the end of this century, the Equal Rights Amendment would be, even if only symbolic, an important symbol to add explicitly to the Constitution, because I would like the statement the amendment makes to be clear to every grade school child.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me explain to you why I am asking this question so you won't take offense that I might be quoting something out of context. My understanding is you have written that you believe the Equal Rights Amendment is necessary to provide an explicit constitutional guarantee of equal protection for women, that the Supreme Court has used what you call creative interpretations to accommodate a modern vision of sexual equality, and that such interpretation, however, has limits, but sensibly approached, it is consistent with the grand design of the Framers. I believe that is a pretty close paraphrase of what you have written.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. The question I have is: What are the limits that you believe are still in place? And would you wait for Congress to 223 eliminate those limits, or would you engage in creative interpretation to achieve the elimination of the limits?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I must return to my plea for understanding that a judge works from the particular to the general.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. What are the limits you see that the Court has imposed in not granting full recognition to equal rights for women through this process of creative interpretation?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I don't think that the Court has imposed limits. The Court takes these matters case by case. In the most recent cases the Court struck down a gender classification. It said the standard of review is still open; the Court has not rejected the most stringent standard of review for gender-based classifications. But I do want to clarify. I appreciate the compliment that you paid me, but you must understand how unfamiliar this milieu is to me. I haven't done anything as a teacher or an advocate without tremendous preparation, without a written outline or brief, without notes for oral argument. I never taught a class without hours of preparation, at least 4 hours for every 1 hour I spent in the classroom. So this milieu is much more familiar to you
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. In other words, you would rather be up here asking us those questions, right? [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. This questioning is a very healthy exercise, because you are making an indelible impression on me of what it is like to sit down here, on the receiving end and how much easier it is to ask the questions than to answer them.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I hope you will reciprocate in the event that any of us, when we leave this place, come before you and you are sitting on the Court. [Laughter.] In any event, I would like to move on
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. AS counsel, he means. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Not a defendant. Right. I just hope you won't reciprocate under some circumstances.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Judge Ginsburg, you were quoting, I believe, Judge Irving Goldberg yesterday. You quoted him as saying that the Court or judges were like fire fighters putting out fires that they didn't start. Some would argue that the Supreme Court from time to time has, in fact, started fires that might have remained either unignited or been smothered through what I would call supreme silence. But assume that fire of controversy is now before you. I would like to know how you view congressional intent. There are jurists who argue that the Court should disregard the tradition of looking to the legislative history of a law to determine how Congress intended that it be executed, and under this view they should look to the language in the four corners of the statute to resolve any ambiguities and not to committee reports, floor speeches, or any other items that might accompany a bill through the legislative process. Now, the proponents argue, as one has said, that "judicial abdication to a fictitious legislative intent" would occur were you to look for congressional intent, and that legislative history itself is the last hope of lost interpretive causes. Do you agree with that statement? 224
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It would be wonderful, Senator, if you wrote the laws so clearly that we knew what your intent was immediately on reading them. Our job is to interpret the laws as the legislature meant them to be interpreted. Best of all possible worlds for us would be that you speak clearly, you leave no doubt, and we can just read the text and say no reasonable person can disagree about its meaning. But very often, my colleagues will look at a text, and one reasonable mind will say it means x while another reasonable mind will say it means y. We must then look someplace else. In such cases, I turn to the legislative history. I do so with an attitude I can best describe as hopeful skepticism. Hopeful because I really hope I will find something genuinely helpful there and that everything will be on line, the committee report and any other statements made. It would be grand if they all coincide.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. What happens when you find legislative ambiguity? Do you look to the statements of committee chairmen, the managers of the bill? Do you look to the majority and minority leaders? Do you look to language in the committee reports? Do you give any priority in that hierarchy of words that might be found in a legislative history, assuming there is ambiguity?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Not rigidly. I can say as a general rule, if you have a unanimous committee report, that is going to be more useful, more reliable, than a statement made by a member of the chamber after the bill has passed. The statement of a single legislator generally would count for less. But I can't give you a definitive account and say it is always the committee report or it is always the statement of the sponsor that comes first. A very fine judge of my court, Judge Harold Leventhal, once said that visiting legislative history is like going to a cocktail party and looking through the crowd for your friends. There are some very recent situations in which the legislative history is so crammed that a statement saying the law means one thing can be matched by a statement saying it means something else. So, yes, one must decide the case. A judge must decide what the legislature mean. If she can't tell from the words of the statute, she must resort to our sources of help. Sometimes a judge can reason by analogy. Perhaps a similar statute was passed that has a clearer statement either in the text or the history of that statute. But, yes, I do look at legislative history when the text is not clear, and I approach it with an attitude of hopeful skepticism.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I raise the issue because, No. 1, you have testified before this committee in the past, I believe in 1985, in opposition to the creation of a Federal intercircuit panel that would resolve the differences in statutory interpretation among the circuit courts. Another reason I raise the issue is that the Supreme Court traditionally upholds the executive branch's interpretation of a law unless there is a contrary congressional intent that has been established. That became of particular importance to us in the Rust v. Sullivan case in which the Supreme Court in a 5-to-4 decision upheld the Reagan administration's regulation that prohibited the grant recipients of title X family planning funds from providing counseling and referral or services on abortion. It seems to me it 225 was a reversal of longstanding tradition to achieve that particular end. For the benefit of my colleagues, the language that I quoted earlier, about judicial abdication to a fictitious legislative intent, that was Justice Scalia who articulated that position.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I am well aware of his position.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me turn, if I can, to the issue of free speech. The case involved the Community for Creative Nonviolence or CCNV v. Watt. Do you remember that case?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, I do, that was the sleeping in the park case.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Yes, the sleeping in the park case. It is not the same as "Sleeping in Seattle," but sleeping over in Lafayette Park.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. "Sleepless in Seattle."
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. YOU saw the movie?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I did, yes. [Laughter.] I don't get to see many movies, but I did get to see that one.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. YOU enjoyed it, as well.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I did, especially the music.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Do you have the sound track to the music? [Laughter.] Let me come back to the issue of conduct and speech. We have a somewhat ironic situation where conduct can in fact be interpreted as speech protected by the first amendment. For example, we know the Court's ruling on burning of the American flag. A number of people believe that to be an act which is not protected by the first amendment, but the Court ruled otherwise. So this is a case in which what I consider to be a violent act is construed to be speech. We also have a situation in which speech can be construed to be conduct. You would agree with that?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That conduct
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. That speech itself can constitute conduct.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Can you give me an example?
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I could, but if I did, you couldn't answer the question.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Then you are tipping me off that I shouldn't [Laughter.] You are starting me down the slope and I shouldn't put on the skis.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. That is precisely where I want to take you. Let me see if I can camouflage my intent here for a moment and go back to the CCNV v. Watt case. In that particular case, the Government argued that protesters could not sleep in the park. They could demonstrate, they could parade in the park and they could stand in the park, but they could not sleep in the park. The Park Service argued it violated camping restrictions, and the district court ruled in favor of the Park Service. The appellate court reversed, ruling 6 to 5 in favor of the protestors, and you, as I understand it, joined in the majority decision, but you did not join in some rather sweeping language about free speech—the on-site sleep of a round-the-clock demonstrator is 226 indistinguishable from leaflet distribution, speeches or flag displays—or something to that effect on the part of the majority. You also rejected then Judge Scalia's position that the first amendment only protected speech and not conduct, and I think you called it or wrote that it was an arbitrary, less than fully baked theory. Do you remember writing those words?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. It would seem that the Supreme Court affirmed your position as far as the first amendment applying to conduct as well as speech. What you said is that "sleeping in symbolic tents" has a "personal non-communicative aspect" that bears a "close, functional relationship" to standing or sitting in such tents, that is, it guarantees that the demonstrator is physically present to sustain around-the-clock demonstration. Then you went on to say it is not a rational rule of order to forbid sleeping, while permitting tenting, lying down and maintaining a 24-hour presence, and that "the non-communicative component of the mix reflected in CCNVs request of permission to sleep * * * facilitates expression." I can see my time is running out here.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Finish your thought.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. The question I have is whether you would give first amendment protection to any noncommunicative component of the mix in a case that involves a facilitation of expression. In other words, is that a test that we can apply in future cases that involve conduct that is in some way related to speech that would be protected, or is this the same situation where you are going to say don't take my words beyond the individual case?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The facilitative aspect of it is not entitled to the same protection as the expressive aspect of it. My comment in relation to my colleague's opinion is that one cannot draw a line between words and expression as he did, and say neatly, when you speak, that is speech, and otherwise it is conduct. I gave, as an example, this illustration: It is said that during World War II the King of Denmark stepped out on the street in Copenhagen wearing a yellow armband. If so, that gesture expressed the idea more forcefully than words could.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me just conclude. I have been struck by the irony in which one can burn the American flag and that is constitutionally protected speech, and yet, if one declares that one is gay in the military, that is not speech, that's an act. It is a paradox, perhaps, that exists, which you, Judge Ginsburg, in all likelihood will have to resolve. My time is up, Mr. Chairman. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. You have demonstrated several things. The first part of your question is that you are a much better commentator than those who ask you the questions. Senator Kohl, I got it right this time.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Thank you very much, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Just so I let it be known, one of my colleagues passed me a note saying, "It's Kohl, not Feinstein."
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. I asked them to do that. 227
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It comes with age and senility on my part, Senator. I apologize for yesterday again. I imagine I will be apologizing for the remainder of the year. Please go ahead.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Judge Ginsburg, a brief question. First, earlier this year, as perhaps you recall, during the months when President Clinton was searching for a replacement for Justice White, one of Justice Scalia's law clerks, who was seeking to find out who he would prefer as a colleague, asked the Justice whether he would rather be stranded on a desert island with Lawrence Tribe or Mario Cuomo. And as I am sure you remember, Justice Scalia answered quickly and distinctively, perhaps, Ruth Bader Ginsburg. I have two questions. First, Judge, do you want to be stranded on a desert island with Justice Scalia? Do you want to be stranded on an island with him? [Laughter.] The second question is do you see yourself on the same island of legislative intent that Justice Scalia now lives on?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU can refuse to answer those questions, Judge.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I can say one thing about Justice Scalia: He is one of the few people in the world who can make me laugh, and I appreciate him for that. On legislative intent, I think I answered the question earlier. We have had on our court interesting colloquies about the difference in our attitude toward legislative history. Wherever I am and wherever he is, I think we will continue to have that interesting difference of view on the appropriateness of seeking help from legislative history.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. So I take it you don't feel safe on the same island, you don't see yourself on the same island of legislative intent as Justice Scalia?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I don't on the question whether conduct is expression.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Judge Ginsburg, I am still trying to get a better sense of the way your experience as a person has impacted your vision as a judge and as a potential Supreme Court Justice. As I reviewed your testimony and the conversation we had several weeks ago, I was struck by how directly you have been touched by injustice. You were, as we know, a victim of gender discrimination, and you told us yesterday of having been denied admission to some resort, because dogs and Jews were not allowed there. Of course, you told us your family left Europe, in part, to flee discrimination and persecution. Now, up until Chairman Biden introduced me yesterday, I myself have never experienced gender discrimination. But I also remember seeing those "no dogs and Jews allowed" signs in the community where I went to camp as a kid. As we all know, today, access to society's opportunities and institutions is still denied to many. For example, kids who can't vote, who contribute money to politicians, are still left out. The growing disparity between rich and poor in our country is barely being addressed. And while great progress has been made in civil rights, many minorities and women are still denied full equality. I am in public life partly because I want to do what I can to ameliorate these conditions. What I would like to do is to discuss with 228 you your motives, your commitment, and perhaps some of your passions. As an advocate, you, on behalf of all women in our society, slowly scaled the mountain of injustice. As part of that process, you turned to the courts, and it was there that you sought decisions to extend the current range of rights for women. So I am a little bit confused about the tension between the somewhat restrictive role you describe for judges and the much more dynamic role that you adopted as an advocate. This now is the third confirmation hearing that I have been involved in, and in each of them, Judge Ginsburg, the nominee has told us or asked us to ignore certain aspects of their personality or their previous life-work experience, and you appear to be doing somewhat of the same thing. You ask us to judge you almost only as a judge, and not to consider very much of your experience as an advocate. But I think we need to judge you as a total person, a person who felt discrimination and fought against it, as a woman who cares about the future of her children and grandchildren, in short, as a whole person. I, for one, don't believe that you can shed your total life experiences and your personality when you sit at the bench. I know you do not have and should not have an agenda in terms of specific issues, but I wonder if you have an agenda in terms of broad concepts. When you were an advocate, you sought to persuade the courts to listen to what were then novel arguments about gender discrimination. And as a Justice, when you sit with your colleagues to decide what cases to hear, you will for that moment also be an advocate, seeking to persuade your colleagues to accept certain cases which raise certain kinds of issues. As a Justice, will you, as you did as an advocate, encourage the Court to hear cases whose facts allow you to entertain novel claims and break new ground? Or will you be inclined to be a moderate incrementalist in that capacity, as well, encouraging the Court to hear cases whose facts raise more narrow issues and restrict the range of a decision? Finally, what I am trying to say, Judge, is that, as a lawyer, you helped build a ladder which allowed women to climb into the courts and begin the process of achieving equality. As others seek to construct their ladder, do you feel any special obligation to help them get their day in court?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator, I have not asked you to overlook, nor have I apologized for, anything I have done. Some of the best work I have done is reflected in my briefs. But I am a judge, not an advocate. I am reminded of the story that Judge Constance Baker Motley tells. She was once asked to recuse herself from a title VII case, because it was a sex discrimination case and she was a woman, so surely she should not sit on the case. She reminded the lawyer who made that application that there are only two choices, either you are a man or you are a woman. She said she would decide that case fairly and no one should think she is disqualified. Of course, the role of a judge is different from the role of an advocate. An advocate makes the very best case she can for her cli- 229 ent. A judge judges impartially. A judge at my level takes what is put on her plate. We don't have a choice. You are right in pointing out that the Supreme Court's jurisdiction is discretionary, and the obligation of those judges is to take the cases that most need a national solution. The Court doesn't sit there to take the easy cases. You don't need a Supreme Court for the easy cases. The Justices must look at what issues need to be decided most for the Nation, and that's the basis on which the judges make their decisions about what to take. I can't answer any more precisely than that, but I think one of the reasons the Supreme Court was eager and urged Congress to remove the mandatory jurisdiction was that the Court then could take the cases that most needed a national solution.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Well, I think that is a very good answer. When you and your fellow Justices, in the event you are confirmed, will be sitting, you will be deciding every year collectively, and you will have the right and the obligation and the opportunity to exercise the judgment as to which cases the Court will take. Just as a simple matter of fact, I think we need to point that out and understand that, and when you make those decisions, you know you will be exercising judgments, of course. And you said you will take those cases which will most appear to need some national solution in our society. So let me ask you: What do you think are the major problems and challenges that face our society? I just throw out things like racism, sexism, guns, crime, drugs. Give us some indication as to what you think some of these major unresolved problems are that we are facing in our society today.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. You listed a number of the ones that would be on the top of anyone's list. But the Court doesn't deal with problems at large—crime or violence in our society. What comes to the Court is a particular case raising an issue in a particular context; unlike legislators, courts don't entertain general issues. They resolve concrete cases. The Court also considers timing. Sometimes the Court believes it will be able to judge better, if it has more returns from the other Federal courts. That is, perhaps the first time an issue is presented, the Court shouldn't take the case. Perhaps the Court would benefit from the views of several judges on the question. If all of the judges who have heard the matter are in agreement, the Court might decide that it need not take up the issue. If there is a division among lower court judges, then there may be a greater need for Supreme Court disposition. The idea is sometimes called percolation—having an issue aired in the lower courts for a time, having commentators speak to it, so that when the Court ultimately judges the case, it will be better informed to make the decision. In some areas, that is a wise thing to do. One of the cases in which I participated—a decision the Supreme Court reversed—might serve as an example. The case involved the fourth amendment. The Supreme Court had decided that if police officers stop a car, open the trunk and find a suitcase in it, they can't open the suitcase without a warrant. Cases then trooped before the lower courts involving other containers in cars—cardboard boxes and plastic bags, for example. 230 Lower courts began to draw a "luggage line"; some applied a "worthy container" doctrine to determine when police officers needed a warrant. One was needed for a leather suitcase, for sure; lower courts were not so sure about lesser containers. My court, in that time of uncertainty, got the case of a leather pouch and a paper bag, side-by-side in a car trunk. The three-judge panel held that the police needed a warrant before they could open the leather pouch, but didn't need a warrant to open the paper bag, because it was a flimsy, unworthy container. I wrote an opinion for the full court saying we have now seen an array of container cases, going from the leather suitcase to the lowly paper bag, and we can't expect police officers to make worthy container judgments on the spot. Either you can open a container or you can't without a warrant. Because the Supreme Court had held that police officers could not open a suitcase without a warrant, my court held police could not open any closed container without a warrant. The Supreme Court said you have persuaded us that police officers should not be expected to draw luggage lines on the spot, but you are wrong about the ultimate solution. Once police officers have reason to stop a car, they can open the trunk and inspect anything in it without a warrant. That was a situation in which it was at first thought that police, and then courts, could distinguish between containers on the basis of their character. By the time the issue got to the Supreme Court, the Court saw that a "worthy container" rule would not work. The Court might not have seen that in the very first case. It took a string of cases in the lower courts—there really were cardboard box and plastic bag cases—all kinds of container cases. So that is an example of percolation. The Supreme Court was better informed, I think, in making the ultimate decision because the issue had been considered in the circuits for some years and the Court could take the variety of lower Court opinions into account when it made its final decision.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. I know how much you care for your grandchildren. It is perfectly obvious to all of us who have seen this confirmation hearing, and it is a great thing. As you know, what we are doing without their ability to represent themselves is imposing an enormous tax burden on them. We are building it up year by year, and they have no way to respond, to react, to protest, to vote us in or out. They just sit there and see it happen. And we all know that someday they are going to have to pay a price for that. How can they be represented by the courts? Is there any way that your court can represent them? There is taxation without representation, an enormous burden of taxation without representation. Does that in any way strike you as something that the courts might have a right to take a look at someday?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think you must represent them and their parents must represent them, and we all must represent them. All persons should care about the next generation. In a democracy, the people and the legislators must care about what is happening to the next generation. 231
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Judge Ginsburg, Justice Brandeis once said that you can judge a person better by the books on their shelf than by the clients that they have in their office. So I am asking you what is on your shelf. Could you tell us a little bit about your reading habits, the kinds of books you read, what book you most recently read?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I can tell you the two books I most recently read. I don't know that these are representative, but most recently I read "Wordstruck" by Robert McNeil, and Marian Wright Edelman's book, dedicated to her children, 'The Measure of Our Success." I haven't been doing heavy reading in these last 5 weeks apart from reviewing over 700 of my opinions, to recall what I said in them, and refreshing my recollection of various areas of Federal law. My husband is a voracious reader. He often selects books for me. He knows what I would enjoy. Every once in a while, I choose something for myself, like 'The Bean Tree," which I recently read and enjoyed. But when my husband reads a book he knows I would particularly like, he says, "Read this one," like "Love in the Time of Cholera," which I adored.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Do you read a great deal of fiction or nonfiction, or is it equal?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I probably read more fiction because I deal every day with so much nonfiction.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. All right. Judge Ginsburg, if confirmed, you will be replacing Justice Byron White, of course. What are your thoughts on Justice White's career on the Court? In what ways do you think you might be like or different from the person that you are most likely to be replacing?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The differences I think are obvious. I surely do not have his athletic prowess. [Laughter.] He is very tall, and I am rather small. I have tremendous admiration for him. I hope I am like him in dedication to the job and readiness to work hard at it. I can tell you that he has been so grand and thoughtful. He called me the day of the nomination, and called me at least twice while cleaning up—he is moving his chambers—to ask me whether I would like him to save for me this or that document, items he thinks would be particularly useful for a new Justice. He has already sent me some pages with the advice, "Don't read this now, but read it a month from now." He is a very caring, wonderful person. I would like to say something about Justice White that few people appreciate. It has been said many times here that I argued six cases in the Supreme Court and prevailed in five. If it had been up to Justice White, I would have prevailed in all six because he voted for me every time. He was the only one who did, although I am happy to say that Justices Brennan and Marshall came close in that one case the Court decided against my client. So I feel a particularly strong affinity to Justice White.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. That is very good. Since your nomination, Judge Ginsburg, there have been reams and reams of information that have been printed and impressions that have been printed about 232 you. Anything that you have read that has struck you particularly as being reflective of the kind of a person you are? Or don't you read these things? Don't they interest you? How would you describe, just in general terms, the person that you would like us to know today on the eve of what may be your confirmation as a Supreme Court Justice? Recognizing that this is probably the last time that the American people will ever have a chance to glimpse you as a person and what you would like them to think most of all when they think of you.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I would like to be thought of as someone who cares about people and does the best she can with the talent she has to make a contribution to a better world.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Thank you very much. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. We will now take a brief break and then come back, and we will finish with our three distinguished colleagues. We will take these in the order of three, and then we will close down for the day, Judge. So we will take now a 10-minute break. Let's try to come back at 25 after, maybe about 13 minutes, and then we will start with Senator Pressler when we come back, then Senator Feinstein, then Senator Moseley-Braun. [A short recess was taken.] The CHAIRMAN. The hearing will come to order. Judge, welcome back. Senator Pressler, the floor is yours.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Thank you very much. Judge, as I mentioned to you in the meeting in my office, in my State and in the Western part of the United States there are a lot of questions about Indian jurisdiction and problems between nonIndians and Indians on or near reservations. And I subsequently sent you a series of questions that I might ask. I might say that I also wrote to all the lawyers in my State and asked them for suggested questions, and they sent back lengthy responses about what I should ask. I have stacks of their letters here somewhere. I am going to have to write all of them a thank-you note. If they watch this, they might be disappointed if I don't ask their question. But I don't think I can ask you all the questions they sent because some of them have been covered. But many of the questions they sent did involve tribal jurisdiction and some of the problems that affect Native American people. Now, the Constitution in article I, section 8, gave Congress the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. Over the years the Federal Government has employed various policies to structure its relations with the tribes. Federal policy toward the tribes has run the gamut from waging war against them to viewing them as dependent beneficiaries of a Federal trust relationship, creating reservations for them, allotting individual tracts of land to their members, attempting to assimilate them into the dominant culture, terminating their tribal status, to the present time affording them greater self-determination. Apart from the right or wrong of any of these policies, the fact of the matter is that my constituents, Indian and non-Indian, must live with the present-day realities descended from these policies. 233 These realities lead to litigation that comes before the courts for resolution. Let me say that it is not only in South Dakota, but I read in the paper that Connecticut even has a dispute over Indian lands, and I believe other east coast States have unresolved Indian questions. So it isn't strictly a Western issue. But, first of all, do you take an expansive or restrictive view of tribal sovereignty?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I take whatever view Congress has instructed. Senator, Congress has full power over Indian affairs under the Constitution, and the Supreme Court has so confirmed, most recently in Morton v. Mancari (1974). Judges are bound to accord the tribes whatever sovereignty Congress has given them or left them, and as a judge, I would be bound to apply whatever policy Congress has set in this very difficult area. Control is in the hands of Congress, and the courts are obliged to faithfully execute such laws as Congress has chosen to enact.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. NOW, what type of analysis might you apply in deciding the legal boundaries of tribal sovereignty?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I am not equipped to respond absent information about the particular case. Without the benefit of briefs and arguments, all I can say is that I would attempt faithfully to follow the law as laid down by Congress, taking account of the precedent in point.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. What weight would you give to each of the following when deciding cases involving disputes with the Indian tribes in view of what the Constitution says? Treaties between the tribes and the Federal Government that have been written over the years. We have a trust relationship between the Federal Government and the federally recognized Indian tribes. And, finally, the power of Congress to legislate matters relating to Indians and Indian tribes.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. As far as treaties are concerned, Congress can abrogate treaties with the Indian tribes, and to the extent Congress has not done so, the treaties would be binding on the Executive. And your next inquiry concerned?
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. There are treaties and there is the trust relationship. I believe the Secretary of the Interior is the trustee for the American Indians, and there is a special relationship between the Federal Government and federally recognized Indian tribes.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The Court made clear in the Cherokee Nation (1831) case that when Congress indicates in a treaty or a statute that the Government is to assume a trust relationship with a recognized tribe, the Court will then apply that policy. And with respect to the power of Congress to legislate, the Supreme Court has consistently recognized that Congress has full power over Indian affairs. So my answer is that this is peculiarly an area where the courts will do what Congress instructs, recognizing that these are very difficult questions for the legislature to confront and resolve.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Perhaps the No. 1 complaint I hear from my constituents in Indian country, both Indian and non-Indian, is in the area of law enforcement. The Federal Government, while it has the authority in Indian country to prosecute minor crimes, chooses 234 not to do so given limited resources. Assaults, thefts, beatings, and vandalism, crimes falling outside the purview of the Major Crimes Act, which confers Federal jurisdiction, are routinely unpunished because of jurisdictional voids or checkerboard jurisdictions so complicated that it is impossible for the law enforcement officer to know who has jurisdiction to take action over any given crime. It varies given the type of crime, the legal description of the land it was committed on, and the Indian blood level or tribal affiliation of both the victim and the suspect. Into this legal jungle, we have sent four different jurisdictional layers of law enforcement—local, State, Federal, and tribal—to keep order. The problem is that we have no set of rules with which to work. It is not practical to have a court hearing every time they need to determine who has the authority to take action. As a result, action is often not taken. When I meet with tribal chairmen, which I do frequently, this frequently is cited as one of the most pressing problems facing Indian people today. They want tough law enforcement but cannot get it. I hear the same from non-Indians living in or near Indian country. In a case which illustrates such problems, Duro v. Reina—it is a 1990 case—the Court held that Indian tribes could not exercise jurisdiction over Indians who committed misdemeanor crimes on the tribe's reservation if the violator was not a member of the tribe exercising jurisdiction. As the State had no jurisdiction over such individuals and Federal law enforcement generally declined to exercise jurisdiction in this area, many felt a jurisdiction void had been created by the Court. While Congress later abrogated Duro, the episode starkly highlights the jurisdictional problems that occur in law enforcement in Indian country. I guess my questions are: Can you envisage a way State authorities might be able to exercise jurisdiction in Indian country in those instances where law enforcement voids appear to exist?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Congress can certainly give the States such authority. The example that you gave, the Duro v. Reina (1990), is a case on point. In Congress' judgment, the courts got it wrong and Congress corrected their error. And with respect to the question you just asked, if Congress so chooses, it can give the States that law enforcement authority.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Given the problems that the current patchwork jurisdiction nightmare presents for people living in Indian country, that is on or near reservations, do you feel it is possible to reconcile these disparate law enforcement situations through clearer Court rulings, or is specific congressional action required?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I can't address that question in the abstract. Clearer Court decisions are always desirable. But out of the context of a specific case, I am not equipped to give you a more precise answer.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Should there be limited Federal court review of tribal court decisions, as is the case with State courts?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Again, Congress has plenary authority over Indian affairs and it can authorize Federal courts to review tribal court decisions. Whether Congress should do so is a judgment the 235 Constitution commits to the first branch, not to the third branch, of government.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. NOW, Federal allotment policies around the turn of the century divided up Indian reservations, giving tracts of land to individual Indians. In many cases, these individual allotments were sold in fee to non-Indians. We now have the situation where many acres of non-Indian fee-own land lie within the borders of Indian reservations. This has created a checkerboard ownership pattern, with non-Indians owning some land, Indians owning other parcels, and other land held in trust by the Federal Government for tribes. This situation has prompted many court cases which often must resolve the question of whether the State or the tribe has jurisdiction over nonIndians or non-Indian lands. What is your view of how the courts can clarify issues arising out of the checkerboard jurisdictional patterns in Indian country?
Ruth Bader Ginsburg
Nominee
(D)
Judge GiNSBURG. Again, Congress prescribes the jurisdiction, and I would apply the law as Congress declares it. I can't offer any policy-based view on this issue, because the question is one that is committed to the Congress.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. AS you now, beginning in the late 1800's and continuing to the early 1900's, Congress and the President opened many of the reservations in the West to non-Indian settlement. In the process, non-Indians were granted patents in fee for their lands. According to the Supreme Court in the Duro case, the 1990 Supreme Court case, the population of non-Indians on reservations generally is greater than the population of all Indians, members and nonmembers. This series of questions is intended to deal with the status of non-Indians on the reservations. Can you describe for me the importance of Indian self-government in the constitutional framework?
Ruth Bader Ginsburg
Nominee
(D)
Judge GiNSBURG. Congress has not been perfectly consistent in dealing with that question. Sometimes, as you pointed out in your opening statement, Congress has sought to eliminate or curtail tribal self-government, and other times, notably in more recent times, it has sought to strengthen tribal self-government. Fostering self-government seems to be the current trend, although some statutes still limit tribal sovereignty. Again, these are legislative decisions for the Congress to make.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Indian tribes do not allow non-Indians to participate in their elections, to serve in tribal office, or to serve on tribal juries, generally speaking. In view of these facts, do you see a principled basis for allowing an Indian tribe to impose civil fines and forfeiture against non-Indians who reside on the reservation with regard to activities on the land owned by non-Indians?
Ruth Bader Ginsburg
Nominee
(D)
Judge GiNSBURG. Again, this seems to me peculiarly a policy question committed to the judgment of Congress, and it is the function of judges to apply whatever solution the legislature chooses to enact.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. DO you see a principled basis upon which Congress can delegate to tribes the power to exercise jurisdiction over non-Indians, especially non-Indians who are residents of the reservation? 236
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. This question, too, raises policy matter that calls for a judgment by the legislature. Judges would be obliged to apply whatever law Congress enacts, but I am not equipped to comment on a policy question that is so clearly committed to the legislative branch.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. In the area of Indian civil rights, in the Supreme Court case of Santa Clara Pueblo v. Martinez, the U.S. Supreme Court held that suits against a tribe for violation of the Indian Civil Rights Act may not be brought in Federal court. As a result, individual tribal members, although citizens of the United States, are limited to relief, if any, in their respective tribal court systems. Many tribal governments do not provide for a court system independent of the executive, creating the possibility of intimidation by the executive leadership. Several years ago, I cosponsored legislation with Senator Hatch which would have permitted individuals who had exhausted their remedies in tribal court for violation of the Indian Civil Rights Act to bring an action in Federal court. This measure did not become law. Thus, people turned to the Supreme Court. Should Native Americans be entitled to the same constitutional protections afforded to all Americans in our Federal courts?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Again, all I can say is that Congress has full power over Indian affairs, and the Federal courts will follow the policy Congress sets in this area.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. NOW, are you aware of any Supreme Court civil rights discrimination cases involving Indians? And what is your view of these cases?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. In Morton v. Moncari (1974), it was argued that the category "Indian" was a racial classification. The Court held that, given the history of our country, the category "Indian" was not racial but political.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. In a recent Supreme Court decision, South Dakota v. Bourland, decided a month ago, the Court held that Indian tribes did not have the power to regulate the hunting and fishing of non-Indians on fee-owned land within the boundaries of the Cheyenne River Indian Reservation that had been taken by the Federal Government when it constructed a flood control project. Do you have any comments on that case and its significance in the area of tribal jurisdiction?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That case is a precedent that may require interpretation in cases that will arise in the future. It would not be proper for me to comment on how that precedent will be interpreted in the next case, when the next case may be before a court on which I serve.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. DO you feel the Court was correct in basing its analysis of the case of Montana v. United States, which is a 1981 case, which held that the tribal power did not extend to the regulation of hunting and fishing by nonmembers on reservation land owned in fee by nonmembers of the tribe?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator, I feel obliged to give the same response to that question. It calls for interpretation of a precedent likely to figure in a future case.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. The ninth circuit, in Washington Department of Ecology v. U.S. Environmental Protection Agency, held that 237 States could not regulate the activities of an Indian tribe in operating a solid waste project, only the Federal Government can regulate the operation of such facilities on Indian reservations. Do you have any thoughts on whether an Indian tribe can be made to comply with environmental regulations of a State, whose regulations are more stringent than those of the Federal Government?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. This is a matter that might come before me, if this nomination is confirmed. I would have to decide it in the context of a specific case, and I can't preview or forecast my decision.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. The Indian Gaming Act mandates that the States negotiate in good faith with the tribes in establishing compacts regulating reservation gambling. The statute does not define good faith nor set out much direction for what is required by either party. As you know, Indian gaming has become a controversial issue in many States. What are your views with respect to the ability of Congress to mandate that these two sovereigns negotiate in good faith, without providing significant direction to either?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The Indian Gaming Act is a new and much litigated law. Cases concerning that legislation may well come before me, so at this time I am not in a position to comment on it.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. In the 1970's, when I was a member of the House, I was quoted by the Supreme Court, albeit in a footnote, because they wanted some legislative history. I had helped the Sioux Tribes by working for legislation that allowed them to go back into court enabling them to file suit in the Court of Claims for compensation for the Black Hills of South Dakota, the doctrine of res judicata and collateral estoppel notwithstanding. After the passage of that legislation, the U.S. Supreme Court rendered a lengthy opinion, United States v. Sioux Nation of Indians, which held, in part that with passage of this legislation, Congress' mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States does not violate the doctrine of separation of powers. The Court went on to rule in favor of the Sioux Tribes on the basis for the case, holding that an 1977 Act of Congress effected a taking of tribal property, property which had been set aside for the exclusive use and occupation of the Sioux by the Fort Laramie Treaty of 1868. That taking implied an obligation on the part of the Government to make just compensation to the Sioux Nation. The money awarded for the Sioux claim to the Black Hills has been appropriated and placed in a trust account. The judgment, with interest, now amounts to more than $300 million. A plan to use and distribute the money must be agreed upon by the tribes, before the money can be put to good use by the Native Americans entitled to the judgment. I would like to see the award distributed, but the lack of unanimity on the part of the tribes as to whether to accept the award has prevented this from occurring. What is your view of the importance of United States v. Sioux Nation of Indians in the area of Indian land claims?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator, Sioux Nation (1980) is a well-known and very significant case. As you mentioned, it resulted in one of the largest judgments for an Indian tribe in the history of our country, and it righted what many people considered to be a very 238 old and a very grave historical wrong. Also, it set down some clear guideline for handling Indian just compensation claims. It brought some clarity to an area that was notably murky. With regard to the current situation—the distribution of the proceeds—that is a matter that may very well be back in the lap of the Court, so I can't comment on that part of it.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. DO you regard monetary compensation as awarded by the Supreme Court as an equitable remedy to settle Indian land claims?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Again, that is the very issue that may be coming up. The adequacy of monetary relief is what some people are challenging.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. DO you see any need to depart from the traditional approach the Court has used in deciding Indian land claims?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Again, that will be the very question at issue, if the case does come back to the Court. So I can offer no comment beyond recognizing the importance of that precedent, both in terms of the size of the award and the guidelines it laid down for just compensation.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. Moving away from the Indian jurisdictional questions, another question that several lawyers in my State suggested I ask involves wetlands. The Federal Government frequently takes productive farmland out of production and classifies it as a wetland. Wetland determinations facilitate certain environmental and wildlife management objectives. In my view, the application of wetlands regulations, the determination of what does and does not constitute a wetland approaches absurdity at times. However, the definition of what constitutes a wetland is not my concern today. Rather, the Federal Government's designation of wetlands causes farmers in my State to lose income due to the fact that their land has been taken out of production. How do you square the Federal Government's regulation of wetlands with the fifth amendment's prescription against taking private property for public use, without just compensation?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, we know that the Government cannot take, but it can regulate, and the point at which regulation becomes a taking is one of the hottest issues before the Court at the moment. The Supreme Court most recently said in the Lucas (1992) case that if the regulation effectively deprives the owner of the entire value of the land, then even though the law is phrased as a regulation rather than a taking, the owner would be entitled to just compensation. There must be dozens or scores of cases in which litigants are seeking clarification of the line between regulation and taking. I can't offer now anything more than to say I appreciate that the issue is very much alive, and that the most recent decision, the Lucas decision is hardly the be-all-and-end-all. If confronted with such a case, I will do my best to prepare for it diligently and give it my best judgment.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. In the area of small business, employer versus union rights, I know another Senator already has asked about this issue, but I will take it from a slightly different point of view. In the Xidex Corporation case, a 1991 decision, you voted in the 239 majority in a case involving a series of actions taken by Xidex Corp. following its purchase of a new plant that had been a union shop. The union alleged many of these actions constituted unfair labor practices. An administrative law judge in the NLRB agreed with the union on several points, and you enforced their orders against Xidex, as I understand it. In Xidex, the circuit court relied on the holding in NLRB v. Brown, that antiunion motivation will convert an otherwise ordinary business act into an unfair labor practice. Please elaborate on what you understand this standard to mean.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Pressler, may I ask, since the name of that case is not immediately familiar to me-—
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. It is a long name, Microimage Display Division of the Xidex Corporation v. National Labor Relations Board; it is a 1991 case, 924 F. 2d, 245.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I have just asked for some assistance in finding the opinion. It is not one I wrote.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. We can come back to it or you can address it later, if you want to, after you get a chance to look at it.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Thank you.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. I have several followup questions regarding that case involving the relationship between labor and management, particularly in small business, but I will save them and either ask them later or ask them for the record.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Sorry. Even though I have written over 700 decisions, I usually remember the names. But I do not recall Xidex (1991).
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. That is all right. How do you feel about arbitrary caps on damages?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, I think you loaded that question by calling them arbitrary. [Laughter.]
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. That was from one of the lawyers to whom I wrote and asked for questions, so I will only take partial responsibility. Let's just talk caps on damages.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. If the legislature sets a cap on damages, then the matter will come before the courts, and judges will attend to the record, briefs, and arguments that the parties make with respect to it.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. But you can declare them excessive or you can
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I can't express a view on that, apart from the contours of a particular case.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. I guess the most commonly asked question by attorneys in my State is—and you have addressed this to some extent, but to boil it down—does the nominee wish to interpret the Constitution as a static document, or does she wish the Court to initiate creative changes or creative new approaches?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I have said that I associate myself with Justice Cardozo who said our Constitution was made not for the passing hour but for the expanding future. I believe that is what the Founding Fathers intended. My assistants just handed me the case you mentioned. I was on the panel, but the decision was by my colleague, Judge Karen Henderson. In addition to the 700-odd decisions I have written, if I 240 were to review every case in which I was on the panel, I would confront thousands of opinions. I haven't even attempted to do that, and this decision by Judge Henderson is not now in the front of my mind. I will be glad to refresh my recollection and attempt to answer any questions you have about it. But when one is a concurring judge and doesn't do the actual writing, the
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. OK, good. I will ask you about that in a future round of questions, because the small-business community feels that is an important case from their point of view, and there are two or three other questions about it which I will give to you in writing, and I will try to ask them in a later round.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Now that I have the case, I will certainly read it and refresh my recollection.
Senator Larry Pressler (SD)
Senator
(R)
Senator PRESSLER. My time is up.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much. Now, Judge Ginsburg, one of the few things you have not done in your career is serve in an elected capacity. Now you know how we feel when we are debating in the middle of a campaign, after having cast literally 18,000 votes and a press person or an opponent says, "What did you mean when you cast the vote on S. 274 in 1968?" And so we can sympathize with your inability to reiftember every single solitary decision. I am amazed you remember as many as you do. If we remembered that many votes we had cast, we would all be better for it.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I recall that a lawyer once asked me, "But, Judge Ginsburg, in the such-and-such case in which you concurred, footnote 83"—and it really was footnote 83—"said * * *. Are you backing away from footnote 83?" At that moment I decided that I don't concur in footnotes, especially when they get up over 50. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Believe me, I share your concern, your position. Senator Feinstein, thank you for waiting.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you, Mr. Chairman. You have now turned to the equal protection side of the table. We appreciate it very much.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I want to explain, by the way, for all who are watching, if the Senator will yield. The two women on the committee are sitting at the end of the platform. That is not because they are women; it is because they are the most junior members of the Senate on the Democratic side. And so I just want to—I was thinking about that today. As we are going through all this discussion of the equal protection clause and women's rights, as we should, I kept thinking, but they are probably home saying why don't they let the women ask any questions? It is purely because of seniority, a rule that when I arrived here as No. 100 in seniority I thought was horrible, and I now think has merit. [Laughter.]
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Senator FEINSTEIN. Thank you very much, Mr. Chairman. Judge Ginsburg, not only have I found you a scholar, but you have also got incredible stamina. And I might say that one of the special things for me today has been to sit here and watch you, because I am not a lawyer, reduce things to kind of their basic, simple element and explain them so that they were much more easily 241 understood. I think that is a very special teaching talent, and it is very clear to me that you have it. I want to talk to you about four subjects, if I may today. They are guns, choice, capital punishment, and quotas. And I don't know whether I will end up just thrusting and you will parry, but I want to do it as someone whose experience is that of a former mayor of a big city and also as a grandmother. And I am hopeful that we might just have a conversation with a few people listening on the side. Let me begin with the second amendment. I first became concerned about what the second amendment means with respect to guns in 1962 when President Kennedy was assassinated, and then with Martin Luther King and Bobby Kennedy. And then I watched the evolution of serial murders in this country and then the growth of assault weapons and their prevalence on our streets. We said we shared the same age, and on my birthday a gunman walked into a swimming pool and shot at six youngsters. And then I went home on our break, and I went to one of San Francisco's premier office buildings, and someone had just walked in and wounded six, killed eight, and shot himself. Then I picked up a newspaper where a 3-year-old had pulled a loaded assault weapon from under a bed and fired three bullets into his sister. And so I went back to the second amendment, and I read it again, and it said, "A well-regulated Militia"—capital M—"being necessary to the security of a free State"—capital S—"the right of the people to keep and bear Arms"—capital A—"shall not be infringed." And then I understand that in 1939 in a decision called United States v. Miller, the Supreme Court held that the obvious purpose of the second amendment is to protect the viability of the organized State militia. Since Miller, the lower Federal courts unanimously have held that the second amendment protects the people's right to keep and bear arms only in connection with service in the organized militia, today's National Guard. Now, as a mayor, I tried to do something about it through the law, found that the State had preempted the area of licensing, registration, and when we tried possession, the Supreme Court of the State of California said the State also controls the area of possession. This very committee—Senator DeConcini, Senator Metzenbaum—has legislation that aims to deal with assault weapons, and the chairman of this committee, very shortly, has consented to allow there to be a hearing, for which I am very grateful because several victims would like to testify. And so I am somewhat puzzled, and let me ask this question: If the Federal courts, as I believe they have, have unanimously held that the second amendment protects the right of the people to keep and bear arms only in connection with service in the organized militia, today's National Guard, do you agree with this consensus judicial interpretation of the second amendment?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Feinstein, I can say on the second amendment only what I said earlier. The Court has held that it is not incorporated in the 14th amendment; it does not apply to the States. What it means is a controversial question. The last time the 242 Supreme Court spoke to the issue was in 1939. You summarized that decision, and you also summarized the state of law in the lower courts. The matter may well be before the Court again. All I can do is to acknowledge what I understand to be the current case law, that the second amendment is not binding on the States. Given my current situation, it would be inappropriate for me to say anything more than that. I would have to consider, as I have said many times today, the specific case, the record, briefs, and arguments presented. It would be injudicious for me to say anything more than that with respect to the second amendment.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you. Mr. Chairman, my understanding is that a 15-minute rollcall vote has just been called.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Yes, it has. I suggest maybe, Senator, you decide whether it is best to break now in your line of questioning or continue to the next line and then break when we receive the halfway—but it is up to you.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. YOU are not going to recess so we are just going to keep going?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO. I will recess because there are few of us here now, and I will recess so we can all go and come back, because I am anxious to hear what you have to ask as well.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. All right. Maybe it might be appropriate to go and vote and then come back, if that is agreeable with you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. All right. We will recess for the approximately 10 to 12 minutes it takes us to get over there and vote, and then we will come back, OK?
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you. [A short recess was taken.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The hearing will come to order. As I said, Judge, we had two votes. They threatened we may have one more vote. Hopefully it will not occur before we finish the questioning tonight, but we will finish tonight on the first round. The floor is yours, Senator Feinstein.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you, Mr. Chairman. Just to try to pursue that a little bit further, Judge Ginsburg, could you talk at all about the methodology you might apply, what factors you might look at in discussing second amendment cases should Congress, say, pass a ban on assault weapons?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I wish I could, Senator, but all I can tell you is that this is an amendment that has not been looked at by the Supreme Court since 1939. And apart from the specific context, I really can't expound on it. It is an area in which my court has had no business, and one with which I had no acquaintance as a law teacher. So I am not equipped to enlarge my response. If the Court takes a case involving the second amendment, I would proceed with the care that I give to any serious constitutional question.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Fair enough. Let's go on, then, to the next topic. I was very interested in your discussion with Senator Brown, particularly—this is the issue of choice—because you began to touch on the Casey case, and then somehow got a little distracted. If I understand what you are saying—correct me if I am wrong— you are saying that Roe could have been decided on equal protec- 243 tion grounds rather than the fundamental right to privacy. And I think you noted that Struck could have served as a bridge linking reproductive choice to the disadvantageous treatment of women on the basis of their sex. Is that fair so far?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, Senator, except in one respect. I never made it an either/or choice. That has been said in some accounts of my lectures. It is incorrect. I have always said both, that the equal protection strand should join together with the autonomy of decisionmaking strand, so that it wasn't a matter of equal protection or personal autonomy, it was both.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. I see.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I would have had added another underpinning, one I thought was at least as strong, indeed, stronger. But my argument was never equal protection rather than personal autonomy. It was both. I used the Struck case as an example, because it was the first time I fully expressed myself on this subject. I urged that it was a woman's choice either way—her choice to bear or not to bear a child. So the only amendment I would make in what you said is that it was never either/or; it was both.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. SO, in essence, there are two tests out there that could be used. One is equal protection, and the other is the right to privacy. Is that
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I would put it in terms of principles on which the decision could rest rather than tests to apply, but principles.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. One of the underlying principles is the autonomy of the individual, the other is the equal dignity of the woman.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Right. Let's proceed on. Then in 1992, in Planned Parenthood v. Casey, it was enunciated a new test, and as I understood it, the Court upheld various limitations on abortion because they did not unduly burden women seeking such services. And as I heard you earlier, statutes which limit fundamental rights get strict scrutiny by the Court. Statutes which classify on the basis of gender receive heightened or intermediate scrutiny. My question is: Did the Court in Casey explicitly erode the protections previously afforded women under Thornburgh v. American College of Obstetricians'?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I have two responses. One is, as I said before, that heightened scrutiny for sex classifications remains an open question. Justice O'Connor made that clear in the Mississippi University for Women (1982) case. Sex as a suspect classification remains open. It wasn't necessary for the Court to go that far in that case. The Court struck down the gender-based classification. So it is not settled that sex classifications will be subject to a lower degree of scrutiny than limitations on fundamental rights. It is just that the Court has left the question open, and it may some day say more. If you are inquiring about the specific rulings in Thornburgh (1986) as against the rulings in Casey (1992), yes, I think there are respects in which Casey is in tension with Thornburgh. Restrictions rejected in Thornburgh were accepted in Casey. So I must say yes, the two decisions are in tension, and I expect that the tension is going to be resolved sooner or later. Similar issues are likely to 244 come before the Court again, so I can't say more than yes, the two decisions are in tension; that is where we are at the moment.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. YOU said that they are in contention? Would you say that Casey is as reasoned as Thornburghl
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. What I would say is that the two decisions are in tension, not in contention, because to some extent they overlap. These are decisions that are rather dense. I mean this—there are numerous opinions, and it is difficult to work through them all. The one thing I do sense is that this is a matter likely to come up again, so I believe it would be inappropriate for me to say anything more than what I have already acknowledged. There was no majority opinion in the Casey (1992) case. I think that is about what I can say.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you very much. That was a help, and I thank you for that. Let me turn to capital punishment, and let me speak as a Californian. I believe the people of California voted in 1978 overwhelmingly to reinstitute the death penalty. Since that time, there has been a very long delay before its carrying out. It was recently carried out in one case, the case of Robert Alton Harris, which is a rather notorious case, and brings up the whole habeas corpus discussion. I believe Harris had 6 Federal habeas petitions and 10 State habeas petitions. It is my understanding that the delay was due in large part because the ninth circuit took a while to decide. Earlier in these discussions, you discussed the finality versus the fairness of habeas, and I think, if I understood you correctly, you said that you believed, yes, it was right to think that things had to be brought to a logical conclusion within finality. If laws are going to work in this country, they have to have some finality to them. And the older I get, the more clearly I see that. One of the biggest concerns that people have is that justice no longer seems just because it never happens, or it takes a long time for it to happen. You also raised the fairness, which I guess is the competence of counsel issue. Would that be fair to assume?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That's a large part of it, yes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. With over 300 cases on death row, do you have concern that there is a lack of finality, because of Federal habeas review? Could you be more specific at all, when you speak of finality? It is interesting to me, because of the crime bill, major discussion on habeas, what is fair in terms of a wait. Is it 6 months? Is it 1 year? Is it 18 months? The Attorney General testified before us earlier, she said as long as there was competency of counsel, she believed, too, that there had to be finality and, therefore—I am paraphrasing her, but I think I am accurate, and, Mr. Chairman, correct me if you think I am wrong—she said whether it is 6 months or 1 year or 18 months, really is not consequential, as long as there is competency of counsel.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is correct, that is my recollection, as well, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Would you concur in that? 245
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I do not know what her testimony was. I do know that Congress has before it Justice Powell's report, and that the first action to be taken with respect to this fairness/finality balance is going to come from Congress, based on Congress' study of that Powell Commission Report.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. If the Senator will yield to me on that point
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Of course.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN [continuing]. The Judge is absolutely correct. As a matter of fact, I think we will be able to announce in the next day or so that, after literally 5 months—it is going to sound like an exaggeration—of close to around-the-clock negotiations with the Attorneys General and the District Attorneys Association, we have reached a compromise. So I hope with the support of the Senator from California, who has been deeply interested in this issue, we will be able, Judge, to pass a piece of legislation that gives some life to the thrust of the Powell Commission Report.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. The reason I am asking this, as a nonlawyer, a former mayor who has a great deal of interest in the crime bill, as the chairman correctly stated, is because the issue of habeas is so very complicated, and any insight that you might have with respect to both fairness and finality, I would certainly appreciate hearing.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Feinstein, I commented before that I realize this area is very complex. We don't have that kind of review in this district, because, unlike the State of California, the District of Columbia is not a State for this purpose. The District of Columbia has local courts created by Congress, and Congress has provided a postconviction remedy that is just like the Federal remedy, so if you are convicted in the District of Columbia courts, there is no habeas review in our court. If I am confirmed, this is going to be altogether new business for me. I haven't had experience with habeas petitions and I haven't had experience with death cases, either. I know what the history is in California. Your State supreme court held that the death penalty was unconstitutional under the State constitution. That judgment, made in People v. Anderson (1972), was reversed by the people in a referendum, wasn't it?
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. That is correct, in 1978,1 believe.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. But the District doesn't have the kind of StateFederal review that you have proceeding from your State courts to the Federal district courts and the ninth circuit. I know something about what has gone on in the regional circuits. I have not had experience with these cases myself.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you very much. Moving right along to the third topic of the day, to another controversial issue, which is the issue of quotas in affirmative action. Again, let me go back to my mayor's experience. In 1979, there was a Federal case, concerning police officers consent decree, and I was mayor and did not support a consent decree which initially contained quotas, for the very reason that I have seen quotas used to discriminate against, as well as to prevent discrimination, and have never felt that it is a very good vehicle for bringing about affirmative action. 246 Instead, the consent decree that I did support and which became the law of the city was one that provided goals and timetables and a master to oversee the department as it moved along, and we made some very good progress, both with respect to people of color, first minorities, first gays in the San Francisco Police Department. I know you have favored affirmative action, but you nave generally taken a very restrained approach on the subject of quotas in local government hiring and contracting. I was wondering if you would care to comment on your decisions in that area and your judicial philosophy that brought about those decisions.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. My circuit recently decided a set-aside case, the O'Donnell (1992) case. It was the same kind of case as Croson (1989). We followed the Supreme Court's precedent and said that the District of Columbia's plan was invalid. Most plans I have had anything to do with are of the kind that you describe, not fixed, rigid quotas, but goals and timetables, which are really estimates of what the workforce would be, if there were fair employment practices. In so many of these cases, a whole range of items are implicated, including tests. I remember some police cases involving tests, physical tests that women could not pass at the same rate as men, but that were not at all related to job performance. So some of the plans include new tests that are related to what the job requires, and do not include standards, unrelated to job performance, that men can meet more readily than women. I remember one test particularly. The job involved was slide projectionist. As part of the physical test, the applicant had to carry a certain weight with arms raised above his head. That posture was much harder for women than for men, and women failed that portion of the test disproportionately. But the weight that had to be carried was something like 18 to 20 pounds, about the weight of a year-old child. Women have carried that weight from the beginning of time, but not with arms lifted over their heads. Once you eliminate that element of the test, the women begin instantly to pass at least at the same rate as men. Many of these job classifications and tests were set up one way without thinking—with no thought of including women. Eliminating such tests is part of the kind of positive affirmative action that does not entail rigid quotas, but estimates of what one would expect the workforce to look like, if discrimination had not operated to close out certain groups.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Yes, that is certainly true. Of course, even though when the tests were revised for job related strength capacity, it was still difficult for some women, I must say that. There still was a rate where women could not pass it, but many women did and I think that really harkened the day where women could go into police departments and fire departments and have some degree of equal opportunity. We are not entirely there yet, but there has been a big change.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Let me just change to the Japanese internment case, because this also is a major issue where I come from, and I very much appreciated your comment that the Korematsu case was wrongly decided. I would certainly agree with that. 247 With regard to the Hohri v. United States case, it is my understanding that you voted to permit victims of the internment to file claims for confiscation of their property during World War II. Because this might be useful in the future, could you elaborate on why Korematsu was wrongly decided, and why you believe so strongly that the plaintiffs in Hohri should be able to sue long after the internment policy was relegated really I supposed to the dust bin of history?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. In Hohri (1987), our decision was not the final decision. The key question before us concerned the right court in which to bring that case. The Supreme Court, in a well-stated opinion by Justice Powell, held that the case belonged in the Federal circuit and not in the District of Columbia Circuit. Justice Powell's decision, incidentally, said there was a tenable case to be made for either side. Congress had not been clear about whether the case belonged in our court or in the Federal circuit, the specialized Federal appeals court in this city. The question on the merits in Hohri concerned when the statute of limitations began to run. The view my court took of that question was different from the view ultimately taken by the Federal circuit. Korematsu (1944), as presented to the Supreme Court, involved a challenge to a race classification—people of Japanese ancestry— and a defense based on national security. We now know—it came out clearly in the fifties—that the pressing national security need urged before the U.S. Supreme Court didn't exist and never existed. An overwrought general wrote an affidavit that the Court relied on. J. Edgar Hoover, hardly someone who had no concern about national security, had said that there was no reason to have the kind of massive relocation program our country ordered during World War II. The FCC said that the alleged communications between the West Coast and Japanese ships at sea didn't exist, either. The question was at what point in time the clock began to run. When did the people affected have a claim a court would hear. We said the clock began to run when it became clear that there was no national emergency justification for curfews and relocation. Now, the end of the story is that Congress passed legislation providing compensation. Before that there was a congressional declaration recognizing that a wrong had been done. There were two dissents in Korematsu itself. I recall one, the dissenting opinion of Justice Murphy. Every judge, I believe, would like to think he or she would have joined Justice Murphy, had he or she been a member of the Court at that time. But no one can say for sure. History has certainly made it plain that there was nothing like the kind of emergency the Court was told of, nothing that required the kind of treatment to which people were subjected solely on the grounds of their race or ancestry.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you very much. Judge Ginsburg, I just want you to know that, for me, it has been a very great pleasure and privilege to listen to this. You really are a remarkable person. I am also just very proud that you are a woman.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I appreciate your saying that so much. Senator FEINSTEIN. Thank you. 75-97 4 0-94— 9 248
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you very much, Senator Feinstein. Senator Moseley-Braun.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Thank you very much, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Last, but not least.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. YOU know, I think it kind of makes me the most popular person in this room, that I am now starting the last of the questioning for the evening. But it makes it a little difficult, obviously, when you are number 18 in a grueling session such as we have had, and I just want to thank and applaud the Judge for her patience and her deliberate manner. You have been just hanging in there, in spite of the fact that you have been talking all these hours and answering questions all these hours and mental gymnastics with the members of the committee. I want to thank my senior Senator, who I know is only here because he has been so nice to me and he is looking out for me.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I am here because I want to hear Judge Ginsburg.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. YOU want to hear Judge Ginsburg, not me. [Laughter.] OK. You see, that is also why he is the senior Senator. Thank you, Senator Simon, for staying. Judge Ginsburg, as you know, this month the worst deluge in memory has caused massive flooding along the Mississippi and Missouri Rivers and devastated much of the Midwest, including vast areas of my home State of Illinois. This has been a tragedy of epic proportions. One of the most notable developments has been the failure, at several points along the various rivers that were affected, of levees that were denied to hold the waters back. The rupture of these levees has prompted a heated debate among scientists and engineers and environmentalists, farmers and thousands of ordinary citizens. On one side are the people who say that the levees, which were artificially created to begin with, have distorted the Mississippi's natural drainage system, can never be built high enough to anticipate all of nature's fury, and may even make flooding worse by channeling the waters so that they become even faster and higher. Supporters of the levees, on the other hand, claim that through the construction of the levees and other flood control systems, thousands of acres of land have been turned into productive farmland, housing and recreational areas. In short, Judge Ginsburg, across a wide swath of the country, thousands of people and entire communities have made decisions, and invested their savings in some instances, for more than 100 years on where to locate their homes and their farms in reliance on this system of levees. As I mention, though, this year's disaster and some new scientific evidence has prompted many to argue that pulling down the levees or actually not reconstructing them might actually improve flood control and, in terms of the environment, be better for the communities as a whole. In fact, some have speculated that one day in the near future, the Army Corps of Engineers or some other arm of the executive branch may determine that the levees are counterproductive to re- gional flood control efforts and damaging to the environment, and decide to tear the system down, or not to rebuild it. While conceivably beneficial to the region as a whole, such a decision would clearly impact the use that thousands of individual landowners could make of their property. Clearly, in this situation—and the reason I ask this question, Judge, is because you have done so much in the area of administrative law and administrative decisionmaking, and I want to get to how you perceive and approach these issues, when a citizen's interest and rights are up against an arrayed power of the bureaucracy. Clearly, as in a situation such as the levee situation—and it is all speculative, because this is just a debate that is going on—what an administrative agency decides to do or not to do, as the case may be, will matter greatly to the expectations that have been built up over time. So I have two questions. The first is, in a situation like this, if the property owners challenge the government action as a taking of their property, what principles should the Supreme Court look to in evaluating that claim?
Senator Paul Simon (IL)
Senator
(D)
Judge GlNSBURG. Senator, the question has some kinship to the one that Senator Pressler raised about the wetlands. It is an evolving area of the law. There is a clear recognition that at some point a regulation can become a taking. When that point is reached is something to be settled in the future. We do know that, as the Court held in the Lucas (1992) case, when the value of the property is totally destroyed as a result of the regulation, a taking has indeed occurred and there must be compensation for it. Reliance is certainly one of the factors that must be weighed. This is a still evolving area and I can't say any more about it than what is reflected in the most recent precedents, in the Nollan (1987) case and in the Lucas case. But there is sensitivity to the concerns. On the one hand, the regulations are made for the benefit of the community; and on the other hand, there is the expectation, the reliance interest of the private person. Those two considerations will have to be balanced in future cases. I can't say anything more at this point.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Well, let's approach it, and I don't know if this is an approach that will be productive. But looking at the whole issue of deference to agency decisionmaking, if the property owners challenge the Army Corps of Engineers on substantive grounds, what principles do you think should govern how much deference should be given the agency's determination and decisionmaking?
Senator Paul Simon (IL)
Senator
(D)
Judge GlNSBURG. It depends on what the agency is doing. If the agency is construing a law in which Congress has, in effect, delegated to the agency a gap-filling function, that is one thing. If the agency is simply applying a general principle, that is something else. You know we do have a guiding decision called Chevron (1984). That opinion instructs that, when the meaning of a law is uncertain, courts ordinarily should defer—that doesn't mean abdicate—deference means treat with due respect the agency's interpretation of it. 250 Now, that is a rule of construction, of determining what Congress wanted. Congress can say it doesn't want us to defer to the agency. There was a time when the Bumpers amendment had quite a following. That measure would have told courts not to defer. The Supreme Court's current doctrine in this area calls for deference to agency rulemakings. Congress knows that, and Congress is at liberty to change the orders under which courts are now operating. That is, if there is an ambiguity in the direction Congress has given, and the agency reaches a decision that is permissible, a permissible construction of congressional intent, then courts are supposed to respect that decision. But Congress can always tell us to take a different approach to statutory construction.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. In a dissent in which you joined in the case of San Luis Obispo Mothers for Peace y. the United States Nuclear Regulatory Commission, you joined in a dissenting opinion against a decision that upheld the issuance of a license for the construction of a nuclear power plant on an earthquake fault, despite the lack of a hearing on safety implications. That dissent, which was actually written by someone else, stated that: It defies common sense to exclude evidence about the complicating effects on earthquakes at a plant located three miles from an active fault. The majority's preoccupation with probability calculations does not justify the Commission's stubborn refusal to do the obvious. So in that case, the decision flew in the face of doing the obvious, of common sense, and I suppose the question becomes, as we look at the whole issue of, again, due deference: Do you believe that injured parties, that people, should be afforded access to review by the courts, and particularly the Supreme Court, in cases like this in spite of the expert judgment of a bureaucrat regarding agency action?
Senator Paul Simon (IL)
Senator
(D)
Judge GlNSBURG. I said that deference does not mean abdication. A decision I wrote bears some resemblance to the fault case. It involved placing nuclear material in salt domes. Yes, I think it is important that there be review, judicial review, of bureaucratic actions. Bureaucrats don't have to stand for election as you do. Courts are needed to check against bureaucratic arrogance. That is an important role that courts have. On the other hand, agencies do feel beholden to the legislature. That is where they get their money from, and so they are accountable to you as well.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. I think that is a fine answer, Judge, and that is very important because so many agency decisions impact on people's lives, sometimes even more than what we do here in the legislative branch. And it is just important—you mentioned the system of checks and balances. It is so very important to have a court willing to look out for the interests, the concerns of ordinary people in their everyday lives, again, in these situations where the bureaucracy just kind of rolls on and spins along sometimes without regard to the individual interests. I would like to change the subject a little bit because I have several areas in which I would like to ask you questions or explore, and I don't know how much of this is new territory. I have listened to all the testimony, and I know you feel that you have probably 251 answered some of these questions before. But to bring my own perspective to some of these issues that we are all concerned about in terms of how you approach judging, how you approach being a member of the U.S. Supreme Court. I want to change the subject to talk about voting rights for a minute. I was very touched yesterday in your testimony when you mentioned as a child seeing signs in front of a Pennsylvania resort that said "No dogs or Jews allowed." For a moment I would like to share with you my own recollection of what you have, I think, aptly described as American apartheid, which is what we went through. In the summer, when I was little, we used to get sent south every summer to spend the summers on the farm, and we would travel by train. And at that time the South was still openly segregated on the basis of race. In fact, just going over some of these cases, I am reminded of how very recent striking down of some of those barriers has been. But, anyway, we were small, and I was about eight or nine; my little brother was about six or seven. And we stopped at a train station one day, and it was a hot summer day, and we had been traveling for hours with my mother. We were tired and thirsty, and we got into the train station, got off the train, walked to the train station, and there were two different water fountains. One was labeled Whites Only and the other was labeled "Colored." And my mother told us very firmly that she didn't want her children drinking out of a colored water fountain. We both pleaded with her. We were thirsty. We wanted some water. And she wouldn't let us have any water. She said we will just wait until we get to the house. Well, my little brother laid out in the middle of the train station and had a temper tantrum because he wanted some colored water. He expected it was going to be green or blue or yellow or a rainbow of colors. [Laughter.] And he was determined he was going to see and have some colored water that afternoon. We have obviously come a long way in this country since that trip, Judge, and I can share that story with you now. And it is humorous and it is funny. It kind of points to the absurdity of how Jim Crow and how that apartheid operated. But there are other aspects, those aspects of the history of this country that are not so humorous even with the passage of time. I want to call your attention to the troubled history of voting rights specifically in the State of North Carolina. In 1900, an amendment to the North Carolina Constitution barred blacks from voting unless they could prove, among other things, that they were descended from a Confederate soldier. The result of that, of course, was that very few blacks in North Carolina in 1900 were able to vote. Tactics such as these were openly utilized up to and through the enactment of the Voting Rights Act in 1965. Although African Americans comprised 22 percent of North Carolina's population, until 1992 no African American had represented the State in Congress since Reconstruction. 252 As you know, in the recent case of Shaw v. Reno, which we have had some discussion about, the Supreme Court chose to ignore that troubled history. In Shaw, the Supreme Court held that North Carolina's 12th Congressional District—a district, I might add, that was drawn in compliance with guidelines from the previous administration's Department of Justice, the Bush administration's Department of Justice—that that district violated the equal protection rights of the State's white voters. The ruling was issued in spite of the fact that the Court was unable to conclude that any white voter had been actually injured, had suffered any injury by virtue of the drawing of this district. I would like to ask you about the Court's decision in Shaw. It would probably be inappropriate to ask you if you would overrule that decision or how you would decide in any voting rights case that might come before the Court. What I would like to know is whether or not you think the majority's decision in Shaw ignores the very real, the very tragic, and very painful history of voting rights violations, not just in North Carolina but throughout this country?
Senator Paul Simon (IL)
Senator
(D)
Judge GlNSBURG. That is an unfinished case. The Court remanded it, and it may well come back again. So I can't address that case specifically, but I know what you have in mind. I know about the literacy tests that were given to blacks, tests that were different from the tests given to whites. There was an extremely complicated passage given to a black would-be registrant to vote. When the would-be voter looked at the passage he was asked to interpret, he said, "It means black people can't vote in this State." So I appreciate your concern, and I know how recent the change is. I remember going with my husband to an Army camp when he was in the military service. We passed a sign that said—I thought it said, "Jack White's Cafe." But it didn't. It said, "Jack's White Cafe". I had never seen such a sign. I was fully adult, indeed pregnant at the time, so it was not so long ago that such things existed in the United States. I am sensitive to that history. When I spoke about Brown v. Board of Education, earlier today, I mentioned specifically the deprivation of the very basic right to cast one's ballot that existed for so long in the United States for black people.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Judge, I would suggest—I have a map, actually—where are the maps? The Court in the Reno case held that the 12th Congressional District of North Carolina was so bizarrely shaped as to invite an equal protection challenge. Here it is right here. There is no question but that is not exactly a work of art. There is no question but that the district lines were drawn in a way—do you have a copy?
Senator Paul Simon (IL)
Senator
(D)
Judge GlNSBURG. Yes. This is what the Court described as a snake district.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Right. But as we talk about the history, this district was drawn this way in order to achieve the objectives of the Voting Rights Act, which in and of itself was written to overcome the history that you have so eloquently talked about. But in any event, we face a situation in which the history has made it very clear that districts have been bizarrely drawn since— well, I started to say time immemorial, but indeed the very word 253 gerrymander comes from the drawing of a salamander-shaped district by a politician named Gerry almost 100 years ago. And so I would suggest, just to point out, Judge, I have a couple of districts here that are also bizarrely drawn. This is the 3d district in Massachusetts, and this is the—got to turn it the other way. It is upside down. That way, yes. This is the 5th district of New York. And I think anybody would concur that these are similarly bizarrely drawn districts as well, which were drawn in the old-fashioned way; that is to say, with regard to political boundaries and incumbent party interests and because of the power equation in the community. But in this instance, we see the Supreme Court has now decided to, in the Shaw v. Reno case, throw out the history. The Court's decision in the area of voting rights has changed the law altogether. And there has been a lot of discussion today about concern about judge-made law, but, quite frankly, Judge, I guess my question would be: Would you not concur that where we have precedent thrown out in order to invalidate a district drawn consistent with the Voting Rights Act based on the bizarrely shaped rule, which is a new rule as far as I can determine, that ignores the history of why the Voting Rights Act was there to begin with, and in light of the fact that no injury was shown, and in light of the fact that there are other districts throughout the country that are bizarrely drawn, would you not agree that we have in this instance judicial activism of a very real sort?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator, I can't comment on the Shaw (1993) case because, as I said, it is unfinished and it may be back in the Court again. And I would have to see the record, briefs, and arguments made in that very case. I can't prejudge what is going to be the next round in it. I am obliged to give the same answer I have given when that kind of question has been asked before about a case that is still alive, one that can be back before the Court.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. All right. Then let me put the question to you otherwise. Yesterday, when Senator Metzenbaum had asked you about the views of Justices Scalia and Thomas in the Lemon v. Kurtzman test, which is used to judge challenges under the establishment clause of the first amendment, in response to that question you urged caution on the part of judges who wish to tear down established law, stating that, and I quote, It is very easy to tear down, to deconstruct. It is not so easy to construct. I as a general matter would never tear down unless I am sure that I have a better building to replace what is being torn down. Judge Ginsburg, what the majority opinion—and, again, looking at the voting rights cases, we have now seen a deconstruction of a system of legislative redistricting and voting rights enforcement in the United States. That system, while it was not perfect, was an effective system that has been arrived at through the efforts of various Congresses and administrations and even the courts. But in one fell swoop, the Justices struck down this system without providing any guidance on how to reconstruct voting rights enforcement, other than to say you don't go with bizarrely shaped districts. States that relied on the voting rights precedent in drawing legislative districts now find themselves subject to court challenges; 254 and, further, the courts have no guidelines with which to just these challenges. And so I would like to ask you how much consideration do you think that a judge should give—now, this is going to be a real softball, Judge. This is not a—how much consideration do you think that judges should give to difficulties that will arrive from deconstructing an established constitutional test or enforcement mechanism in areas such as voting rights?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I can't speak to this specific case because I am not familiar with the record. The Department of Justice is going to have to study this case and prepare whatever its position is going to be for future cases. But I can repeat what I said before, that a judge should not tear down without having a better building to replace what is in place, and that is a general rule to which most judges would subscribe. I can't say that is true of most law professors, but it certainly is true of most judges. I wish I could speak at a more specific level, but I really can't without having before me the precise record on which I could make an informed judgment.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. I understand, and that is one of the reasons why this particular area is difficult to talk about, because of the uncertainties surrounding that entire area in voting rights enforcement in light of the Shaw decision. But to take it another step and another aspect of voting rights that I would like to pursue with you, another recent voting rights case was Presley v. Etowah, and I would like to talk with you about that case a minute. I would like to first offer a brief summary of the case. The Etowah County Commission had five members, and each of the members' chief function in this rural Alabama county was the allocation of highway construction and repair funds. Each commissioner had complete control over how the funds were used in his district—and I said "his" district and not "his or her" district deliberately. The commission had been structured to ensure that no minorities would be elected. After being sued under the Voting Rights Act, the commission was expanded to six members, six commissioners. Two commissioners were elected under the new changes, including Mr. Presley, the county's first African American commissioner in the modern era. Soon after that election, the four original commissioners passed a resolution which abolished the practice of allocating road funds to individual districts. Under the changes, the two new commissioners had no power at all to ensure that any road funds, even minimal funds, were earmarked for their districts. Now, one does not have to be a legal scholar to understand what happened in this case. In direct response to an African American being elected to the commission, the commission changed the rules in the middle of the game to ensure that the newly elected black official had no real power. Yet when Mr. Presley sued the commission under section 5 of the Voting Rights Act, the Supreme Court held that the acts of the commissioners in stripping him of all real power were not changes with respect to voting. The only explanation the Court gave for its decision there was that "the line must be drawn somewhere." 255 Many people familiar with Presley, including the Bush administration's Justice Department, wondered what was the point of being able to vote for a county road commissioner if as soon as you got that opportunity the commissioner was stripped of any authority over what happens to the roads in your district. I have two questions. The first is: Would you agree that in interpreting the Voting Rights Act, the Court in Presley was overly concerned or more concerned with the language of the statute as opposed to its purpose? And, second, when the narrow interpretation of the language of a statute would hinder the statute's ability to achieve its purpose: Is it proper for a court to look beyond the language in order to offer a remedy to citizens who have a valid grievance?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. That is a decision constructing a statute. If the Court got it wrong, Congress can amend the Voting Rights Act and say that the Court got it wrong. I suppose the view was that the stripping of one commissioner was not peculiar to that commissioner; every commissioner was similarly stripped. That leaves the authority in the hands of the body as a whole, and the body has only one minority member, as I understand it. But the argument was that the Voting Rights Act does not extend so far as to require court approval of how functions are allocated within a governing body. That is the Court's construction of what Congress ordered. The cure can be provided by Congress if Congress thinks the Court got it wrong. And that is about all I can say with respect to that case.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Judge, in this case, Justice Stevens described this case as one in which a few pages of history are more illuminating than volumes of logic and hours of speculation about hypothetical problems. I suppose my question to you is: Other than just waiting—I mean, other than saying, well, the Court may have gotten it wrong here, which is what you have just said, do you see any role in other decisions in suggesting to the Court that the history of these cases is as important in interpreting the specific language?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think the advocates made that point to the Court. I can't opine on that particular case because it wasn't before me. If it had been before me, I would have been familiar with the record, familiar with the arguments. All I know about it at this point is the summary in U.S. Law Week. So I wish I could engage in more of a conversation with you about it, but from the limited information I have, it would not be judicious of me to speak further.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Well, Judge, it appears that the light is on. My chairman has left, but I am left with my loyal and faithful senior Senator from Illinois. I want to thank you. I have other questions that I suppose—I guess the way this works it will hold for the second round of questions. But I do thank you for your responses, and I look forward to pursuing some of these other areas with you. Mr. Chairman, thank you.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON [presiding]. And we thank you, Judge, for a lengthy day. You have served your cause well today. Let me also thank your family members and that crew in back of you there who 256 have had to go through all of this and have done it smiling, even. They may not have felt like it, but that is what they are doing there. The committee will convene tomorrow at 9:45 a.m. for an executive business meeting. When we say "executive," it does not mean it is in closed session here. And then we will proceed immediately to reconvene this hearing at 10 a.m. Our hearing stands adjourned.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Thank you. [Whereupon, at 7:56 p.m., the committee was adjourned, to reconvene at 10 a.m., Thursday, July 22, 1993.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The committee will come to order. Welcome back, Judge.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is a pleasure to see you. I hope you had an opportunity to get a good meal and get a good night's sleep and not have to sit up and worry about more briefing books. We appreciate your willingness to forbear as well as you have. Let me do a little bit of committee business here this morning in terms of how we will proceed, and then make one comment. We have now completed our first round of questioning, and I might add, sounding somewhat presumptuous, that I was impressed by the line of questioning of our friend from Illinois. It was obvious yesterday you are a graduate of the University of Chicago Law School.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I was impressed, and I thank you for being willing, Senator, to stay and go as late as you did last night. But we have now completed our first round of questioning, and as has been the committee tradition—I wouldn't say a tradition— only since I have been the chairman. I am surrounded by two former Chairs who chaired this outfit longer than I, and sometimes I think they still wonder whether or not they should still be chairing this committee. But they were wise enough to choose other pursuits. We have, in the first round of half-hour questioning, allowing a Senator and the nominee to develop a line of questioning without artificial interruption. Now, what we have done in the past is shorten those rounds on the second round, but my friend from Utah, the ranking member, has indicated to me that some Members on his side, and possibly -257 258 on the Democratic side as well, may want to pursue a similarly lengthy line of questioning with the judge. So unless there is a revolt in the committee, this is how I would like to proceed. We will go to 15-minute rounds unless a Senator asks before his or her turn to question that they would like to have a 30-minute round in order to flesh out the line of questioning they wish to pursue because, as I said at the outset, no Senator will be cut off. In other words, it is just going to be a matter of having two 15-minute rounds or one 30-minute round. But no Senator will be cut off. The reason I would like to cut it down to 15 minutes is to allow Senators to be able to have more interchange with their colleagues in the questions rather than having to wait 2 or 3 or 4 hours to get into the mix with a line of questioning that may be followed on from when another Senator has finished questioning. So, in a sense, I hope this procedure will enhance the prospect of a little continuity in the questioning among the Senators. But any Senator who wishes before he or she begins to question that this round be a half-hour, should indicate their wish to the Chair and we will do that. But I would hope we would, most of us, if we can, for the convenience of our colleagues, keep our rounds to 15 minutes. Judge, I will look for a signal from you and/or your husband or whomever behind you to indicate when you would like to take a break, but we will essentially do what we did yesterday. About every hour-and-a-half, we will break and give you a chance to stretch your legs. But anytime you wish to do that, that is not a problem. Now, is that appropriate, Senator Hatch?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I do believe that there are many questions that our side would like to ask, so I am not—this isn't working.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. IS the other mike—we have complete control of this committee. [Laughter.] And we are able to—this is one of the few times, Judge, I am able to turn off the microphone on a Republican.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Senator Simpson says there is a screw loose in the speaker. I am not sure—that is ambiguous, it seems to me, but I know those who believe that, anyway.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NOW, let me make one last point. Over the last few days, Judge, you have many times, at least from my perspective, appeared to be reticent to answer some of our questions, even more so than recent nominees. This, as I indicated, concerns me, and I believe the forum offered by these hearings, I think, is very important. Once confirmed as a Justice, you generally will not appear before the public to answer questions or to discuss your judicial philosophy, and this hearing provides the only opportunity for a public forum to hear the individuals who will make our critical constitutional decisions. So last night I went back and, with my staff, reviewed the transcripts of recent hearings, and I found, quite frankly, to be honest with you, that you provided no less expansive answers than others who have come before the committee, and also no more than others who have come before the committee, of your views on the law and your views on judging. 259 You do have a style that is precise and on occasion seems less expansive when you answer a question, but you have given us some significant substance on issues of privacy and equal protection, freedom of speech, and constitutional methodology. Still, I have to say, like other recent nominees, you have given us less than I would like. I doubt whether any nominee would ever satisfy me in terms of being as expansive about their views as I would like. But on that score, I want to emphasize that you have, as I have gone back and looked at the record, given us some genuine insight and expansive answers on some of the critical issues, maintaining your distinction between what you think is appropriate and inappropriate for a prospective Justice to comment on. But, still, I tell you that on my round of questioning I will return to several subjects which I just mentioned—equal protection, freedom of speech, and constitutional methodology—to see if we can engage just a little bit more. I thank you for what you have done so far, but I hope maybe we can pursue these subjects a little more without violating your understandable and self-imposed limitation about getting involved in matters that may come before the Court and in any way compromise you. But having said that, rather than take my round of questioning now, since the distinguished Senator from Massachusetts is the manager of a bill on the floor on the national service legislation, I will yield my turn to him and then go to Senator Hatch and then back to me.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. As the chairman mentioned, we are considering a national service bill on the floor of the Senate, so I missed part of the responses yesterday, but I will look forward to reviewing the record carefully. I appreciate the courtesy of the Chair now. I am just inquiring really in two areas. During my round on Tuesday, Judge Ginsburg, we talked briefly about the very important role of the Supreme Court in construing civil rights laws, and I would like to return to that topic this morning. As you well know, the effort to pass legislation banning discrimination in public accommodations, employment, voting, and Federal programs was a long and difficult one. Congress tried for many years during the 1950's, with limited success. And it wasn't until 1964 that the landmark civil rights legislation was passed, and the Voting Rights Act, which Senator Moseley-Braun asked you about yesterday, was passed in 1965. It is not hard to understand why it is difficult for a popularly elected legislature to pass laws to protect the rights of minorities and women who have been the victims of discrimination. For too long, legislatures were dominated by those who tolerated that discrimination, and that is why it is particularly important to have on the Supreme Court persons who appreciate the significance of the civil rights laws and will construe them to achieve Congress' purpose of eliminating discrimination. In the 1980's, the Supreme Court turned away from that approach and issued a series of decisions that dramatically cut back on the legal protections against job discrimination: in 1989, in the Patterson v. McLean Credit Union case; we had the Ward's Cove 260 Packing v. Antonio case; and then the AT&T Technologies case, the Lawrence case. I think you are familiar with those cases. A bipartisan majority in the Congress joined together to pass the Civil Rights Act of 1991 to overrule those decisions and several others. So now those cases are dead letters because of the 1991 act, so they can't come before you. My question is: What is your view of the approach to construing civil rights laws taken by the Supreme Court majorities in those cases?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. My view of the civil rights laws conforms to my views concerning statutory interpretation generally; that is, it is the obligation of judges to construe statutes in the way that Congress meant them to be construed. Some statutes, not simply statutes in the civil rights area but those in the antitrust area, are meant to be broad charters—the Sherman Act, for example. The Civil Rights Act states grand principles representing the highest aspirations of our Nation to be a nation that is open and free where all people will have opportunity. And that spirit imbues that law just as free competition is the spirit of the antitrust laws, and the courts construe statutes in accord with the essential meaning that Congress had for passing them.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, we have overturned those decisions now in the Civil Rights Act of 1991. I am asking you whether you are willing to express an opinion about those cases that were overturned since it won't come back up to you and since now we have legislated in those particular cases.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I don't want to attempt here a law review commentary on the Supreme Court's performance in different cases. I think the record of the decisions made in the lower courts can be helpful. In some of the cases, the Supreme Court's position was contrary to the position that had been taken in the lower Federal courts. I believe that was true in the Ward's Cove (1989) case and in the Patterson (1989) case. It is always helpful when Congress responds to a question of statutory interpretation, as it did in this instance, to set the record right about what the legislature meant to convey. Now, sometimes—I spoke of the Pregnancy Discrimination Act and title VII—Congress is less clear than it could have been the first time around. Maybe the ambiguity wasn't apparent until the specific case came up. Congress reacted rather swiftly in that instance and said, "yes/' discrimination on the ground of pregnancy is discrimination on the ground of sex, and title VII henceforth is to be interpreted that way. It is a very healthy exchange. It is part of what I called the dialog. Particularly on questions of statutory interpretation if the Court is not in tune with the will of Congress, Congress should not let the matter sit but should make the necessary correction. That can occur even on a constitutional question. I referred to the Simcha Goldman (1986) case yesterday, a case in which Congress fulfilled the free exercise clause more generously than the Court had. 261 We live in a democracy that has, through the years, been opened progressively to more and more people. The most vital part of the civil rights legislation in the middle 1960's was the voting rights legislation. The history of our country has been marked by an ever widening participation in our democracy. I expressed on the very first day of these hearings my discomfort with the notion that judges should preempt that process to the extent that the spirit of liberty is lost in the hearts of the men and women of this country. That is why I think the voting rights legislation, more than anything else, is so vital in our democracy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In another area, we have certainly made important progress, as you mentioned, in the areas of banning discrimination on the basis of race, we have on gender, we have on religious prejudice, and more recently on disability with the passage of the Americans With Disabilities Act, banning discrimination against persons with disabilities. One form of discrimination still flourishes without any Federal protection, and that is discrimination against gay men and lesbians. I note that in a 1979 speech at a colloquium on legislation for women's rights, you stated that "rank discrimination based on sexual orientation should be deplored." By rank discrimination, I assume you meant intentional discrimination rather than discrimination on the basis of rank in the military. I share that view, and I think most Americans do. I would like to ask you whether you still believe, as you did in 1979, that discrimination based on sexual orientation should be deplored.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think rank discrimination against anyone is against the tradition of the United States and is to be deplored. Rank discrimination is not part of our Nation's culture. Tolerance is, and a generous respect for differences. This country is great because of its accommodation of diversity. The first thing I noticed when I came back to the United States from a prolonged stay in Sweden—and after I was so accustomed to looking at people whose complexion was the same—was the diversity. I took my first ride in several months on a New York subway, and I thought, what a wonderful country we live in; people who are so different in so many ways and yet, for the most part, we get along with each other. The richness of the diversity of this country is a treasure, and it is a constant challenge, too, a challenge to remain tolerant and respectful of one another.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I think we will leave that one there. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. It is not going to get any better, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. My time is up.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. Now I assume my colleague would like half an hour.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yes, I think I would.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I yield half an hour to our distinguished friend from Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, thank you, Mr. Chairman. Judge, just a real quick response, if you can. Are you for or against TV coverage of the Court? I had a number of people in the 262 media who asked me to ask that question. And I don't want to spend a lot of time on it, and if you don't have an opinion, I would be happy to hear that as well.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Hatch, I spoke earlier about the CSPAN interview with me. I thought how unfortunate it was that the audience couldn't view, because we didn't allow it at the time, television of the proceeding itself.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I don't see any problem with having appellate proceedings fully televised. I think it would be good for the public.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I do, too.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. We have open hearings. If coverage is gavel-togavel, I see no problem at all televising proceedings in an appellate court. Some concern has been expressed about televising trials, but we have come a long way from the days of the Sheppard (1966) case when the camera was very intrusive and there was all kinds of equipment in the courtroom that could be distracting. The concern currently is about distortion if editing is not controlled.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I understand. That is good enough for me I would be concerned about the editing that goes on, too. You are saying gavel-to-gavel you are for.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. OK.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes. But I would be very respectful of the views of my colleagues.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Sure. No, no, I understand. In 1975, while you were at the ACLU, that organization adopted a policy statement favoring homosexual rights. According to what has been represented to me as minutes of a meeting on this matter, the following is noted: In the second paragraph of the policy statement dealing with relations between adults and minors, Ruth Bader Ginsburg made a motion to eliminate the sentence reading, "The State has a legitimate interest in controlling sexual behavior between adults and minors by criminal sanctions." She argued that this implied approval of statutory rape statutes, which are of questionable constitutionality. Now, I realize that these events took place over 18 years ago, so let me just ask you: Do you have any doubt that the States have the constitutional authority to enact statutory rape laws to impose criminal sanctions on sexual contact between an adult and a minor, even where the minor allegedly consents?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Not at all, Senator Hatch. What I did have a strong objection to was the sex classification.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Sure.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think child abuse is a deplorable thing, whether it is same sex, opposite sex, male-female, and the State has to draw lines based on age. What I do object to is the vision of the world that supposes a woman is always the victim. So my only objection to that policy was its sex specificity.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO as long as they treat males and females equally, that is your concern? 263
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, and I think that as much as we would not like these things to go on, children are abused, it is among the most deplorable things, and it doesn't
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And the State has power to correct it.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, and has power to draw lines on the basis of age that are inevitably going to be arbitrary at the edge.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I am relieved to hear that that was the basis for your objection. It was a shock to me to learn, you know, that the Constitution, some people argue that the Constitution denies the State the right or the ability to protect young people and teenagers by forbidding sexual contact between them and an adult, even where the sexual contact is supposedly voluntary, and I am concerned about that. Let me just move on to the death penalty. Now, I have a question. One of the problems I had yesterday, you were very specific in talking about abortion, equal rights, and a number of other issues, but you were not very specific on the death penalty. Now, there are people on this committee who are for and against the death penalty, as there are people throughout the Congress, and my question is about the constitutionality of the death penalty. I am not going to ask you your opinion about any specific statute or set of facts to which the death penalty might apply. Also, I recognize that your personal views regarding the morality or utility of capital punishment are not relevant, unless your personal views are so strong that you cannot be impartial or objective. Then that would be a relevant question and a relevant matter for us here today. Rather, I would just like to ask you the following specific question: Do you believe, as Justices Brennan and Marshall did, that the death penalty under all circumstances, even for whatever you would consider to be the most heinous of crimes, is incompatible with the eighth amendment's prohibition against cruel and unusual punishment?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Hatch, let me say first that I appreciate your sensitivity to my position and the line that I have tried to draw.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Sure.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Let me try to answer your question this way.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. At least since 1972 and, if you date it from Furman, even earlier, the Supreme Court, by large majorities, has rejected the position that the death penalty under any and all circumstances is unconstitutional. I recognize that no judge on the Court currently takes the position that the death penalty is unconstitutional under any and all circumstances. All of the Justices on the Court have rejected that view. Many questions left unresolved. They are coming constantly before the Court. At least two are before the Court next year. I can tell you that I do not have a closed mind on this subject. I don't think it would be consistent with the line I have tried to hold to tell you that I will definitely accept or definitely reject any position. I can tell you that I am well aware of the precedent, and I have already expressed my views on the value of precedent. 264
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. But do you agree with all the current sitting members that it is constitutional, it is within the Constitution?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I can tell you I agree that what you have stated is the precedent and clearly has been the precedent since 1976. I must draw the line at that point and hope you will respect what I have tried to tell you—that I am aware of the precedent, and equally aware of the principle of stare decisis.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU see, my question goes a little bit farther than that. I take it that you are not prepared to endorse the Brennan/Marshall approach that it is cruel and unusual punishment under the eighth amendment. But in response to my previous question, you stated that statutory rape laws are constitutional. Yet, you are unwilling to really answer the question or comment on the constitutionality—I am not asking you to interpret the statute, just the Constitution—you are unwilling to comment on the constitutionality or unconstitutionality of the death penalty. The thing I am worried about is that it appears that your willingness to discuss the established principles of constitutional law may depend somewhat on whether your answer might solicit a favorable response from the committee. Now, this is a touchy thing. I don't think anybody is going to vote against you, one way or the other, on this issue, at least I hope not, because I don't think we should politicize the Court. But it is important. For instance, the death penalty is, in effect, mentioned in the 5th amendment and the 14th amendment to the Constitution. The fifth amendment makes reference to a capital crime, stating that no one could be held to answer for such a crime unless pursuant to a grand jury. And this presupposes the constitutionality of the death penalty. Now, the eighth amendment's bar on cruel and unusual punishments was adopted at the same time as the fifth amendment, as you know. And it obviously was intended to be read in conjunction with the fifth amendment's express approval of the death penalty. As well, the Supreme Court has affirmed the death penalty's constitutionality, as you said, as early as 1976 in the case of Gregg v. Georgia. Given the express constitutional provisions, presupposing the constitutionality of the death penalty and the body of case law reaffirming its constitutionality, I think you ought to tell us where you really come down on this thing. Because I am not asking you to decide a future case. I am just asking is it in the Constitution, is it constitutional, or is there room to take the position that Brennan and Marshall did, even though it is expressly mentioned in at least the 5th and the 14th amendment, and probably six or seven places in the Constitution, that they find it barred by the cruel and unusual punishment clause of the 8th amendment.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Hatch, I have tried to be totally candid with this committee.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. You have. You have.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. You asked a question. I was asked a lot about abortion yesterday. I can't
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU were very forthright in talking about that.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I have written about it, I have spoken about it as a teacher since the middle seventies. You know that teaching 265 and appellate judging are more alike than any two ways of working at the law. I tried to be scholarly in my approach to the question then. I have written about it in law review articles. I authored a dissert in that area in the DKT case. The question you raised about age lines, I had a stated objection to drawing lines between males and females based on age, whether it is for beer drinking, for statutory rape, for—the first time I encountered an age line I think was in your State, Senator Hatch. Utah required parents to support a boy until age 21, but a girl only until age 18. The case was Stanton v. Stanton (1975).
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I remember the case, but I can't remember whether it is from Utah.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. In any event, that's the way it was. It was support a boy until 21 and a girl until 18, and that age line was struck down. So that is another area. Is the Stanton case not from Utah?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yes, it is.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The death penalty is an area that I have never written about.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. But you have taught constitutional law in this country.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I have.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It isn't a tough question. I mean I am not asking
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. You asked me what was in the fifth amendment.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The fifth amendment uses the word "capital." I responded when you asked me what is the state of current precedent. But if you want me to take a pledge that there is one position I am not going to take
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I don't want you to take a pledge.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG [continuing]. That is what you must not ask a judge to do.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. But that is not what I asked you. I asked you is it in the Constitution, is it constitutional?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I can tell you that the fifth amendment reads no person shall be held to answer for a capital or otherwise infamous crime, unless and the rest. But I am not going to say to this committee that I will reject a position out of hand in a case as to which I have never expressed an opinion. I have never ruled on a death penalty case. I have never written about it, I have never spoken about it in the classroom. I can tell you that I have only one passion and it is to be a good judge, to judge fairly. But I must avoid giving any forecast or hint about how I might decide a question I have not yet addressed.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I will accept that, but I have to say that
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Would the Senator yield?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yes.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. AS I recall, with all due respect, I believe that Clarence Thomas was asked
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Both Souter and Thomas answered that question very
Senator William Cohen (ME)
Senator
(R)
Senator COHEN [continuing]. Was asked the question whether he had ever had a discussion about the case of Roe v. Wade, and he 266 was ridiculed by many members, and indeed the press at large for saying he had never had a conversation.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO, he didn't say that. What he said was—and the press, even as late as this morning, one of our eminent press people criticized obliquely Thomas for having never discussed abortion. What Thomas said was—and I will be honest with you, he did it to get off the subject, Senator Leahy was asking the question— he said "yes>" we did discuss it, but we were more interested in Griswold v. Connecticut. That is basically what he said. Then Senator Leahy came back, "Yes, but did you ever discuss Roe v. Wade1 ?" And Thomas responded, I think very cleverly, and Senator Leahy did get off the subject, he said, "I never debated it." Now, that is a far cry from saying I never discussed it. Now, the reason I am asking this question is there are very few—give me a break, the fact of the matter—give Justice Thomas a break, not you, Judge, but the media out there—they have been misquoting that for years, ever since the hearings. But he was vilified all over this country and slandered and libeled and criticized, because he never discussed Roe v. Wade, as though that is the paramount prime issue in our society. And it is one of them, no question about it, regardless of what side you are on or whether you are not on any side. But I cannot imagine any particular subject that has been more on the minds of the American people in criminal law through the years than the death penalty. Let me just say this: I will take your answer the way it has been given. You know, there are some who believe that there has been an evolution of standards regarding what constitutes cruel and unusual punishment. But even this theory cannot escape the express references in the Constitution to capital punishment. It seems to me that any evolution to societal standards with respect to the death penalty cannot be divorced from the fact that the Constitution mentions capital crimes. And such an evolution of standards by society which would deem the death penalty cruel and unusual punishment or cruel and unusual I think would have to be represented in the form of a constitutional amendment or by repeal of the existing death penalty statutes. Having said that, I just feel it is an important issue and one that—I don't want a political answer.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Could I respectfully point out to my colleague
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. On your own time, you can.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. On my time. I don't wish to interrupt him, but this same issue was before us in 1987 when Judge Kennedy was up for confirmation, and at that time Judge Kennedy stated, "I have taken a position with your colleagues on the committee that the constitutionality of the death penalty has not come to my attention as an appellate judge and that I will not take a position on it. If it is found constitutional, I think it should be efficiently enforced."
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Fine.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. So this is not the first time that we have had a nominee who has declined to respond on this. 267
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO, but as we defined further, demanding of members of this committee during the Souter and Thomas hearings, they had to answer that question. That is all I am saying. Now, I am going to let it go, because I respect the Judge and I have a great deal of fondness and appreciation for her. But I don't think that is a tough question, is it in the Constitution, is it constitutional.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator, I have read that sentence and know there is another reference to "capital," as well. I am glad you respect my position. I have told you my view of judging. There are other people on this committee who would like to pin me down to what am I going to do in the next case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I am not one of them.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Even Senator Metzenbaum wants me to say whether I would be with three or with two on some issues, and I wouldn't answer. I have tried to be consistent in saying I believe in this process, I have written about it, and I have said how important I think the Senate role is. I also said I hope that we come to this with mutual understanding. One of the things Senator Metzenbaum said was that Congress should be more thoughtful and more deliberate about the role of a judge. So I have tried to be as forthcoming as I can, while still preserving my full and independent judgment.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I understand, Judge, and I accept that. I do think, though, that some of the cheap shots in the media about Thomas ought to cease and they ought to read the doggone transcript before they make any more of them. As late as today, one of our learned members of the journalism community misrepresented again. Let me move on to something else. I would like to followup on some of the exchanges you had with Senators Simpson and Leahy regarding government funding. Now, you agree, as I understand it, that the first amendment does not impose on government an affirmative duty to fund speech, is that right?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, I think it imposes on government a duty to be impartial, and so I said if it chooses to fund political speech, it can't choose between the Republicans and the Democrats.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Right. Rather, it prohibits government from censoring or interfering with individual expression, and I believe that is your position as you have said. For example, freedom of speech doesn't mean that the Government has to finance a lecture series for anyone who wants to speak his or her mind, or that the Government must give people megaphones or loudspeakers or, likewise, freedom of the press does not mean that the Government has to buy publishing equipment for aspiring journalists. But in a recent concurring opinion, you wrote, the Government taxing and spending decisions "are most troublesome and in greatest need of justification, when distinctions are drawn based on the point of view a speaker espouses, or when a benefit is provided contingent and an individual is relinquishing a civil right." Now, that was the case ofFEC v. International Funding Institute in 1992. I would like to probe just one aspect of that statement, specifically, your apparent view that government spending decisions are most troublesome and in greatest need of justification, when distinctions are drawn based on the point of view a speaker espouses. Let's assume that the Government decides that not smoking is better than smoking and that it subsidizes an antismoking campaign through a grant program. May the Government give grants only to those who adhere to the antismoking campaign or viewpoint, or does the Constitution compel the Government to also subsidize prosmoking campaigns by cigarette manufacturers?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I may get myself into difficulty with the Senators from tobacco States, and I am a reformed sinner in that respect myself. But this is a question of safety and health. I think the Government can fund antismoking campaigns and is not required equally to fund people who want to put their health and the health of others at risk. So my answer to that question is "yes," the Government can fund stop smoking campaigns and it doesn't have to fund smoking is intoxicating and fun campaigns. Yes, the Government can fund programs for the safety and health of the community.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Congress, as you know, has established a National Endowment for Democracy, and, you know, some might say is engaging in unlawful viewpoint discrimination unless it also establishes a national endowment for the opposite side, say communism or fascism or something like that. The point that I am making is that I respectfully submit that your statement in your concurring opinion in the International Funding case may be overbroad. Government-funded programs are designed to serve certain policy goals. Those speakers who choose not to promote these goals will naturally be excluded from the funding. And to impose viewpoint neutrality on government funding programs simply because they happen to involve speech would be to revolutionize government as we know it. And just as the taxpayers need not subsidize the first amendment right of free speech, the issue then arises do they need to subsidize abortions. Just as government programs may fund antismoking speech without funding prosmoking speech, the Government Medicaid Program may cover the expenses of childbirth, without covering the expenses of abortion. The Supreme Court, as you know, settled this question in its 1977 ruling in Maker v. Roe, and then in its 1980 ruling in Harris v. McRae. It ruled in those cases that the taxpayers do not have to federally subsidize abortion. In some of your academic and advocacy writings before you took the bench, you did criticize those Supreme Court cases and, as an advocate, that is easy to understand. But in the International Funding case, you cited Harris v. McRae favorably in support of a distinction you drew between funding restrictions that are permissible and those that are not. Irrespective of your views on the policy of abortion funding, do you agree that Maker and Harris, those two cases, were decided correctly?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I agree that those cases are the Supreme Court's precedent. I have no agenda to displace them, and that is about all I can say. I did express my views on the policy at stake, but the people have not elected me to vote on that policy. 269
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I understand, but yesterday you endorsed the socalled constitutional right to abortion, a right which many, including myself, think was created out of thin air by the Court.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. But you asked me the question in relation to the Supreme Court's precedent, and you have just asked me another question about the Supreme Court's precedent. The Supreme Court's precedent is that access to abortion is part of the liberty guaranteed by the 14th amendment.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That was just reaffirmed by a 5-to-4 decision just a year ago, and this issue is going to be before the Court for a long time in the future. But today, having opened the door on specific issues such as abortion
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think your microphone is off again, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am sitting back and not
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Madam Chairman. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I have got to speak louder, I think, when I sit back in my chair.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Will the Senator yield? It is obvious, Professor, you have been a professor for a long time, I think it is an endearing quality.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think what the question is that I am asking is do taxpayers, in your view, have a constitutional obligation or duty to fund abortions.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Taxpayers don't have an obligation or duty to do anything other than what Congress tells them they must do. I know there is a taxpayers' protest movement, but people have to pay their taxes, and you decide what their tax payments should fund, as you are engaged in doing at this very moment.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I understand.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The only point I tried to make is that, of all the distinctions in the speech area, the ones we are most nervous about are distinctions based on viewpoint. As I said, the Government decides how it wants to spend its money. I think we would all agree that if the Government pays for Republican speech but not Democratic speech, that is not democratic.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I would agree with that. Let me move on to another issue. In your response to the committee questionnaire on judicial activism, you stated, It is a reality that individuals and groups reflecting virtually every position on the political spectrum have sometimes attacked the Federal judiciary, not because judges arrogated authority but because particular decisions came out, in the critics' judgment, the wrong way. Judge Ginsburg, in the 1857 case of Dred Scott v. Sanford, the Supreme Court ruled that the fifth amendment's due process clause prevented Congress from outlawing slavery in the territories. In essence, in its first use of what we now call substantive due process, the Court invented out of thin air a right to own slaves in the territories. Abraham Lincoln, among others, was highly critical of this holding in the Dred Scott case. Now, do you think that the Supreme Court arrogated authority in this holding in the Dred Scott case? And if so, why? And if not, why not? 270
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think it was an entirely wrong decision when it was rendered. The notion that one person could hold another person as his or her property is just beyond the pale of
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO they arrogated authority to themselves in that case.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think they made a dreadfully wrong decision.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU and I agree. The same thing in the Lochner era, with the Lochner v. New York case. The Court arrogated its own authority to decide that minimum wage laws were really on the basis of liberty of contract. They invalidated State laws on minimum and maximum hours that bakery workers could work in a week.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The Court in the 1930's rejected the so-called Lochner line. The Court, in that line of decisions consistently overturned economic and social legislation passed by the States and even by the Federal Government. That era, in which the Court attempted to curtail economic and social legislation, is over. Although there may be some voices for a return of that kind of judicial activism, I think it is generally recognized that the guardian of our economic and social rights must be the legislatures, State and Federal.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I agree with you on that, but how do you distinguish as a matter of principle between the substantive due process right of privacy that the Supreme Court has developed in recent decades from the rights the Supreme Court developed on its own accord in Dred Scott v. Sanford and the Lochner v. New York case?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I don't think, Senator Hatch, that it is a recent development. I think it started decades ago, as I tried to explain in one of the briefs you have, one of the briefs that I referred to yesterday, Struck.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It started in the 19th century. The Court then said no right is held more sacred or is more carefully guarded by the common law. It grew from our tradition, and the right of every individual to the control of his person. The line of decisions continued through Skinner v. Oklahoma (1942), which recognized the right to have offspring as a basic human right. I have said to this committee that the finest expression of that idea of individual autonomy and personhood, and of the obligation of the State to leave people alone to make basic decisions about their personal life, Justice Harlan's dissenting opinion in Poe v. Ullman (1961).
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. After Poe v. Ullman, I think the most eloquent statement of it, recognizing that it has difficulties—and it certainly does—is by Justice Powell in Moore v. City of East Cleveland (1977), the case concerning the grandmother who wanted to live with her grandson. Those two cases more than any others—Poe v. Ullman, which was the forerunner of the Griswold (1965) case, and Moore v. City of East Cleveland—explain the concept far better than I can.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, you are doing a good job, but in my view it is impossible, as a matter of principle, to distinguish Dred Scott v. Sanford and the Lochner cases from the Court's substantive due process/privacy cases like Roe v. Wade. The methodology is the 271 same; the difference is only in the results, which hinge on the personal subjective values of the judge deciding the case.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. In one case the Court was affirming the right of one man to hold another man in bondage. In the other line of cases, the Court is affirming the right of the individual to be free. So I do see a sharp distinction between the two lines.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think substantively there may be, but the fact of the matter is it is the same type of judicial reasoning without the constitutional underpinnings. Now, one of the things I admired about your criticism of Roe v. Wade is at least you would put a constitutional underpinning under it by using the equal protection clause rather than just conjure something out of thin air to justify what was done. And at least that would be a constitutional approach toward it. See, one criticism of judicially invented rights like some call privacy is the inability in any principled fashion to determine their boundaries. In other words, whether or not such a right will be recognized in a particular context depends upon the predilection of the judge deciding the case. And some of the most vocal supporters of the right to privacy in the context of abortion would be the first to object if the Supreme Court employed the same methodology looking outside the text of the Constitution to protect economic rights, say to cut back on the liberal welfare state. There would be just as much objection to that. Now, one can favor various privacy interests as a matter of policy and support legislation to protect them—and that is being done here—and still recognize the illegitimacy of judges making up rights that aren't found in the Constitution. Don't you agree with that statement?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Hatch, I agree with the Moore v. City of East Cleveland statement of Justice Powell. He repeats the history to which you have referred, the history of the Lochner era, and says that history "demonstrates there is reason for concern lest judicial intervention become the predilections of those who happen at the moment to be members of the Court." I know that is what your concern is.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is what my concern is, as it should be.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. He goes on to say that history "counsels caution and restraint," and I agree with that. He then says, "but it does not counsel abandonment," abandonment of the notion that people have a right to make certain fundamental decisions about their lives without interference from the State. And what he next says is, history "doesn't counsel abandonment, nor does it require what the city is urging here"—cutting off the family right at the first boundary, which is the nuclear family. He rejects that. In taking the position I have in all of my writings on this subject, I must associate myself with Justice Powell's satements; otherwise, I could not have written what I did. So I
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU mean with the position of Justice Powell?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The position I have stated here. You asked me how I justify saying that Roe (1973) has two underpinnings, the equal dignity of the woman idea, and the personhood idea of individual autonomy and decisionmaking. I point to those two decision opinions as supplying the essential underpinning. 272
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I understand, but at least—see, I differ with you on using the 14th amendment to justify it. But at least you found some constitutional underpinning. You would have written the opinion so that at least there was a constitutional argument for the right as you believe in it. And that I respect, even if I do disagree with you on it. But, you know, some people would argue that the constitutional right to contract is a fundamental right as well and that that right can be interfered with just as much through substantive due process as anything else. But in your view, does the generalized constitutional right to privacy encompass, say, the following activities—because judges could decide this on their own because of their own predilections. If they use a theory of substantive due process, whatever they want to decide, regardless of what the language says, regardless of the Constitution or the statutes or anything else enacted by those elected to enact them say.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Hatch, I believe that it is healthy for an academic or a judge to be exposed to criticism. You know that my position, the position that I developed in this, I thought, sleeper of a lecture, has been criticized from all sides. I have been criticized for saying that legislators have any role in this. I have been criticized for saying that the Court should not have solved it all in one fell swoop. So I appreciate that I am never going to please all of the people all of the time on this issue. I can only try to say what my position is and be as open about it as I can.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU have been, and I agree with that. As you know, I admire you personally. But this is more important.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Mr. Chairman, Mr. Vice Chairman, I would like, on a point of personal privilege
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Sure.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. This line of questioning I find to be personally offensive, and I am very sorry to break the train of thought and the demeanor of this committee. But I find it very difficult to sit here as the only descendent of a slave in this committee, in this body, and hear a defense, even an intellectual argument, that would suggest that there is a rationale, an intellectual rationale, a legal rationale, for slavery that can be discussed in this chamber at this time
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, Senator, Senator, that is
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Well, no, Senator, you just
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [continuing]. Not what I said.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. YOU just a moment ago said that some would say that there was a constitutional right to contract which could not be impaired by a judicial decision.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That has nothing to do with Dred Scott v. Sanford.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. That was your statement, though, Senator, and ISenator HATCH. Well, if I canSenator MOSELEY-BRAUN. I just submit, Senator Hatch—and we have had a very fine relationship
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Oh, we do.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN [continuing]. Since I have been here, and I have every respect for your intellect. I have every respect for 273 your judgment. We may disagree on issues, but we have never had occasion to be disagreeable. And I think, as a point of personal privilege, it is very difficult for me to sit here and even to quietly listen to a debate that would analogize Dred Scott and Roe v. Wade. It is very, very difficult for me to listen to
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, that is not what I am doing, so——
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN [continuing]. And so I want just to give you my own sensitivity on this issue. That is why I asked as a point of personal privilege that if there are questions going to the current state of the law that are not as offensive that would elicit the same kind of responses, or if there is some other way that you can probe the judge's opinions on this area, I would very much, on a personal level, appreciate that you take another approach.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, thank you, but just to make that clear— then I would like to conclude, and I would appreciate taking a little additional time. I have been attacking both of those cases and the line of cases, both the Dred Scott v. Sanford case—there is no way that anybody—I don't think anybody should misconstrue what I am saying. I thought the Dred Scott case is the all-time worst case in the history of the country. I think there are others that are bad, but nothing that even approaches the offensiveness of that case. If the Senator has misconstrued what I am saying—and I think you have—I apologize. But that isn't what I was saying. Also Lochner, I think that is a ridiculous case. My whole point here is these are ridiculous cases and that they were conjured out of thin air by this role of substantive due process. Now, whether I agree or disagree with Roe v. Wade, I still think that approach toward judging is wrong. There is no question you could have found constitutional underpinnings to have righted both of those wrongs in those two cases. But nobody should misconstrue what I am saying here into thinking that I am trying to find some justification for slavery. My gosh, I wouldn't do that under any circumstances. So I certainly apologize if I haven't made myself clear, but I am attacking this whole area of substantive due process which attacks Dred Scott v. Sanford, where judges just conjure things out of thin air to justify their own predilections or their own ideas of what the law ought to be. So in that sense, I would certainly never offend my dear friend—and we are good friends, and we work closely together, and I think we are going to do a lot of things around here together. But I want to make that clear.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Thank you. I
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Nor do I support Lochner because I raised the issue—and that was in the context of Lochner—that there is a right of contract mentioned in the law that is very, very important, that some people think is fundamental. Lochner went way beyond that by denying that the States had any rights to do what was in the general welfare of the people. And I disagree with Lochner, and I decry both of those cases. Now, let me just finish. Judge
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN. Again—and I am delighted with your statement, but let me just say that as part of the debate, as part of the intellectual argument that you were engaging in with the judge, you come back—you, in fact, did come back and say to her, 274 well, there are some who would defend the right of contract in this situation. And I am just saying to you that even listening to this debate is very difficult to me, and on a point of personal privilege
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I understand.
Senator Carol Moseley Braun (IL)
Senator
(D)
Senator MOSELEY-BRAUN [continuing]. If there is another way that you can approach the criticism of judicial activism, I would appreciate your taking it.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, if you construed that to mean go back to Sanford, that is wrong because that certainly wasn't meant. And I apologize if I was inarticulate in what I was saying, but I don't think I was. But let me just point out how important this is. When we have the right in judges to just throw substantive due process or just decide cases based upon their own ideas of what is right and wrong rather than what is in the Constitution or is in the statute, we run into these difficulties. You know, with regard to the generalized constitutional right to privacy, does it encompass the following activities or does it not? Let me just give you one illustration. Some people believe in a right to privacy that would allow almost anything, say prostitution. Let me note that in 1974, in a report to the U.S. Civil Rights Commission, you wrote, Judge, "Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions." That is in "The Legal Status of Women Under Federal Law" in 1972, I believe. You were citing Griswold, Eisenstadt, and Roe v. Wade. You could push it farther. How about marijuana use in one's own home? Is that a right to privacy that we should
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I said "arguably." I said it has been argued
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I know. You were making an academic point. I understand. I am not trying to indicate that you were justifying prostitution. But the point is some people believe this right of privacy is so broad you can almost justify anything. Does it justify marijuana use in one's own home? Does it justify physician-assisted suicide? Does it justify euthanasia? Does it justify homosexual marriage that some people think should happen and shouldn't happen? Does it justify infanticide of newborn children with birth defects? I use these examples in this hearing not to offer my own views on any of these subjects, on whether or not they should be protected conduct, but it is my point that people who believe that such conduct should be protected must, under the functioning of our system, turn to the legislatures and not to the Federal courts to determine whether or not they should be protected. The point is that under an amorphous constitutional right of privacy, whether or not conduct is protected does not depend on any neutral principle of adjudication, but on the subjective predilection of the judge deciding the case. And that is not the rule of law. That is government by judiciary. Let me just end by saying that with regard to the chairman's discussion yesterday or the day before of Dred Scott, the chairman stated that he wishes that the Dred Scott Court had moved ahead of the times to engage in progressive judicial activism—at least 275 that is the way I interpreted it—rather than the reactionary judicial activism that it did engage in. And I would simply like to point out that judicial restraint would have led the Court to uphold the Missouri Compromise. There was no need for and no justification for judicial activism of any stripe. And rather than moving ahead of the country, the Court need only have recognized the validity of the law passed 37 years before its decision. And had it done so, we wouldn't have had a substantive due process case or the disastrous result that Dred Scott v. Sanford really was. The broader lesson, of course, is that there is no principled basis for obtaining only the judicial activist results that one likes as a judge. And to approve of substantive due process, which is nothing more than a contradiction in terms to me, is to accept Dred Scott and the Lochner line of cases. And more generally, the Constitution is suited to a changing society, not because its provisions can be made to mean whatever activist judges want them to mean, but because it leaves to the State legislatures and the Congress primary authority to adapt laws to changing circumstances. Well, you could go on and on, but this is an important issue. And I know that you understand it, and I just want you to think about it because if we get to the point where judges just do whatever they want to do and they ignore the statutes or the Constitution and the laws as they are written and as they were originally meant to be interpreted, then we wind up with no rule of law at all. And that is the point that I am making. And I admit there are some fine lines where it is very difficult to draw the line between when a judge is actively trying to resolve a problem and when the judge is just doing it on their own volition. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you, Senator. The Senator did—and I will accommodate other Senators, as well—did go close to 50 minutes, but there was as continuous line of questioning, and hopefully it means the next round will be a lot shorter. We are about to have a vote, Judge, but I will start my questions. We will probably end up with a break here anywhere from 3 to 5 minutes into the questioning, and then I will resume it. We sometimes make statements over our long careers in the Senate that we either wish we didn't make or, although proud of having made them, we are reminded of them at times. I am about to engage in that. Senator Hatch, when Judge Souter was before us, and some were pressing Justice Souter for a specific answer on an issue like the death penalty, said: Judge Souter, I hope you will stand your ground, when you sincerely believe you are being asked for answers which you clearly cannot provide and have the good faith to be able to act as a Supreme Court Justice later. The Senate will not probe into the particular views of a nominee on a particular issue or public policy, let alone impose direct or indirect litmus tests on specific issues or cases. If it does, the Senate impinges upon the independence of the judiciary. It politicizes the judging function. The confirmation process becomes a means of influencing outcome. Now, I am sure having read that, I will have statements that I made during the process read back to me. But I do think it is appropriate to point out, Judge, that you not only have a right to choose what you will answer and not answer, but in my view you 276 should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms, probably, over your tenure on the Court. So, I just want to inject what we never have in politics—consistency. Then again, if we were consistent, it would be very dull. Let me move on. As a matter of fact, I have just been told the vote—and I want to make sure my colleague from Illinois knows it this time, I told her there is a vote—the vote has just begun, and so I think this is an appropriate time to break. I will come back with my round of questions. It will probably take us, as you have probably observed by now, Judge, somewhere between 10 and 15 minutes to get over and vote and come back. So we will recess for whatever time it takes to get to the floor and back.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Thank you. [A short recess was taken.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. The committee will come to order. Welcome back, Judge. I started to say in another context, when you talk about the Madison lecture, welcome to the club of realizing that nothing you say will ever fully satisfy everyone. But now you are in a new arena, where nothing you say will satisfy the same person twice, even if you say the same thing twice. I find the press fascinating and I love them, and this will get their attention. When a former Justice was before us, I asked a number of tedious questions about natural law, because this particular Justice has written a great deal on natural law, all the press wrote articles about how tedious and boring it was. After he got on the Court, one of the leading newspapers in America ran a long article about why didn't we ask more about natural law. Part of the problem is the press is like us, they sometimes don't understand the substance of issues. So the good news is your nomination has not been controversial. The bad news is that if it is not controversial, then we will discuss other things. I just want to point out that I am flattered that the press noticed I comb my hair a different way, which is a major issue these days. I would be happy to have a press conference on that and give you all advice later on how to do that, if you would like. But it is a fascinating undertaking, and so I can assure you that when you finish, as brilliant as you are, you will not be satisfying to anyone all the time, let alone all the people all the time. But I think you are doing a brilliant job. Let me point out—and my colleague is, as we say in this business, necessarily absent as I speak. As a matter of fact, I can see him at this moment being interviewed. So I am not going to take the time to wait until he returns to make the statement I am about to make, although I say this not as a criticism to him. I would indicate that, historically, I think you have laid out very clearly from the outset the basis upon which the right of privacy has been found to exist under our Constitution. Because the first question you answered, you talked about the liberty clause; you talked about the ninth amendment; you talked about the common law and the common-law traditions. 277 I would point out to my colleague that there has, in fact, with a notable aberration period in our history, always been a distinction in the common law, as well as constitutional interpretation, between the degree of protection and the wide berth that matters relating to personal privacy and property have been treated, especially the last 50 years. There have been distinctions historically made in terms of how the Court approaches the degree of protection warranted in those areas, and in terms of how and under what circumstances government can interfere with either of those rights, one's personal private rights and one's property rights. I would like to pursue a little bit—I didn't intend on going in quite this direction, but in light of the line of questioning, which I think was appropriate, the line of questioning of my colleagues just had—I would like to discuss with you the issue of unenumerated rights, particularly the right to privacy. The right to privacy recognized by the Court includes such things, as you have mentioned, as the right to marry free from government interference. And in response to one of the best columnists in the country who says we repeat things all the time, part of the reason we repeat things all the time is an attempt to educate people a little bit. Most Americans, I have found in surveys, if you ask them if I can marry whom I want, they will say "yes". If you say what right do you have for that, they say the Constitution guarantees it. Nowhere in the Constitution is the word "marry" mentioned; nowhere in the Constitution is the right to marry mentioned. There is nowhere in the Constitution where the right of a married couple to use birth control is mentioned, but Americans think that it is.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Are you arguing that a brother has a right to marry a sister?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO, I am arguing that the right to marriage is one that is a right of privacy that most Americans think is constitutionally guaranteed, and only under exceptional circumstances can the State interfere with your choice of who you want to marry. They have to be able to prove there is some overwhelming reason for their interfering with your right to marry. That is why they call it a fundamental right. Now, that test has been met in the minds of the courts, when you say I wish to marry my brother or my sister. There is an overwhelming reason why the State can prohibit that, an overwhelming State interest. But it is a fundamental right, and most Americans think it is written into the Constitution. Most Americans think, as they should, that that is something that is a fundamental right. Just like what happened—and I will get back to this, Senator, in light of the understandable interruption—when the States used to come along and say, hey, white folks can't marry black folks. The Court went, wait a minute, what's the rationale for that? Why can't white folks marry black folks or black folks marry white folks—the so-called antimiscegenation laws. The Court said, hey, wait a minute, that doesn't make any sense. I am confusing a little bit right to privacy and some of these issues, but I don't want to—in a generic sense, the answer to your question, Senator, is they have to have an overwhelming reason to interfere with certain of our rights of privacy. 278 So the right to make decisions about how to raise and educate one's children free from government interference has been recognized by the courts. You told Senator Leahy, Judge, that there is a constitutional right to privacy. I think that is what you said to him, which you described as "the right to make basic decisions about one's life course"—well stated, well articulated, and similarly articulated by other Justices whose ranks you are about to join. But I was as little unsure from your answer to Senator Leahy's question about how strong you thought that right of privacy was. The Supreme Court has recognized these rights about marriage, child rearing, and family, and when they have, they have generally referred to them—and I think in all those three areas—as fundamental rights. As you and I both know, when the Court uses the word "fundamental," it is a term of art as they use it. Now, there usually is a need to make a distinction, when in the law there is a difference between fundamental rights and other kinds of rights and how the courts look at them. This means that the Government must have an extraordinary or compelling justification for interfering with a personal decision of the lands I have mentioned. Now, when Senator Leahy asked you about the right to privacy, you first agreed with the statement that the Government could not interfere with that right, absent a very compelling reason. But you then went on to say that the Government "just needs a reason." There is a big difference, as you know, between the two, just needing any old reason and needing a compelling reason. The Government has reason for almost any action they take, a compelling reason for only a few of the actions that we take. Now, it may have been just a semantic difference. But what I want to go back to, having read the record, is do you agree that the right of privacy is fundamental, meaning that it is so important—I am not asking about any specific rights of privacy—meaning that it is so important, that the Government may interfere with it only for compelling reasons, when it finds that such a right exists, the right of privacy?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The line of cases that you just outlined, the right to marry, the right to procreate or not, the right to raise one's children, the degree of justification the State must have to interfere with those rights is large.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is what I thought you meant, but there was a line in your response that you have now clarified for me. I am not pressing you about other rights, unfounded, unrecognized, arguably existing. I am not asking you about those. I am not asking you about consensual homosexual marriages or anything else. I am just dealing with the line of cases that have already been decided on procreation, in this case the Griswold case, starting with it, and family decisions and the like. I am not pressing you to where you are going to go from here. I just wanted to make sure I understood you viewed these cases as requiring a compelling government reason.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. You mentioned Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). Although pigeonholed in the free exercise of religion area, I would put the Yoder (1972) case in that same line. 279
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I agree with you. Again, the reason I raised this is that at least two of the last five Justices who have come before us have argued that either the right does not exist, should not exist, that the Court made incorrect decisions in that line of cases, or that if it exists, it is not a fundamental right. And that is why I am pursuing this, to make sure I understood what your answer was. I now understand it. Now, another critical question concerning the method you would use to determine whether or not personal decisions are included within the zone of decisions protected by the right of privacy has been raised by my friend from Utah. He indicates there is no principled means by which one could find a right to privacy, a notion I strongly disagree with, from the standpoint of legal scholarship. There is a principled rationale that has been employed to find the right to privacy. But there is a debate that exists. I am not going to ask you about how you decide any specific case, but I would like to determine where you are, in a general sense, in this debate over the methodology that should be employed to determine in the first instance whether or not there is a principled reason for finding a right of privacy in the Constitution. Now, Judge Scalia, a brilliant jurist who you know well, who apparently wants to be on an island with you somewhere [laughter]. By the way, please note in the record that people laughed. That was
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Compared to what. He didn't say I would be his first or second choice. He said compared to what. He was given a tightly circumscribed choice.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, if I had to be on an island with a man for any extended period of time, I might pick Judge Scalia. The reason I would, sincerely, is I think he is brilliant, I think he is dead wrong most of the time, as he thinks I am, and it would be, as another nominee who came before us once said, when asked why he wanted to be on the Court, it would be an intellectual feast. A slight digression: I had a conversation with Justice Scalia after you had been nominated, to tell him that I was about to say in an interview the vote I most regretted casting out of all the ones I ever cast was voting for him, because he was so effective. He said what are you doing now? I said I am teaching a course in constitutional law at Widener University. He said, oh, my God, I had better come and tell them the truth. [Laughter.] So I am sure he would have an opportunity to educate me, if we were on an island together. Having said that, Justice Scalia, on a very serious note, has offered one method, a methodology to determine whether or not a right of privacy, a personal right that is not enumerated, not mentioned in the Constitution, warrants constitutional protection. And he has written that the only interests protected by the liberty clause of the 14th amendment are those interests which are defined in the most narrow and specific terms, where historical safeguards from government interference have existed. Now, as you know better than I do—again, at the expense of offending my brethren in the press, I am going to be very fundamen75-974 O - 94 — 10 280 tal about this, to use a phrase from another context—when in the past we determined whether or not fundamental rights of privacy exist, one of the things they go back and do, as courts have done, is look at history. They say what have we done in the past, as a people, what has our country done, what has our English jurisprudential system recognized, not only here in the States, but in England, in the common law? And they look back at that as one of the guideposts, not the only one, not necessarily determinative, but that is what they have done. I think, by inference, Justice Scalia acknowledges that is an appropriate method, at least a starting point to determine whether or not an unenumerated right should be recognized as protected by the Constitution. So Justice Scalia says that when you go back, determining whether or not there is an interest protected by the liberty clause of the 14th amendment, you go back and look at those interests defined in their most narrow and specific terms. So the question for Justice Scalia, in deciding whether the Constitution protects a particular liberty, including a particular privacy interest, is whether years and years ago the Government recognized that precise specific interest. Now, that approach of Justice Scalia, which was outlined by him in the Michael H. case, that approach is very different from another that I would characterize as the traditional approach for determining whether or not these unenumerated rights that we have recognized exist. The traditional approach, in my view, looks to whether the Constitution expresses a commitment to a more general interest, and then asks how that commitment should be applied in our time to a specific situation. The difference between these two approaches can make all the difference in the world on where a Justice comes out on the finding of whether such a right exists or doesn't. For example, under Justice Scalia's approach, the right to marry someone of a different race is not protected by the Constitution, at least arguably, based on things he has said, because the right to marry is nowhere specifically mentioned in the Constitution. And when you go back to look at whether or not—which is one of the methods used by all Justices to determine whether or not there is an unenumerated right that should be protected—when you go back in history and look, there is no place you can say that, under our English jurisprudential system, our courts or the English courts have traditionally recognized the specific right of blacks and whites to marry. And since you can't find that back there, then the right doesn't exist. Whereas, in footnote 6, for example, as you well know, although Justices Kennedy and O'Connor agreed with the overall finding on that case—which I won't bother you with the facts, which you know well and are not particularly relevant to my point—they said we dissent from the methodology used by Justice Scalia in arising at a decision, which is the right decision—my words—but for the wrong reason. And they said you go back and you look at the general proposition of whether or not the general interest seeking protection under the Constitution is in fact one we have historically protected. 281 So they say when you go back, you should look at whether we historically protected the right and recognized the right of individuals to marry who they want to marry. So you go back and, depending on what question you ask, you get a different answer. If you go back and say, OK, we will recognize—and I am oversimplifying—we are going to recognize, determine whether or not antimiscegenation laws are constitutional, and the basis on which they are being challenged is I have a privacy right to marry who I want to marry, so let's see if that right is protected by the Constitution. Scalia's approach, you go back and look at all the history and say, hey, there is no place where blacks and whites were protected. But if you used the O'Connor approach, you go back and say have we recognized the right to marry? You say yes, we have done that, ergo, we can say, using that methodology of looking at the general proposition, there may be a principled rationale to acknowledge or recognize the right to marry a black man or a white woman or a white man or a black woman, that may fall within the domain of my right of privacy guaranteed by the Constitution.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Would you yield just for a second on that point?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. I would like to finish just this line, so I don't confuse anybody.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I just want to mention that I really don't think Justice Scalia would fail to find, under the 14th amendment protection clause, that Loving v. Virginia is the correct decision.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. A valid point.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I don't think he would have had the interpretation
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. He may have come up with the exact same decision of saying that it would, in fact, be inappropriate and unconstitutional for the State of Virginia to have such a law. But he would not have found it, if you used his methodology, because that is where the right of privacy has most often been found by the courts since Pierce. Now, in contrast, as I said, under the more traditional approach recognizing unenumerated rights, the courts ask no$ whether the legal system historically had protected interracial marriages, but whether the legal system historically had protected the institution of marriage generally. Because it had, because our legal system long had understood the importance of family integrity and independence, the Court held in Loving v. Virginia that the particular right to marry someone of another race is also protected. Now, in thinking about how the Constitution protects unenumerated rights, including rights of privacy, will you use—I am not asking you where you are going to come out on any issue, but will you use the methodology that looks to going back to a specific right being sought, guaranteed, or will you use the more traditional method of more broadly looking at the right that is attempting, seeking constitutional protection before the Court? What methodology will you use? What role will history and tradition play for you in determining whether or not a right exists that is not enumerated?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Mr. Chairman, if I understand your question correctly, including the exchange between you and Senator Hatch, 282 if you are asking whether I would have subscribed to both parts of Loving (1967)—that is, both the equal protection and due process
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. NO. Let me be very clear. I don't care about Loving. I was using Loving as an illustration as to how you would arrive at a different decision depending on which methodology. I am asking you very specifically
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Loving was the case Justice O'Connor used
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Illustrate.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. To distinguish her position from the position Justice Scalia took in the Michael H. (1989) case. That case, as you know, had nothing to do with the issue raised in Loving. The controversy centered on a footnote in the Court's opinion, in Justice Scalia's opinion, a footnote added to the opinion in response to the dissent. The footnote was rather long, as I remember—it is not in front of me. The note appears at least to Associate Justice Scalia with a first step that some people wouldn't take; that is, he appears to recognize the existence of an unenumerated right. Then the question is: How does one define that right? He is not saying there are no unenumerated rights. I have a colleague who has written a wonderfully amusing article, which I think he means us to take seriously. It is an article by my chief judge, Abner Mikva. It says, "Good-bye to Footnotes." And perhaps
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, the footnote here, Judge, is irrelevant. Let's just put it all aside. I am just using that as an illustration. The debate among people today in your business is: What principled rationale do you use in determining whether or not, under the liberty clause of the 14th amendment, a privacy right exists?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Biden, I have stated in response to Senator Hatch that I associate myself with the dissenting opinion in Poe v. Ullman (1961), the method revealed most completely by Justice Harlan in that opinion. The next best statement of it appears in Justice Powell's opinion in Moore v. City of East Cleveland (1977). My understanding of the O'Connor/Kennedy position in the Michael H. case is that they, too, associate themselves with that position. Justice O'Connor cited the dissenting opinion in Poe v. Ullman as the methodology she employs. She cited Loving as her reason for not associating herself with the footnote, the famous footnote 6 in Justice Scalia's Michael H. opinion, a footnote in which two Justices concurred. That is about all I can say on that subject.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Well, I think that answers the question. It seems to me that based on what you have said, you believe the more traditional principled rationale for arriving at whether or not such a right exists as it relates to the use of historical precedent is the one that you would use, rather than very narrowly speaking to a very specific right to determine whether or not it was protected. Now, I have used up 15 minutes. When I come back, I can tell you, I want to move from that to talk about the Chevron case and what methodology you use in terms of deciding—and it is a different issue there. It is legislative intent that is going to be the issue, and what deference is given to it. I know we have raised 283 questions about that before, but I would like to nail down a few more points. I appreciate your answer, and I am not going to go beyond the 15 minutes. I will now yield to the Senator from Pennsylvania.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Does that mean I am precluded from raising that issue before it comes back to you, the Chevron issue?
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Not at all. Not at all.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Mr. Chairman, thank you very much. You asked for an indication of time. I would expect to use the full 30 minutes. Judge Ginsburg, I begin by expressing my own concern about the scope of the answers. The chairman said that he wished you would have answered a little more. I would join Senator Biden in that. I appreciate the fact that you have to make your own judgment as to what you will answer. My own reading of the prior nominees has been that, as a general rule, there were more answers. Some answered less. Justice Scalia answered virtually nothing.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is why I would like to be on an island with him. [Laughter.]
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. He is a very engaging gentleman and a squash player, and I haven't yet been able to persuade him to do that. But when he was before this panel, I think Senator Biden is correct that he answered much less than you have. You will not find any quotations from me in the record about praising nominees before our panel, and this is the eighth occasion I have been a party to them—praising nominees for not answering questions. I read one of your articles, and as you know, I wrote to you because you had commented that you believed the committee had crossed the line with Judge Bork in questions we asked. I wrote to you and asked for some examples, and I can understand your being too busy to give them. My own observations have been that nominees answer about as many questions as they have to for confirmation, and I think that Chief Justice Rehnquist, for example, came back and answered some questions. It was a 65-33 vote. The tenor of these hearings has been very laudatory from this side of the bench, and I would join in that, as I said, about your academic and professional and judicial career. So that I don't think there is any doubt about your nomination not being in any jeopardy, but I would just add my voice to those who have commented about an appreciation on our side for more information. When I asked the question about the death penalty yesterday, I tried to articulate it in as gentle a way as possible. I would not ask you, as Senator Hatch did—and he had every right to ask, and you had every right to decline—about issues moving toward how cases might be decided and whether you agreed with Justices Marshall and Brennan on capital punishment being cruel and unusual punishment in violation of the eighth amendment. But I think that capital punishment is sort of a landmark issue on law enforcement, its deterrent effect and its ability to be a beacon, so to speak. That is one of the areas where I would have appreciated a little more. 284 I mention those comments to you at the outset because I think it is important, and this is obviously going to be an area where there are going to be lots of differences of opinion, not only with you today but with the nominees who will follow. Let me now move to the substantive area that I consider to be very important, and that is the role of the Court on refereeing disputes between the President and the Congress on the War Powers Act issue, about which you wrote a concurring opinion in SanchezEspinoza v. President Reagan. The issue of the gulf war was very problemsome, and President Bush asserted very late into December 1990 the intent to move into a conflict with Iraq over Kuwait without congressional approval. The leadership in the Congress stated their intention not to bring the matter to the floor. It was in a very unusual procedural setting where we had swearing-ins on January 3, and Senator Harkin of Iowa brought the issue up in a way which I think forced the hand of the leadership, and the issue did come up and we did have a vote on the resolution for the use of power. Let me move to your concurring opinion in Sanchez-Espinoza, as the fastest way to get into the issue and into a dialog, where you said that you: would dismiss the War Powers claim for relief asserted by congressional plaintiffs as not ripe for judicial review. The judicial branch should not decide issues affecting the allocation of power between the President and Congress until the political leaders reach a constitutional impasse. Congress has formidable weapons at its disposal: the power of the purse and investigative resources far beyond those available in the third branch. I would suggest to you, Judge Ginsburg, that the power of the purse is not very helpful if the President goes into Kuwait without authorization from Congress were the Congress to cut off his funding. It obviously can't be done when fighting men and women are at risk. And when you talk about the investigate resources far beyond those available in the third branch, I don't believe that our investigative resources, which are customarily very important, really bear on this issue. If we are to have a resolution between the Congress and the President, where we have a Korean war without a declaration of war, we have a Vietnam war without a declaration of war, and we have an issue about a violation of the War Powers Act in El Salvador as the issue came before your court, how can this dispute of enormous constitutional proportion be decided unless the Court will take jurisdiction and decide it?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Specter, in that case, in the portion you read, I said that the question was not ripe for our review.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I did.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It is a position developed far more extensively than in the abbreviated statement I made in the Sanchez-Espinoza (1985) case. The principal exponent was my colleague, Carl McGowan. He wrote persuasively on congressional standing and the concept of ripeness for review. His position was essentially adopted by Justice Powell in Goldwater v. Carter (1979). That case concerned the termination of the Taiwan Defense Treaty. 285
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. It was Justice Powell who just had a single line: "Although I agree with the result reached by the Court, I would dismiss the complaint as not ripe for judicial review." But I do not believe that either the Supreme Court or the circuit court—and the circuit had it in Crockett v. Reagan—has ever really dealt with the issue. I tried with Justice Souter, asked him if he thought the Korean war was a war. I answered the question in the question, because I think the Korean war was a war, and he said he would have to think about it. I said, "I am going to ask you the next round," and over the weekend he came back. I said, "Have you thought about it?" And he said, "Yes, I have." And I said, "Well, was the Korean war a war?" And he said, "I don't know." I think this is a matter that we really ought to explore with a nominee—standing, ripeness. You have written expansively and I have admired your work on standing. I think that the Court dismisses too many cases on the standing issue. But isn't the Supreme Court there really to referee big, big issues? It is harder to have a bigger issue than the constitutional authority of the Congress to declare war or whether the President exceeds the War Powers Act if we don't come to you. And we can hardly come to you when the troops are in the field.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Specter, the question for me was: Who is the "we"? I have not ruled out the ultimate justiciability of a question of the kind you have raised. What I said was that I associate myself with the position taken by Justice Powell, and in both decisions and law review articles by Carl McGowan, the position that legislators must stand up and be counted in their own House before they can come to court. If Congress puts itself in conflict with the Executive by passing a resolution, by a majority of both Houses, saying we, the Congress, take the position that the Executive is acting in opposition to our will, at that point I could not say there isn't a ripe controversy. But unless and until that occurs, I have taken the position—whether it is Republican Senators or Democratic Senators—that no ripe controversy exists between Congress and the Executive. The controversy ripens only when legislators who oppose to the Executive's position win in their own branch. Until that point is reached, in my view, there is no justiciable controversy between the two branches of government. The President is a unitary. The President takes a position. For Congress to take a position, Congress must act by majority vote. I do not think a group of Senators can come to court and ask the third branch to resolve a clash between the legislative and the executive branches. That is my position on ripeness. I have stated that position in an abbreviated way in Sanchez-Espinoza (1985). Others take different positions. Members of my court have taken other positions. As I see it, there must be a majority vote in Congress before the Executive and the Congress can have a controversy ripe for court to review. If a group of legislators does not prevail in Congress, that group cannot come to court for resolution of a clash that, in my mind, does not exist until it becomes the position of the Congress. That is about all I can say, Senator Specter, on that subject. 286
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Ginsburg, do you believe that the Korean war was a war?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. That is the kind of question on which you might ask a law teacher to expound. If you are asking me how I would rule as a judge—and you are considering me to be a judge, not a legislator—I would have to say the Korean conflict was a complex operation. If I were presented with the record, the briefs, the arguments, I would be required to make a decision on it on the basis of what the parties present to me. I am afraid I can't do any better than Justice Souter did on that question. The job for which you are considering me is the job of a judge, and a judge has no business expounding on a question like that apart from the record, the briefs, the presentations of the parties. We do have a great attachment in our system of justice to the principle of party presentation. Judges in our system are not inquisitorial. They do not take over the proceedings and pursue what they will. Senator Hatch reminded me of that very forcefully. Very dear to our system of procedure is the principle of party, not judicial, presentations. I can't answer the question about the Korean war off the top of my head. If I were confronted with it as a judge in a case where the issue was justiciable, I would make my decision on the basis of the record, the briefs, and the arguments before me; out of that setting I am not prepared to answer the question.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. May I respectfully suggest, Judge Ginsburg, that a question as to whether the Korean conflict was a war does not come within the confines of justiciable issues where briefs are required and oral argument is required on a narrowly focused matter. As a matter of common life experience, people have a view as to whether the Korean conflict, involving thousands of people with a lot of military action, was or was not a war. In citing the Korean conflict, I cite something which is not going to come before the Court, and I would expect that that would be the kind of a question where at least we could get some idea as to your life experience and your general approach to a matter of some magnitude, but I am not going to press it. Let me move to another issue. I have been very much concerned about the Supreme Court functioning as a super legislature. As I said earlier, I am very much concerned about the issue of judicial activism, and would cite two cases where the Court acted as a revisionist Court. The Griggs decision was handed down in 1971 on a matter involving the Civil Rights Act, and then Ward's Cove came along in 1989 and, in my view, overruled Griggs. Congress changed that and returned to Griggs with the Civil Rights Act of 1991. . Senator Kennedy asked you earlier today if you agreed with the decision of the Supreme Court in one of those series of cases, and I am going to have to recheck the record to see if that was really answered. But the case I want to take up with you is the case of Rust v. Sullivan, and the concern that I have here is with an activist-revisionist Court which is going to make new law. Rust v. Sullivan is the gag rule case, and that involved a situation where the provisions of the Public Health Services Act of 1970 relating to counseling on planned parenthood, was passed in 1970, and a regulation was promulgated in 1971 that there could be 287 counseling on abortion issues. Then in 1988, the Secretary of Health and Human Services issued a new regulation to the contrary, that there could not be counseling. Even though the earlier regulation had stood for some 17 years, Congress had not acted to alter it, strongly suggesting congressional approval of the regulation. Then in a 5-to-4 decision, the Supreme Court upheld to new regulation, pointing out, among other things, that the new regulation was "in accord with the shift in attitude against the elimination of the unborn children by abortion." I was surprised to see the Court rest its opinion in part on a shift in attitude, shift in public opinion, to come out with a new regulation. My question to you, as this is now a decided issue, do you agree with the Supreme Court's judgment in Rust v. Sullivan?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Specter, remind me of the prior history of that case. It was a question, was it not, of the deference due to the Health and Human Services
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. That was a factor in the case, on the deference due a regulation promulgated by the executive branch, but within the context where there had previously been a contrary regulation, which had been in existence for 17 years, and no congressional action to change it during that time.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. You said that you were going to check to see what my answer was about Griggs (1971) and Ward's Cove (1989). I hope I have been consistent in saying I think that the court, my court, and the Supreme Court, endeavored to determine what Congress meant. Griggs, was a unanimous decision authored by Chief Justice Burger, was it not?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. It was.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. And wasn't Ward's Cove a divided decision?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Five-to-four.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. And then Congress said what it meant. I gave some other examples of such congressional clarification or correction. But I am uncomfortable about inquiries concerning how I would cast my vote in a particular case. I will address and explain, to the extent I am able, any vote I have cast. But you are raising a question about—one of your colleagues said he would inquire about Chevron (1984) deference and ask what that means to me. I will confess I am the judge who wrote the decision that was reversed in Chevron. I regard Chevron as stating a canon of construction, which Congress is at liberty to say it doesn't want applied. I don't want to sit here before this committee, however, and write the opinion I would have written in the Rust v. Sullivan case.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Ginsburg, I am not asking you about Chevron. The specific case that Senator Kennedy asked you about I believe was Patterson, and in response to his question about whether you agreed with the opinion—and I believe it was Patterson—he said since they won't come back, you responded about—I don't believe you answered his question—you responded about the Congress changing the law on title VII cases applying to sex discrimination, and then about the Goldman case. But I have moved away from Patterson and I haven't brought up Chervon, and the decision involving the gag rule, Rust v. Sullivan, is an example of a revisionist Court, in my opinion. It is a decided 288 case. What is the problem, on a matter which has been litigated and is finished, in having a Senator on the Judiciary Committee ask a nominee for the Supreme Court whether that case was correctly decided? It is a finished matter. Just as Senator Kennedy asked you about Patterson this morning, as he put it, the case won't come back.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. It isn't clear to me, Senator, that the case won't come back, simply because we have a different regulation now. The gag rule was withdrawn in the very first week of this new administration. But it isn't far-fetched to think the rule could return in another administration. Again, I sense that I am in the position of a skier at the top of that hill, because you are asking me how I would have voted in Rust v. Sullivan (1991). Another member of this committee would like to know how I might vote in that case or another one. I have resisted descending that slope, because once you ask me about this case, then you will ask me about another case that is over and done, and another case. So I believe I must draw the line at the cases I have decided. You asked about my statement in Sanchez-Espinosa, and I answered that question. If you inquire about something I have written, or an authority on which I have relied, I will do my best to respond. But if you ask how I would have voted on an issue that can come back, I must abstain. I can address an issue or case that is never going to come before the Court again—Dred Scott, for example, a decision I said was wrong for all times. The issue in Rust is one that may come back. You can't rule it out, any more than I can. You can say for now the gag rule has been removed, the President removed it in his very first week in office. But it was put in place by the prior administration. I can't rule out the possibility that another administration will put the gag rule back. If I address the question here, if I tell this legislative chamber what my vote would be, then my position as a judge could be compromised. And that is the extreme discomfort I am feeling at the moment. You are asking me to tell you how I would vote on a case you call over and gone, one that can't come up again. I know the case is not going to come up again in the next 4 years. I can't see beyond that. I know that
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. HOW about 8 years? [Laughter.]
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I am not going to predict the result of the next election, any more than you are, Senator.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Judge Ginsburg, do you agree with the decisions of the Supreme Court in the 1930's, when the Supreme Court of the United States invalidated a whole series of congressional enactments on the New Deal, on the ground of substantive due process? Do you agree with those decisions?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Specter, I think that line of authority has been so discredited by so many Supreme Court decisions, that if anything is well established, it is well established that the Lochner era is over. One cannot say of a recent 5-to-4 decision what one can say about the repudiation of the Lochner line of cases.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Good. Now that we are finished with the thirties, we can move into the forties. 289 Judge Ginsburg, do you think that Congress has the authority to take away the jurisdiction of the Supreme Court of the United States to decide the constitutionality of issues under the equal protection clause of the 14th amendment?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. YOU are asking me, what if Congress decided to do that, and if it were challenged in court—I don't think Congress has ever done that, right?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. EX Parte McCardle dealt with that right after the Civil War.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. There is McCardle (1869) and there is Klein (1872), and I don't think there is much more. If Congress were ever to do what your question hypothesizes, there would almost certainly be a challenge and it would almost certainly come before the Court. I can recite the names of the cases that exist, but I can't say anything beyond that. Any further statement would not be in the best interests of the Supreme Court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Did you answer—I believe you did yesterday— that you agreed with Marbury v. Madison1 ?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I believe
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I don't ask that question lightly, because some don't.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I believe the institution of judicial review for constitutionality is well established—I think I expressed myself to that effect yesterday. It is a hallmark of this Nation that our courts exercise that function. We have served as a model for the world in that regard. After World War II, a number of states that never had the institution of judicial review for constitutionality looked to our system as a model. Yes, I feel comfortable that I am not doing any damage to the Supreme Court or the Federal judiciary by saying I believe Marbury v. Madison (1803) is here to stay.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. The time goes fast when I am questioning, maybe more slowly for you, Judge Ginsburg. The red light is on. If I may just pursue this for a moment or two more, Mr. Chairman. Marbury v. Madison established the supremacy of the Supreme Court to decide the constitutionality of issues, and there are some up to this moment who dispute that. I asked you the question about whether Congress can take away the power of the Supreme Court to decide the constitutionality of issues under the equal protection clause of the 14th amendment, because you are the foremost champion of that clause. But when you declined to answer that question, the thought occurs how do you have inviolate Supreme Court standing to decide constitutional issues, if the Congress can take away the authority of the Supreme Court to decide it, take away the jurisdiction. When Justice Rehnquist was up for confirmation for Chief Justice, I asked him the question as to whether the Congress could take away the jurisdiction of the Supreme Court, and he declined to answer. Overnight, one of the staffers found an article written by Chief Justice Rehnquist in 1958. It was in the Harvard Law Record. He was then William H. Rehnquist, no titles. In that article, Mr. Rehnquist criticized the Judiciary Committee for not asking Justice Whittaker, a nominee, important questions on due process. I said to him the next morning, I said this article 290 was found by staff and this is what you said in 1958, and he had a great answer. He said, "I was wrong." Then I pursued the question, with some tenacity, perhaps, and he finally answered the question. He said the Court could not be stripped of jurisdiction in first amendment cases. I then asked him what about fourth amendment cases. He said I am not going to answer that. How about fifth amendment cases, due process, right to counsel? No, I am not going to answer. Sixth amendment? I asked him what's the difference between saying the Court can't be stripped of jurisdiction in the first amendment, but you won't answer as to the fourth, fifth and sixth? I said I am not going to answer that, either. [Laughter.]
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator, I have a feeling your tenacity is not likely to be rewarded with this Judge.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Don't bet on it, Mr. Chairman. My final question to you, Judge Ginsburg, for this round is how can your granddaughters have the protection of equal protection under the equal protection clause of the 14th amendment, and my granddaughters, too, if the Congress can take away the jurisdiction of the Supreme Court of the United States to decide those issues?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Specter, so far I have only one granddaughter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Just wait.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I am hopeful. I never said the Congress could. I haven't got the case before me. Chief Justice Marshall, in Marbury v. Madison (1803), said you start with the case. As Madison said, before the courts can do anything, they must have a case of a judiciary nature. Then Chief Justice Marshall said, when I have a case, I must apply the law to it, and the highest law in the land is the Constitution. That fundamental law trumps other laws. But judges do not apply the Constitution to abstract questions. I am bound by the case, I must decide the case, that is where a judge gets his or her authority to expound on anything from, from what article III says, from a case or controversy, a case of a justifiable nature. If I may, I do want to emphasize what I hope I have made clear to you, because I do not want to be misunderstood as having criticized this committee. In the article that you read, I confess to an ambiguity. The sentence I wrote was, "The distinction between judicial philosophy and votes in particular cases blurred as the questions and answers wore on." I would like to clarify that I was not criticizing this committee. Far from it. I appreciate now more than ever how difficult it is for the responder to maintain that line and not pass beyond it into forecasting or giving hints about votes in particular cases. I was speaking of the vulnerable responder, not the committee that asked the questions. I might also say, on your question concerning the word "war," it depends on the context. Are you asking about the power of Congress to declare war, or are you speaking in lay terms? I can recite wise counsel that has always shored me up. What a word means depends on the context in which it is used. That you define a word one way in one context doesn't necessarily mean that you should define that word the same way in every other context. The notion that you should, said a great law 291 professor, Walter Wheeler Cook, "has all the tenacity of original sin and must constantly be guarded against." So that is what I was guarding against by not answering the question, was the Korean conflict a war. I must ask in what context are you asking that question, are you asking me to decide whether the Executive, in that affair, violated the Constitution, which gives Congress the power to declare war?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I thank you for your answers, Judge Ginsburg. I will return to the issue of war on the next round, because I don't think there is any context in which it wasn't a war. I would conclude by saying, and I would ask for your reconsideration of this, that although you should not answer questions about cases which are likely to come before your Court, Marbury v. Madison could, and, just as that is rockbed, I would hope that we would have assurances from nominees that rockbed issues, like the jurisdiction of the Court to carry out Marbury v. Madison on constitutional issues, like the first amendment and like the equal protection clause, are inviolate. Those are rockbed issues which are not going to change, no matter who brings them to the Court, and we are willing to stand up and say so.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. In a case of a judiciary nature, I am prepared to do what a judge does.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Judge Ginsburg, during my first round of questions Wednesday, we had a discussion of antitrust. Now, antitrust is sort of a phrase in the law that you are very familiar with, and a lot of Americans don't pay too much attention to it. But in this Senator's opinion, it really has—it is the bedrock of the whole free enterprise system. The question really having to do with antitrust is whether conglomerates of business or economic power can be used to adversely affect the consumer in his or her right to buy or sell at a fair price. I would like to follow up on the discussion that we had yesterday. As you may recall, I am concerned about the fact that the Supreme Court appears to be of two minds about certain antitrust cases. Its most recent decision on the subject seemed to favor a pro-big business approach to antitrust law based on economic theory instead of the facts. And that disturbs me much. My question to you is: How would you view an antitrust case where the facts indicated that there had been anticompetitive conduct but the defendant attempted to justify it based on an economic theory such as business efficiency?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I am not going to be any more satisfying to you, I am afraid, than I was to Senator Specter. I can answer antitrust questions as they emerge in a case. I said to you yesterday that I believe the only case in which I addressed an antitrust question fully on the merits was the Detroit newspaper case. In my disserting opinion in that case, I attempted faithfully to interpret the Newspaper Preservation Act. I sought to determine what Congress meant in allowing that exemption from the antitrust laws.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Indeed you did.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Antitrust, I will confess, is not my strong suit. I have had, as you pointed out, some half a dozen—not many 292 more—cases on this court. I think I understand the consumer protective purpose, the entrepreneur, independent decisionmaking protective thrust of those laws, but I can't give you an answer to your abstract question any more than I could—I can't be any more satisfying on the question you are asking me than I was to Senator Specter on the question that he was asking. If you talk about a particular case—my opinion in the Detroit newspapers case was a dissent. There was a division in the court on how to interpret the statute, the Newspaper Preservation Act. That case indicates my approach to determining what Congress meant.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, let me ask you this: Do you think that anticompetitive conduct can ever be justified on the basis that you have to have it in order to achieve business efficiency? I am really not asking you how you would vote on a case. I am just sort of asking you generally.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. As you know, there is a key decision by Justice Brandeis, Chicago Board of Trade, which teaches that restraints of trade which are not per se illegal can be justified if their effects are more procompetitive than anticompetitive. And that is the analysis one would have to undertake. You asked me if the only purpose of the antitrust law is efficiency. The cases indicate that the antitrust laws are focused on the interests of the consumer. There is also an interest in preserving the independence of entrepreneurs. I don't think the antitrust laws call into play only one particular economic theory. The Supreme Court made that clear in the Kodak (1992) case. But out of the context of a specific case, I can't say much more. No, I don't think efficiency is the sole drive.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In a totally different area, I recognize the majority of Americans, and a majority in Congress for that matter, support the death penalty as a means of dealing with violent crime. I have long opposed the death penalty because of my concern that our criminal justice system too often makes a mistake and sentences an innocent person to death. I am frank to say that there are certain crimes with which I am familiar, which we all read about in the paper, we see on nightly TV, in which I would almost want to go out and shoot the criminal myself with a gun because they are so heinous. But so often, too often, mistakes are made. Four months ago, this committee held a hearing on innocence and the death penalty, and we heard firsthand about two of the tragic mistakes the criminal system made. We heard from Walter McMillian, an African-American from Alabama, who was convicted of murdering a convenience-store clerk after a trial lasting all of a day-and-a-half. The jury recommended life imprisonment, but the State judge, who was an elected official, perhaps recognized the political aspects of the matter, overruled the jury and ordered the execution of McMillian. After 5 years on death row, Mr. McMillian was freed because he did not commit the murder. We also heard from Randall Dale Adams, a white man who in 1979 came within a week—within a week—of being executed for the murder of a Dallas, TX, policeman. Ten years later, he was able to show his innocence and was released. 293 Another example occurred after our hearing. Just last month, a white man from Maryland, Kirk Bloodsworth, was set free after 9 years in prison when it was conclusively proven that he did not commit the heinous rape and murder of a young girl. He had been sentenced to die. Our committee held a hearing to understand the problems with the Supreme Court's decision in the case of Herrera v. Collins. In that case, Mr. Herrera was sentenced to die and later obtained evidence that allegedly proved his innocence. A Reagan-appointed Federal judge, a district judge in Texas, wanted to conduct a timely hearing to review Herrera's new evidence of innocence. He was prepared to go forward with the hearing within 2 or 3 days. The State of Texas objected to the district court's decision to hold a hearing, and the case was sent to the Supreme Court for review. The Supreme Court ruled that the Constitution does not require that a hearing be granted to a death row inmate who has newly discovered evidence which, if proven, could establish his innocence. In the opinion for the Court, Chief Justice Rehnquist was unable to declare clearly and unequivocally that the Constitution forbids the execution of innocent people. The attorney who represented the State of Texas went even further than the Chief Justice. She bluntly asserted that if a death row inmate receives a fair trial, it does not violate the Constitution to execute that inmate even if everyone agrees that he is innocent. Now, frankly, that is a shocking statement that came from the prosecutor in that case. I am extremely concerned with the Court's opinion in Herrera and the argument made by the Texas prosecutor. Even though the Rehnquist opinion did not clearly hold that it was unconstitutional to execute an innocent person, it is possible to read that into his statements. Do you believe the Herrera case stands for the principle that it is unconstitutional to execute an innocent person?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. As I understand it—and the case is not fresh in my mind—what the Court said was that the evidence in that case was insufficient to show innocence. It did not exclude a different ruling in a case with a stronger record. We heard yesterday from Senator Feinstein who expressed her anxiety about the number of cases that go on for years and years. The colloquy occurring here shows the tremendous tensions and difficulties in this area. Her concern was that there must be a time when the curtain is drawn, and your anxiety is that no innocent person should ever be put to death. Those tensions are before you, some of them are presented in the Powell Commission report that you will address. My understanding of Herrera (1993) is that it is concerned with the situation of a prisoner asserting, say 10 years after a conviction and multiple appeals, I didn't do it, and then the process would start all over again. I can empathize tremendously with the concerns
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NO, I don't think anybody would argue that. I don't think anybody would argue that, Judge Ginsburg, that 10 years later he can "I didn't do it," because he has been saying for 10 years he didn't do it. 294
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. What the Court said—this is to the best of n\, recollection—is that the evidence was too slim in Herrera to make out that claim, and it left the door open to a case where there was stronger evidence of innocence. That case is yet to come before the Court. So my understanding of this case is that, based on its particular record, the Court found the evidence too thin to show innocence, but the Court left open the question whether one could maintain such a plea on a stronger showing than the one made in that case. That is as far as the Herrera case went. The decision left open a case where a stronger showing could be made.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NOW, State courts, of course, should review any new claim of a death row inmate that he is innocent. But that review can be in an atmosphere of strong public pressure for execution, especially when the conviction is for a particularly heinous or vicious crime. Public pressure in these circumstances is most worrisome when the State trial and appellate judges are elected. Historically, the Federal courts have played a significant role in reviewing State death penalty verdicts. Federal judges have lifetime appointments and are more immune to the strong public sentiments that surround death penalty cases for heinous and violent crimes. Now, the Herrera case raised significant new questions about the availability of the Federal courts to hear the claim of a death row inmate that he has new evidence of his innocence. Would you care to explain your view on the general role Federal courts should play in hearing the claims of death row inmates who have newly discovered evidence of their innocence?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Metzenbaum, the question of habeas review and its limits is before the Senate, before this committee, I believe
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But not before the Court. Not before the Court, so I think it is entirely proper for you to respond.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I can tell you of the legislation Congress passed for the District in which I operate; that is, we generally do not have habeas review. You have given to the District of Columbia courts a fine postconviction remedy. It is identical to the Federal remedy. The Supreme Court said, some time in the middle 1970's, that one goes from the District of Columbia courts to the Supreme Court. If the Supreme Court turns down a review request, there is no collateral review in the Federal Courts. Some States must wonder why Congress so values the District of Columbia courts and doesn't similarly value the State courts. But I am now simply stating that in my court we don't have the brand of habeas review that the regional circuits have because Congress has said we don't. One of the reasons is that the President appoints District of Columbia court judges. Although they are not lifetenured judges, they are not elected or appointed by the city government. They are Presidential appointees commissioned to serve as judges for the District of Columbia. What happens next in Federal habeas review, what controls there should be in setting the difficult balance between fairness to the defendant and finality in the system, is going to be your call, 295 not the Court's call. The next step will be the legislative response to the Powell Commission report.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But having said that it is our call, my question to you is: What role do you believe the Federal courts should play in hearing the claims of death row inmates who have newly discovered evidence of their innocence, absent any action by the Congress?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. All one can say is that the evidence would have to be stronger than it was in the Herrera case, because that is the binding precedent at the moment. I can't give you an advisory opinion on a case that is not before me with a particular record, a particular showing of innocence of the defendant in question.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am not asking for an opinion in a case. I am asking whether you feel that the Federal courts do have a role to play in habeas proceedings where there is newly discovered evidence that the guilty man, the man already found guilty, is innocent?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think the Supreme Court has indicated that they do, but not without a sufficient showing, a factual showing, of innocence.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I would agree you would have to have sufficient evidence and factual showing of innocence, and I would accept that answer. The holding in a recent District of Columbia Circuit Court, U.S. v. Thomas Jones, is very disturbing to me. The appeal to your court involved the sentencing guidelines and whether a trial judge could give a longer sentence to a defendant who admitted responsibility for a crime after trial than could be given to the same defendant if he had pled guilty and admitted responsibility for the crime before going to trial. On its face, it is shocking to consider that a trial court on its own initiative could penalize an individual for exercising his constitutional right to go to trial. The majority opinion, which you joined, held that it was permissible for the trial judge to give a longer sentence after the trial. Frankly, I have difficulty in comprehending that. The four dissenting judges in the case stated that the majority opinion improperly allowed for increased punishment of a defendant for exercising his constitutional right to go to trial. Now, I realize that the Thomas Jones case involved complicated sentencing guidelines. Therefore, I won't ask you to go into the specifics of the case. But what I do ask is whether you believe that it is improper for a trial court on its own initiative to impose a harsher sentence on a defendant just because that defendant chose to exercise his or her constitutional right to go to trial rather than to plead guilty.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. That was not the nature of the trial judge's decision in
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NO, I am not asking about that case.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The answer to the question, can you penalize someone for exercising a constitutional right, should be evident. One cannot be punished for exercising a constitutional right. That is not what happened in that case. The question was the degree of clemency, the degree of leniency, the court was going to give. 296 The judge did something extraordinary in that case. He applied the guidelines markedly in the defendant's favor. He gave the defendant credit for acceptance of responsibility, which immediately knocked the range down under the guidelines from a range of 151 months to 171 months, to one of 121 months to 151. He gave the defendant 6 additional months—to make the sentence 127 months instead of the very lowest that it could have been, 121 months— because the defendant accepted responsibility late. The trial judge thus took into account the point in the process at which the defendant accepted responsibility. And that is all that case was about. That was all the majority held. The court held that within the context of giving a defendant credit for accepting responsibility for the crime he committed, the district judge could take into account that the man had accepted responsibility late—not on day one, but only after a jury had found him guilty of the crime as charged. That is what that case involved. It is easy to mischaracterize what the court ruled, but I believe my description is accurate.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am not trying to go into that case. I am asking the more broad general question of whether or not it is improper for a trial court—forget about that case—to impose a harsher sentence on a defendant who chooses to exercise his or her constitutional right to a trial rather than plead guilty?
Ruth Bader Ginsburg
Nominee
(D)
Judge GiNSBURG. If you are asking the question, Can you penalize someone, punish someone for exercising a constitutional right? We have constitutional rights and one can't be punished for exercising a constitutional right. Otherwise, the right is not real.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But you haven't answered.
Ruth Bader Ginsburg
Nominee
(D)
Judge GiNSBURG. You can't punish someone for exercising a constitutional right. If you punish someone for exercising a constitutional right, that person has no right.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. OK. Thank you. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. Thank you. We will now, with your permission, Judge, break for lunch until 2:15, if that is OK. [Whereupon, at 1:13 p.m., the committee recessed, to reconvene at 2:15 p.m., this same day.] The CHAIRMAN. The committee will be in order. Judge, welcome back. We are starting a few minutes later, because there has been a very controversial vote on the floor of the Senate, causing some Members to continue to engage in the debate, and that is why some Members are not here. Thank you. I hope you had a chance at least to get some lunch. I now yield to our distinguished colleague from the great State of Iowa, which I do know well and have great love and respect for.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Senator GRASSLEY. YOU notice how I only had to remind him once about Iowa.
Senator Hank Brown (CO)
Senator
(R)
Senator BROWN. I think he was referring to the State, not the Senator.
Senator Joe Biden (DE)
Chairman
(D)
The CHAIRMAN. That is correct. I do like the Senator from Iowa.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I was referring to the State, as well. 297 In your 1986 article, "Interpretations of Equal Protection Clause," in the Harvard Journal of Law and Public Policy, you wrote that the greatest figures of the Federal judiciary "have not been born once or reborn later liberals or conservatives," and then you went on to say: They have been independent thinking individuals with open, but not drafty minds, individuals willing to listen, and throughout their day to learn. They have been notably skeptical of all party lines. Above all, they have exhibited their readiness to reexamine their own premises, liberal or conservative, as thoroughly as those others. Now, this may sound like a softball question, but I would like to ask you, from the standpoint of your years experience of judging— and the reason I ask is just to see how you have evolved as a judge—can you tell us whether any of your views have evolved or changed over time? I don't want a lot of examples, maybe one example would be enough. Is there something on which you have changed a particular view of yours. How did it come about and what was the view that changed, and why did it change.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Grassley, I am glad you quoted that, because it is my creed. When I made my opening remarks, I quoted from Judge Learned Hand's 'The Spirit of Liberty." He said "it is the spirit that is not too sure that it is right." When I was asked to enumerate the Justices I admire most, I left out some jurists one might think should be on that list; I did so because they were sometimes too sure they were right. An example that comes immediately to mind is in the field of civil procedure. Civil procedure is a subject I taught for several years. When I graduated from law school and was clerking for a Federal district judge, I was absolutely sure of the answer to this question: Does a Federal district court have authority to transfer a case, although the transferee court lacked both subject matter and personal jurisdiction? I had several conversations with the judge for whom I worked. It was, in the end, his decision, but the decision he made coincided with my own view—that the court was powerless to do anything but dismiss the case. The second circuit affirmed the dismissal. Then the Supreme Court reviewed the decision and held that the lower courts got it wrong. We have one Federal court system. A court without subject matter and personal jurisdiction could indeed transfer the case to another Federal court that had authority to hear it. That was the Supreme Court's decision. I have come to recognize over the years that my thinking was too rigid, that the Supreme Court was indeed right in its view of the flexibility of the Federal court system. So that is an example that comes immediately to mind. I suppose it does, because procedure is the subject I taught for 17 years.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you. I was supposed to inform Senator Biden whether or not I wanted 15 or 30 minutes, and I want to claim 30 minutes for my round. I want to go on to something that you discussed briefly with Senator Simpson, and that was the issue of recusals. There was some confusion about the number of cases in which you were automatically recused by the clerk of the court of appeals. Senator Simpson thought it was 251, and Senator Biden's staff advised Senator 298 Leahy it might have been 108. My count of the list in your questionnaire shows that it was a little more than 300 cases involving more than 25 firms on the list. That is in addition to your 11 sua sponte recusals. And while you recalled Tuesday that many of those recusals resulted from your minor child's ownership of one share of El Paso Natural Gas Co., I want to bring to your attention that none of the cases listed in your questionnaire appeared to involve El Paso Natural Gas. If I am wrong on that, you can correct me. Rather, the cases that were listed on your questionnaire involved the major American firms on your recusal list, which I understand from your answers Tuesday are clients of members of your family who practice law. I am sure that you will agree that it is important that we clarify this matter, to make certain that conflicts of interest will not substantially impair your ability to perform your duties as an Associate Justice. I don't have any question that you will be impartial in how you make a decision, but I want to ensure your recusals don't impair the work of the Court. As you noted Tuesday, recusals are far more significant on the Supreme Court, where every case is heard by nine Justices sitting as a full panel, as opposed to the District of Columbia Circuit, where any of the more than a dozen judges on the circuit court can be selected by the clerk to make up the three-judge panel that decides a case. In close cases before the Supreme Court, the recusal of one Justice can substantially undermine the ability of a court to lay down a clear decisive ruling. If confirmed, will you continue to recuse yourself from cases involving the firms listed in your questionnaire?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. No, Senator Grassley, and I will not for this reason. The great bulk of those cases would not be on my recusal list next year in any event, no matter what court I served on. Let me explain. The latest count I got from my chambers, and they checked last night, was 208 automatic recusals, 11 separately listed. You are quite right in reporting that, indeed, it was not my son's two shares of El Paso Natural Gas. In fact, in my early years on the court, there were only four automatic recusals. The great bulk came starting in 1984. A single corporate group my spouse represented from 1984 until this spring accounted for 111 of the 208 cases. That representation is now completed. That representation meant that I tied for second place in the number of recusals listed for judges on my court. Eliminating that group, I would be at or probably below the middle point. But I can represent to you that the representation in question is indeed completed, so that the single corporate group that accounted for 111 of the 208 recusals should no longer be on my recusal list.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. If the Senator from Iowa will yield on my time, yesterday there had been a question on this, or 2 days ago during my discussion with Senator Simpson about recusals. I was acting chairman at that time and I was given by the chairman's staff an incorrect number which was the result of a typographical error. Now I am told the actual number was 208, not 108, as I had represented from the staff printout, and approximately 100 of them 299 were on matters relating to AT&T, a company which the Judge's husband no longer represents, if I am getting the correct numbers now.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, I was reluctant to mention the name of the corporate group, but
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I know, but we have had some question of this and a number of Senators have raised questions of whether the accurate numbers were given. That is why now the chairman has asked me to note that the correct number is 208. I also understand your husband no longer represents that client.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. That representation is indeed completed.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I think your answer is satisfactory to me. But I did have a concern, because, looking at those same firms and their involvement in appeals to the Supreme Court over a period of time, the LEXIS search found about 300 cases. Basically, what you are saying now is that there isn't any involvement by any member of your family with a large number of those firms, so there wouldn't be a need for recusal. Is that your answer?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. That's correct, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you very much. If I could go on to something that, to a nonlawyer like me, is a little more complicated. It involves a decision that you were involved in, United States v. Jackson. In that case, the defendant was indicted under the Armed Career Criminal Act. You were called upon to determine whether a part of the statute either enhanced an existing criminal penalty for repeat offenders, or, instead, created a new separate offense. You noted that the statute created a new offense, and Jackson's conviction would have to be thrown out, because the grand jury did not indict him for that new offense. You found the statutory language to be ambiguous, but you did not apply the rule of lenity, where ambiguous criminal statutes are supposed to be construed in favor of the defendant. Instead, you upheld the conviction and, in so doing, it is my understanding, you relied to a great extent on the statute's legislative history. To what extent should legislative history be used in interpreting criminal statutes? While everyone is presumed to know the law, how is a potential criminal to fairly foresee that a court will convict him based on legislative history, rather than how he might read the statute?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The meaning of a statute we would always like to get, Senator Grassley, from the text of the statute itself. Sometimes that meaning is not clear and we must resort to construction aids. Aid sometimes comes from legislative history, sometimes from an agency interpretation. I do not have the case that you mentioned in the front of my mind, and I would have to look at it to refresh my recollection. But I am certainly conscious of the need for fair notice to anyone in the criminal justice system.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Why don't we do this, since it is not familiar to your mind, we will get you a copy of it and then you can answer at a later time in another round for me. Would that be OK?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. That is fine.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I would rather have you answer as thoroughly as you can. 300 I was here when Senator Biden talked about unenumerated rights. I was not here yesterday when the issue again came up, but I am glad that the chairman clarified whether the Constitution protects the right to marry. It doesn't protect the right to marry whomever a person chooses to marry. The Supreme Court has said the Constitution protects against State interference with the right to marry, if that State regulation is based on race. But the State can and does regulate the right to marry. For example, bigamy laws exist, and protection against people marrying their siblings exist. So you agree with Senator Biden's clarification, don't you, that the Constitution doesn't protect a right to marry whomever a person wants?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, I agree with that. That has been recognized even in the face of a free exercise of religion challenge, as the bigamy case you mentioned demonstrates.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Similarly, you know that there is no unenumerated constitutional right to get a job, assuming no race or gender discrimination. The Supreme Court has never held that anyone has a right to a job, and it is a fundamental part of constitutional law that protections against race and gender discrimination apply only to government actors, not to private employers. If the Constitution itself banned job discrimination, then there never would have been a need to enact the civil rights statues, which are based on the congressional power to regulate interstate commerce, and not upon section 5 of the 14th amendment. So you agree that the Constitution does not protect the right to a job, free of race or gender discrimination?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, Senator Grassley, the Constitution is established by and for the people through the people's representatives. The individual rights recognized in the Constitution are phrased as restraints on Government. The Constitution says what Government may or may not do. There is a conspicuous exception, an instance in which the Constitution directly applies to persons. That instance is the 13th amendment, which says that slavery shall not exist, slavery or involuntary servitude shall not exist in the United States. That provision governs everyone in these United States.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. But you are in no way saying that that confers a right to a job?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. In our country, as opposed to some newer democracies, we guarantee directly against Government intrusion into fundamental civil and political rights. Economic and social rights are in the charge of the legislature. Our Constitution does not guarantee a right to work, a right to be fed, a right to be clothed, a right to have decent shelter. Our society is as respectful of those rights as any I know, but the respect comes through measures passed by the legislature, and not in the form of a constitutional command that courts are capable of implementing.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Judge Ginsburg, you have declined to talk about the constitutionality of capital punishment. You have distinguished your discussions about abortion from your unwillingness to talk about the death penalty on the basis that you haven't written about or spoken about capital punishment. I hope I understand that that was your answer before. So I want to bring to your atten- 301 tion that during your tenure at the ACLU, you wrote an amicus brief in Coker v. Georgia, arguing that the death penalty for rape was not constitutional. You have written, then, haven't you, on the death penalty?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I did not write on the general question of the constitutionality of the death penalty. The Coker v. Georgia (1977) brief said the death penalty for rape—where there was no death or serious permanent injury, apart from the obvious psychological injury—was disproportionate for this reason: The death penalty for rape historically was a facet of the view that woman belonged to man. First, she was her father's possession. If she suffered rape before marriage, she became damaged goods. The rapist was a thief. He stole something that belonged first to the father, then, when the woman married, to her husband. Once raped, a woman would be regarded as damaged goods. We have seen that phenomenon recently in tragic incidents in many places in the world. Women in Bangladesh, for example, were discarded, were treated as worthless because they had been raped. That was what prompted my position in Coker v. Georgia. That is the whole thrust of the brief I co-authored. We emphasized that rape was made punishable by death because man's property had been taken from him by reason of the rape of his woman. That was the perspective that informed the Coker v. Georgia brief.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Again, I am not a lawyer, so when I refer to something, if you want to tell me that I am missing a point, feel free to do it. But on page 22 of that brief, a heading, underlined, says the death sentence for rape is impermissible under the 8th amendment because it does not meet "contemporary standards regarding the infliction of punishment and is inadvisable since it diminishes legal protection afforded rape victims." It seems to me it deals directly with the issue of the eighth amendment.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. "Diminishes legal protections afforded rape victims." Senator Grassley, I urge you to read the entire Coker v. Georgia brief. I think you will find it to be exactly what I represented it to be. One of the reasons why rapes went unpunished, why women who had been raped suffered the indignity of having the police refuse to prosecute, was statutes of that order.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Please understand that the reason I brought it up wasn't that I want you to tell me any more than you were willing to tell other people on your position on the death penalty. I brought it up because you said you hadn't written on the subject, and I found something that you have written on the subject.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I have written on the subject of women who have been raped and society's attitude toward them. Coker v. Georgia fits into that category. My statements regarding that case should not be taken out of context to say or imply anything about any subject other than the one addressed in that brief. The position developed in the brief was that the death penalty for rape, the origin of that penalty and the perpetuation of it, was harmful to women. Far from resulting in conviction
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, let me ask you this, then, separate from the issue of the extent of your writings: Did Coker, outside the fact 302 that it outlawed capital punishment in the case of rape, solve the purpose that your brief intended to solve?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. It was a contribution to the proper way to look at this terrible crime. It was a contribution to the end of thinking of women as damaged goods because they had been raped. That is what I think about it.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. If I could go on to another point, yesterday in conversation with Senator Cohen, there was a discussion of whether judges should or should not follow opinion polls. In light of that statement, I wonder what you think of the approach to constitutional decisionmaking espoused by the authors of the joint opinion in Planned Parenthood v. Casey. And I don't want this to be a discussion about abortion. That is not my point. I want to quote: Where in the performance of its judicial duties the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. Do you agree that Justices should consider the political dimensions of controversial cases, or is that the kind of constitutionally unprincipled "pleasing the home crowd" that you have criticized?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. What those three Justices said in the Casey (1992) case I think has to be taken in the context of what they said before. They were talking about the importance of stare decisis, of precedent, in a judicial system. What I regard as most important, Senator Grassley, is what those Justices said just before the line you read. They talked about stability in the legal system. Was a precedent plainly established? How was it working in society? Had reliance interests been built up around it? There is an expansive discussion of the principle of stare decisis in that portion of the Casey opinion. The sentences you read can't be detached from the three or four pages that go before it. The part that goes before stresses the reliance interest built up around a precedent, the generation of women who have grown up thinking that Roe v. Wade (1973) is the law of the land. That is the central part of the stare decisis discussion, and not the very last part, the portion you read. To concentrate on that last part, I think, diminishes what is a very satisfactory, very complete discussion of the principle of stare decisis. Those last sentences seem to me not nearly as impressive as what went before. The discussion of stare decisis in the central part of the opinion is excellent and means much more than that last paragraph. Taken in isolation, the last paragraph might be misperceived. I think it must be read in context. I might express, regarding judicial opinions, the same things I say about legislation. The first rule is read, the next rule is read on, and the third rule is read back. That is my view of the portion of the Casey opinion about which you inquired. I can't give that paragraph a mark apart from what precedes it. Taking it together with what precedes it, the whole is a very impressive statement of the doctrine of stare decisis.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, without commenting on Casey or Roe or any other case, could you just simply comment whether judges 303 should, in any way, consider the effects of their rulings on external political disputes?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I have said here and in several other places that a judge
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Should they be drafting political compromises?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. A judge is not a politician. A judge rules in accord with what the judge determines to be right. That means in the context of the particular case, based on the arguments the parties present, in accord with the applicable law and precedent. A judge must do that no matter what the home crowd wants, no matter how unpopular that decision is likely to be. If it is legally right, it is the decision that the judge should render. And I also said what a judge should take account of is not the weather of the day, but the climate of an era. The climate of the age, yes, but not the weather of the day, not what the newspaper is reporting.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. YOU addressed the standing issue to some extent yesterday with Senator Heflin, and you have talked with a number of Senators about deferring to Congress as you decide cases. I would like to talk about one case, that was a dissent of yours, that covers both issues. In Dellums v. Nuclear Regulatory Commission, you called for deference to congressional predictions regarding the South African sanction laws. The plaintiffs were trying to sue the NRC over the importation of a commodity that wasn't specifically mentioned in those sanction laws. They argued its importation violated the law and, therefore, prevented a quicker end to the apartheid government. The majority found that they lacked standing. You dissented. By deferring to congressional predictions, weren't you actually expanding the scope of constitutional standing and Federal court jurisdiction? And isn't there a line to be drawn between what you might have to look for that we just talked about, legislative history, congressional intent, and what are congressional predictions?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Grassley, let me try to explain the Dellums (1988) case. The constitutional requirement for standing was that a person show injury in fact. Among the plaintiffs in that case—the one on whom I concentrated—was an exile, an outcast from his country, a South African black who had been banned from his native country because of his political activity. Our Congress, you, had enacted an embargo on certain commodities from South Africa. In doing so, you said you thought that putting this kind of pressure on the South African Government would hasten the time when apartheid would end. When apartheid ended—or when it began to break down—that man could return to his native country. He said he was injured by his outcast status. You said you were pursuing a policy designed to promote the end of apartheid, the day that this man would no longer be an outcast from his country. I was following the constitutional requirement that to have standing to sue one must suffer an injury in fact. This man was claiming an injury, and I was relying on your factfinding that the 304 measure you took could hasten the day when his injury would end. That is the nub of my dissenting position. The court majority disagreed with me and said he didn't sustain an injury in fact. I thought he did, and I relied on your factfinding that the reason you put an embargo on South Africa was not to do something futile, but to hasten the day when apartheid in that country would end. On that day, this man would no longer be an exile from his native land. That was my reasoning in the Dellums case. You asked me before if I stand ready to reexamine my own decisions. If you asked me in this Chamber today: Do I think I was right in taking the position that the plaintiff in Dellums suffered an injury in fact within the meaning of article III of the Constitution, and that Congress had recognized his injury would abate as a result of the embargo? I thought my decision was right then, and I think it is right today, and I stand by my dissent in the Dellums case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. AS a taxpayer, I would like to have standing in court based on a prediction Congress makes. In fact, we are in the process of making a prediction right now that 4 or 5 years from now we will have $500 billion less deficit than we have now. And if we don't meet that target, can a taxpayer sue me—not sue
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. A taxpayer has standing
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Would it have standing in court?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. No. The answer is "no." Under current precedent, a taxpayer has standing to challenge only one thing, and that is the State's involvement in establishing a church. A taxpayer— you are a taxpayer, and I am a taxpayer, and we have snared grievances about what the Government does with our money. But the plaintiff who had been declared an exile, an outcast from his native land, was not a taxpayer who shared with the generality of the public a common grievance. He was not complaining about the way the Government was spending his tax dollars. The cases are simply not comparable. There is only one category of case in which a taxpayer can sue. The paradigm case, under current precedent, is Flast v. Cohen (1968).
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, I was hoping that I would maybe have a friend on the Court who would want to overturn Frothingham. My last question: In response to questions by Senator Pressler and Senator Moseley-Braun yesterday, you stated basic agreement with the Court's general holding in Lucas v. South Carolina Coastal Council that a regulatory taking which denies an owner of all economically beneficial uses of her property violated the fifth amendment. Now I, of course, understand your unwillingness to elaborate on Lucas because there will be many, many more cases before the courts. But I would like to see if you could help me understand the rule of Lucas. The Court said that when a regulation leaves an owner with no economic use of her property, the land has been taken for the benefit of the general public just as if the Government has physically occupied the land. Do you think that what I just said was an accurate statement of the holding in Lucas? 305
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. The Court said, just as you summarized it, that the Government cannot take, but it may regulate. There is a point at which the regulation is so enveloping that it becomes a taking. When the Government acts so as to deprive the owner of all of the value of the land, as the Supreme Court said in Lucas (1992), that is tantamount to a taking and it must be compensated. The Lucas case itself went back to the lower court to determine whether that was, indeed, the case—had the owner been deprived of all the economic value of the land. But you are also right, Senator Grassley, that the point at which regulation becomes a taking is something that will be determined case by case. Many cases will come before the Court calling for development of the doctrine of the Lucas case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Judge Ginsburg.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY [presiding]. Thank you, Judge. You can see how these hearings have progressed. Once again, the back-benchers come in to chair the hearing. I would hope that you feel complimented by that lack of a full-court attention up here. I suspect it indicates more approval than disapproval. Earlier this morning, I know that you and Senator Hatch had a dialog regarding Judge Thomas, now Justice Thomas' confirmation hearing. I had asked him some questions about Roe v. Wade. Both the questions and answers became a matter of some of the debate subsequently in Justice Thomas' confirmation hearings. Without going further, I just want to make sure that when somebody dusts off these records they get it fully and accurately, and so I will place in the record at this point the transcript of the series of questions I asked then-Judge Thomas regarding Roe v. Wade and his responses to them. That is not directed as a question to you. I know you went through that this morning. [The transcript follows:]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Yesterday you and I went through a number of very specific questions and you gave what I thought were, in the appropriate instances, some very specific responses, and in others you felt that you could not respond based on issues that may come before the Court. This morning around 1 or 2 o'clock, I was watching a replay on television of your responses to my questions and your responses to a number of other Senators' questions, and making notes about it. I was thinking about what I might do today, and I would probably be a little bit less specific, but use the advise and consent process for what I have often felt it should be: a way of looking into your jurisprudential soul, or actually a way for the country to do so. I realize that, as is appropriate, people pay not so much attention to who might be asking the questions, but, rather, to what you say, and it really is a way for the American people to know just how you think. So let me ask you this: Judge, you have spoken eloquently of the reaction you had when you first got the call from the President, when he asked you if you would accept this nomination. You spoke eloquently in the Rose Garden. You have been a judge for a number of years in a prestigious court. You have certainly been a student of the Supreme Court from the time you were in law school, and you practiced before it, had to rely on cases from it in deciding how you might vote on individual cases. Now you have had to think, I would assume, a great deal from the day the President asked you to accept this nomination, right up to this moment, just what you might or might not do as a Supreme Court Justice. In that, you have 200 years of history of the Court. Could you give me some of the cases you consider the most important Supreme Court cases, taken from whatever era, time, recent or not, just some of those that mean the most to you and why?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. To start from the beginning, Marbury v. Madison (1803) established judicial review for constitutionality of other great decisions of the Marshall Court era, I might mention, as signal, Gibbons v. Ogden (1824). When I recited from the Pledge of Allegiance before, I said "one nation, indivisible." I would put Gibbons v. Ogden in the one nation camp. Proceeding to our times, I would list the great dissents of Holmes and Brandeis in Abrams (1919) and Gitlow (1925), and Brandeis' concurring opinion in Whitney v. California (1927). People think free speech was always secure in this country. It really wasn't. That is a development of our current century, reflected in those great dissenting opinions that are now well accepted. But they were originally stated as dissenting positions. Brown v. Board of Education (1954) must be on any list. That gives you about half a dozen.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, let me go to the dissents for a moment, because you and I talked about first amendment rights and freedom of speech before. How have you seen the evolution of our free speech rights in this country? Obviously, it is stated in the Bill of Rights from the beginning. But as you said, it has changed, evolved. We saw censorship during the Civil War and President Lincoln's time, everything from the suspension of habeas corpus 313 and suspension of freedom of speech. We have seen attacks on it that have been either direct government attacks or responses in fear. The McCarthy era comes to mind, when there were truly attacks on the first amendment. Do you see that right as still evolving in this country?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Free expression was an ideal from the start. The Alien and Sedition Act, early on, severely limited free speech. That law was never declared unconstitutional by the Supreme Court, but it has been overturned by the history of our country since that time. The idea was there from the beginning, though. I mentioned the Revolutionary War cartoon, "LIBERTY of speech for those who speak the speech of liberty." The idea was always there. The opposition to the government as censor was always there. But it is only in our time that that right has come to be recognized as fully as it is today. The line of cases ending in Brandenburg v. Ohio (1969) truly recognizes that free speech means not freedom of thought and speech for those with whom we agree, but freedom of expression for the expression we hate. New contexts undoubtedly will arise. But everyone accepts that the dissenting positions of Holmes and Brandeis have become the law. That is where we stand today.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you consider Brandenburg as one of the great milestones in the Court's history?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I certainly do, yes. I think Brandenburg was a 1969 decision. The McCarthy era was well over by then. There were many brave judges in the period of McCarthy, including Learned Hand, who wrote one of the great early decisions in the Masses (1917) case. There were some outstanding decisions of Justice Harlan in that very difficult time for our country. But I think Brandenburg is not the least controversial now.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I remember very well when it came down. I was a young prosecutor at the time in Vermont, and I remember some of the discussion there. We have gone through an interesting time during the McCarthy era, when at the University of Vermont, the oldest land grant university, there was a question of whether a professor was loyal enough. Our State's largest newspaper questioned his loyalty, actually trying to get him suspended. The same newspaper now, to its credit, stands up very strongly for free speech. But it shows just how the evolution could be. In fact, it was a Senator from Vermont, Ralph Flanders, who was probably the greatest Vermont Senator of the century, who stood up and introduced a resolution condemning Senator McCarthy on the floor of the Senate, and finally started to bring to an end what was a very sad and I think sorry time in our history. I wonder where democracy might be, had we not seen this right continuously expand. It is a momentary contraction, but I believe you would agree with me on this, during our 200-year history, it has continuously expanded, in the aggregate, it hasn't contracted.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think we have been a model for the world in that regard. Recall the words from Ballard for America, 'The right to speak my mind out, that's America to me." It is one of the great things about our country. 314 I was a student at Cornell during the McCarthy era. In those days, most students just wanted to make their own way in the world, and were not politically active. I had a wonderful professor, his name was Robert Cushman, he was one of the teachers who was most important to me. He was in the government department, and I worked for him. He had me read Alan Barth. I scanned issues of "Red Channels" as he suggested. That way, I came to know about what was going on, about the people banned from the entertainment business, because they were considered, if not red, then pink-tinged. That was an indelible part of my upbringing. A great teacher forced me to think about the times in which we were living, when I really didn't want to.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. My parents ran a small weekly newspaper back in Vermont and they ran a printing business, and I recall, growing up, being encouraged to read whatever I wanted. Read whatever you want, but just read. It is not bad advice for any parent to give to their child, especially today. But I am struck by the fact that, as various countries have moved toward democracy, from their new parliaments, they send people to our country to visit with Members of the Congress or State legislatures, and invariably with every single group that has come to my office, we have ended up in a discussion of how we have allowed free speech, an expanse of speech and difference of opinions, and how struck they have been by that, because so many of them have come from countries where there is anything but. There is a controlled press, there is controlled, allowable speech. What I have always told them is I felt that in our first amendment we really have the whole groundwork for democracy. We have a freedom of religion or not to practice a religion, whichever you want, and freedom of speech, which guarantees diversity and diversity guarantees democracy. I find now that we have the question of does it expand further in new technologies. I am chairman of the Technology Subcommittee here, and one scholar suggested a new amendment to the Constitution explicitly to extend constitutional freedoms including freedom of speech and also search and seizure protections to new technologies, computer technologies, I guess E mail and all the rest. Do you think we need a change in the Constitution, or do you think we can work it within the Constitution we have, as we deal with computer and other electronic technologies?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I think that our over 200-year-old Constitution has been able to deal with more difficult things than new computer technology. But I would like to consult my daughter on that question, because she is the copyright expert in our family.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, we all accept easily that political speech is protected. Again, just to expand a little bit on what we discussed yesterday about scientific speech, does it get the same kind of protection?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator, I am not sure I understand what you mean by scientific speech.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. If somebody is writing in an area of science, for example, do they have the same protection as if they were speaking just on political issues?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. I can't imagine why not. C 315
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What about in the area of entertainment?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Now we are getting into more slippery territory. It depends on what kind of entertainment, I suppose. The Supreme Court has a series of decisions about speech that is in the netherland between fully protected speech and unprotected speech, speech within the first amendment, but not entitled to the same level of protection as other speech. The Supreme Court has made decisions about adult movie theaters that can be zoned for the safety of the neighborhood. A municipality can decide to spread them out so they won't be clustered, or can put them all together in one combat zone. There is a difference between the degree of tolerance for such expression and the greater respect accorded political speech. Then, as you know, there is a category of speech that is unprotected by the first amendment, a category called obscenity. There is also a category of speech that is not out of the ballpark, but is subject to regulation, called indecent speech. That is an area that I can't talk about in specific terms, because it is one that has come before my court, and is coming before the Supreme Court in connection with broadcast regulation. But I recognize that there is that category of speech that does not get the full protection of the first amendment, but is not left out entirely.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Political speech, that truly you feel has absolute protection?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. It has the highest level of protection.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Surpassing all other kinds of speech?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, we have had a lot of discussion here about the impact of mandatory minimum penalties on the judiciary. We have passed a lot of laws in the Congress. We never have Members of the Congress stand up and say they are in favor of crime. Obviously, we are not. But usually in a spirit of showing just how much we disfavor crime, we pass laws to say people shan't do things, we say we will end crime by doubling the penalties or tripling the penalties. Usually the word doesn't get to the criminal, but it does make us feel better and it is nice at campaign time. But mandatory minimum penalties, some of which I liked when I was a prosecutor, have now expanded greatly. Judge Billings, a Federal judge I respect very much in my State, has written that this type of statute denies that judges have a right to bring their conscience, experience, discretion, and sense of what is just into the sentencing procedure. Now, you must have had discussions of this issue both in your own court and at judicial conferences. How do you feel about the mandatory penalties? Are they putting too much discretion over sentencing in the hands of prosecutors, and not in the hands of judges?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Senator Leahy, there was recently published a very intelligent comment by Judge Weinstein of the Eastern District of New York concerning mandatory sentences. He recommended appointment of a commission to do a careful study of how they are working out in practice. The perception is very strong among many judges—I know this from conversations we have had at meetings of judges—that it is 316 deceptive to think discretion has been removed. It has indeed been removed from the sentencing judges, because mandatory minimums don't give the judges any choice. If there is an indictment for x amount of drug y and a conviction for that, then the sentence will be 10 years mandatory or 5 years mandatory, based solely on the character of the drug and the weight that the defendant was charged with distributing. So the judges' sense is that the discretion has been transferred from them to the prosecutor, who can choose to indict for a lesser weight than the weight actually found at the time the defendant was arrested. There is much concern that these mandatory minimum sentences are transferring discretion from the judge to the prosecutor and that they may be deceptive in other respects, because the likelihood of apprehension—not the sentence length— may be the strongest deterrent. If someone is aware that the chance of being caught is very high and the sentence is sure, even if it is shorter, that awareness probably would be the greatest deterrent you could have.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I remember when I was a prosecutor, I used to try to point out to legislative bodies—they say simply that their idea of good law enforcement is to double the penalties—if you have two buildings side-by-side, two warehouses, one with a very good burglar alarm system on it and one without, which one gets broken into? The penalty for breaking in is the same for either one of them, but obviously they are going to break into the one without the burglar alarm system, because you are not going to get caught or you are less apt to get caught. I agree with you, it is the fear of apprehension, and then a prosecution, but also it is finality, which goes into a whole other issue. For whatever it is worth, I think that we have got to go back and review this whole question of mandatory minimum sentences. I think we have gotten too far down the road with it.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. There has been enough experience with mandatory minimum sentences by now to make that kind of close look very valuable. I am sure the Federal Bureau of Prisons, too, would have a large contribution to make, to tell the ramifications of a burgeoning prison population. We went from a system where a sentence was effectively one-third of the time imposed; you served onethird of your time and then you were up for parole. Now there is no parole. Your sentence is what you serve. So I think the time has come when a study, a close look at how mandatory minimums have been working would make a contribution of great value.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Judge, when you came before our committee before for confirmation to the court of appeals, we could ask you questions about Supreme Court cases and you could say, as you did in one form or another, well, of course, if the Supreme Court has ruled that way, as a court of appeals judge, I am bound by it, stare decisis, and so on and so forth. You don't have those fetters if you go on the Supreme Court. I looked back, and Justice Brandeis, in Burnett v. Coronado Oil and Gas in 1932, talked about stare decisis, and he said, "In cases involving the Federal Constitution, the Court bows to the lessons of experience and the force of better reasoning, recognizing that the 317 process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." I remember reciting that at different times when I was before our State supreme court as a young lawyer, when I wanted them to change past decisions. Would you agree with Justice Brandeis, that the lessons of experience can prevail in cases involving the Constitution?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, I do, but I also agree with something else Justice Brandeis said in that very same opinion. He liked it so much, that he said it twice. Because I was misquoted in my quotation from Justice Brandeis by the press this morning, I would like to repeat it. It says: "In matters of statutory interpretation, it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true," Brandeis continued, even when the error is a matter of serious concern, provided correction can be had by legislation. There he was making the distinction between construing legislation and constitutional interpretation. The press missed that essential point by stopping the quotation midstream.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. They won't miss it twice, Judge. [Laughter.] Do you agree with that? Do you take that as your philosophy?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. The statement that Brandeis made in Burnet v. Coronado Oil (1932) and again in DiSanto v. Pennsylvania (1927), yes. I have said so many times in print, quoting from Justice Brandeis. I believe, too, that stare decisis has an important role in constitutional interpretation. With the possible exception of the passage Senator Grassley read, I associate myself with what was said in Casey about settled expectations. I think, in the case of Brandeis, the overruling of Swift v. Tyson (1842) in Erie v. Tompkins (1938) is illustration of when stare decisis must give way. One doesn't lightly overrule precedent even in the constitutional area. But Brandeis made an obvious point, although he said it so well. Correction can come by legislation if the Court messes up on a matter of statutory interpretation. That often can't be done when the question is one of constitutional interpretation.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, but even that must have some changes. For example, you could reverse an obscure technical decision of the Securities and Exchange Commission. I don't mean to suggest they are obscure or technical, but say some minor IRS point or something like that. That is one thing. Or you can let it stand even though you don't think it creates justice. Or you could overturn a case like Brown v. Board of Education or Taylor v. Louisiana.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Taylor v. Louisiana (1975)? Heaven forfend. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, I thought I would just—it is getting late in the afternoon. I wanted to throw that one in. But you see what I am getting at. Can the Brandeis test always be held? Sometimes the consequences might be horrendous. Is there a point where the circumstances are such that you have to strike out differently?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. No doubt, and I think Brandeis was saying that himself. He said this is commonly truly, not this is always true. 318
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. HOW much weight do you put on the extent to which a holding has guided and been relied upon by the public? Is that something that must weigh heavily on you if there is a body of law that seems so settled that it has been well relied upon? I am thinking now of the kind of thinking that must go through a Supreme Court Justice's mind if they are going to overturn a past decision of the Court. Are time and acceptance major factors to be considered?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Yes, both are. How it has been working? What expectations, what reliance interests has the decision generated? Those are major factors.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Changed circumstances? A case that is settled in one era looking different in another?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes. The period could even be 10 years. Although I think the Supreme Court wrongly decided the women's jury service issue in 1961, by the time of Taylor, in 1976, there was a societal change that the Supreme Court came to understand. True, it took 100 years, practically, for appreciation of the changing position of women in society to be comprehended. But in the Taylor (1975) case, it finally was comprehended. Taylor upset what had been a unanimous precedent the other way.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Then, lastly, Judge, what if you as an individual hold as your own moral belief that the earlier decision was wrong? Does that go against all—what weight does that have against, for example, some of the other things we have talked about—continuity, acceptance?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Well, that is why we have the law. That is why we have a system of stare decisis. It keeps judges from infusing their own moral beliefs, from making themselves kings or queens. That accounts for my answer to a question I have been asked here a few times. How do you feel about this or that? I responded that how I feel is not relevant to the job for which you are considering me.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Would it be safe to say, however, Judge, that it can never totally disappear from your consideration?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, that 4s certainly true. I have to be aware of it. I must know that it is there and guard against confusing my own predilections with what is the law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you very much. I see my friend from Maine, Senator Cohen, is here, and I yield to him.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Thank you, Mr. Chairman. Let me explain, Mr. Chairman, that I have been given sort of a Hobson's choice. If I agree to be brief, we will continue with me. If I am not going to be brief, then we will take a break, and I will probably lose my turn.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I am always the last to hear these things, Senator Cohen.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I will try to finish within 15 minutes. Is that satisfactory?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think I can go 15 minutes, not a half-hour.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Just so I fully understand, we will go until 4 o'clock. Is that OK with you?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Yes, I think I can manage that all right. 319
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. I will try and compress what I was going to say, and it may be more effective in that fashion, anyway. On the way out during the last break that we had over lunchtime, I was asked the question, in essence: Why are you, meaning the Senators, prolonging either the agony or the ecstasy, depending upon one's viewpoint? The fact is that nothing that you say, Judge, is likely to change the outcome of these proceedings, so why are we continuing? My response is that there is, nonetheless, a very important function that is being served by the attempt to explore these particular issues or cases with you. First, the general public, including us, I might add, is unlikely to ever see you in the^future except on a personal appearance perhaps at some forum. So it is important that they have some comprehension of exactly who is this individual we are about to hand this scepter of power to. It is a very important delegation of power to you as a future Supreme Court Justice. I think it is important that they have an appreciation of the depth of your comprehension and your competence and judicial philosophy and general viewpoints. Second, it allows us to explore and develop issues with you to perhaps sensitize you to some of the feelings that Members of the Senate will not be in a position to indicate to you in the future. We are unlikely to have any communication with you except perhaps on a purely social basis, and even that is likely to be remote. The third, more cynical reason is that many here would like to have more air time. But let me go quickly to the questions I have. I was curious in terms of your response to Senator Specter when he inquired about your article, the one you wrote saying that during the course of Judge Bork's confirmation hearing, the line between philosophy and votes tended to become blurred. Then you indicated today that the article was not necessarily a criticism of the committee but, rather, just a recognition of the morass into which one can step, and the blame should be placed squarely upon the nominee because you have an opportunity to say, Senator, I think that that is an inappropriate question and I am not going to answer it. What I gathered, however, from your testimony this morning is that as a general proposition, if you have written about a subject, if you have taught a subject, if you have lectured on a subject, even though that subject matter may come before the Court at some future time, you feel that it is legitimate to talk about it, for example, abortion rights, equal rights amendments or other types of things on which you have expressed a view publicly either as a judge or as a professor or simply as an advocate. Is that correct?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. If I have written something, either an opinion or an article, and you want to ask me about what I wrote, something you think should be clarified or questioned, then you can confront me with my writing. Yes, I think that is right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Even though a permutation or some modification of that issue might at some future time come before the Court. That is a fair area for us to explore.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Senator Cohen, I have asked you to judge me on the basis of my written record, and I have said what that record 320 contains. So, yes. I regard this hearing as in the nature of an oral argument where I can clarify what is in that written record. Now, it is true, as just occurred, that when one writes over 700 opinions in the course of 13 years, one must sometimes refresh one's recollection. One of your colleagues just said to me, well, in the case of United States v. Jackson (1987), you said such-and-so. Another of your colleagues said, in the Xidex (1991) case, where you were on the panel, the court unanimously ruled thus and so. In both instances, I had to refresh my recollection.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. All right. Let me go to the Goldman case that we have talked about so many times before. You joined Judge Starr in his dissent. The case originally was heard, and then there was a request made for a rehearing en bane, right?
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. In which case you wrote a very brief dissenting opinion from the majority of the appellate court that refused a rehearing.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. OK. This is the so-called yarmulke case that we have been talking about the past 2 days.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Judge Starr's dissent I think is important, and I am going to quote excerpts from it. He said: It cannot be gainsaid that the judiciary is singularly ill equipped to sit in judgment on military personnel regulations. In matters touching upon the exigencies of military affairs, the courts have wisely exercised the restraint and caution that befits the unelected branch of Government. Then he cited Justice Jackson in terms of Jackson's comments opposing the Korean conflict. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate [military] matters as the [military] must be scrupulous not to intervene in judicial matters. This is part of Judge Starr's dissent. He goes on to say, however, that The military's claim that flexibility generates resentment, whereas arbitrariness keeps the corps content is utterly belled, however, by Dr. Goldman's own experience in serving his country. He went on to say that Dr. Goldman has been required to render to Caesar far too much for far too little reason. I think you associated yourself with the eloquence of those remarks, but you went on to say that A military commander has now declared intolerable the yarmulke that Dr. Goldman has worn without incident throughout his several years of military service, and at least the declaration suggests callous indifference to his religious faith. That case went to the Supreme Court. By the way, Judge Scalia joined with you in that dissent.
Ruth Bader Ginsburg
Nominee
(D)
Judge GINSBURG. Joined with me, right.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. That case went to the Supreme Court, and the Supreme Court affirmed the military's position of denying Dr. Goldman the opportunity to wear the yarmulke that he had worn for 13 or 15 years. The issue has been resolved, however, because Congress subsequently passed an act. I am asking you this question because I would like to know your opinion. If Congress had reaffirmed by statute the regulations of the military relative to the wearing of religious apparel, would that have changed, in your judgment, the constitutional protection afforded to Dr. Goldman under the first amendment? In other words, Congress can enlarge the rights, but can it restrict them? What would be your conclusion if Congress were to statutorily incorporate the regulations pertaining to the prohibition against wearing a religious garment, for example?
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. If Congress had made a law in effect adopting the uniform code the service had at; the time of Simcha Goldman's case? If Congress had enacted the uniform code into law, then the case would have come to Court challenging that law instead of the uniform regulation, and the Court would have divided over the law, as it did over the regulation. It would have been—was it five to uphold the regulation? It would have been five to uphold the law. I imagine that the Court would have divided just the same way whether the uniform code came up in the form of a regulation or in the form of a law. Judge Starr was very clear that he would have dissented. My position for myself and then Judge Scalia was that this was a very important question, one that should be decided by the full Court. I did not feel at liberty to write an opinion because I was not on the original panel. I participated only at the petition for rehearing stage. I said we should rehear the case, and the full Court should be briefed on the issue. But on your question, I think that the Court would have come out the same way whether the challenged measure were a law or a regulation.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. In other words, Congress cannot
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think Congress can enlarge, but it cannot shrink.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. It cannot shrink. In other words, if the military were to pass a regulation and Congress incorporates that by statute, if the Court decides that infringes upon a fundamental right inherent in one of the amendments to the Constitution, the fact that we had incorporated that by statute would give it no greater weight. We can't restrict something that has been guaranteed by the Constitution. We can only enlarge.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. I think you can exercise your authority under section 5 of the 14th amendment or under the necessary and proper clause. There are many fountains of congressional authority to expand rights.
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. But we cannot restrict them in violation of the Court's interpretation of what is a fundamental right.
Ruth Bader Ginsburg
Nominee
(D)
Judge GlNSBURG. Not unless the Court is to stop being the last resort on questions of constitutional interpretation. Not unless we are to overturn Marbury v. Madison (1803). The people do have another resort. The Constitution can be amended. The Supreme Court can be urged to rethink its decision. 322
Senator William Cohen (ME)
Senator
(R)
Senator COHEN. Let me quote the language of the Supreme Court in