Today in 1993: Ruth Bader Ginsburg is confirmed by the U.S. Senate

August 3, 2012

Today in Legal HistoryMany legal commentators have noted a decrease in the willingness of Supreme Court nominees to provide candid answers to questions during their respective Senate confirmation hearings.

This unwillingness to respond is not linked to all questions asked, but more of those probing for the ideological views of the nominee.

In other words, Supreme Court nominees have become increasingly evasive about answering questions about how they will decide a specific issue (i.e. abortion, affirmative action, gay rights, etc) should it come before them while on the bench.

The reasons that nominees do this may be because it vastly increases their chances of nomination, or because they would like to view issues on a case-by-case basis, or, most likely, a combination thereof.

This practice was first labeled as the “Ginsburg rule” by Senate Republicans during Chief Justice John Roberts’ confirmation hearings, named for Justice Ruth Bader Ginsburg.

Although the trend began much earlier (probably during the confirmation hearings of Sandra Day O’Connor in 1981), Ginsburg unquestionably engaged in this same evasiveness during her own confirmation hearings in 1993.

However, the tactic was successful in assuring her nomination: she was confirmed by a vote of 96-to-3 after only four days of hearings.

Her confirmation by the Senate occurred 19 years ago today, on August 3, 1993.

Despite the relative ease of her confirmation (Roberts was confirmed by a vote of 78-22, and Justice Thomas by a very close vote of 52-48), Ginsburg has been a steadfast pillar of the Court’s liberal wing since she joined.

For example, less than three years after she joined the Supreme Court, she authored the majority opinion of 1996’s landmark United States v. Virginia that ruled as unconstitutional the male-only admission policy of the Virginia Military Institute.

Ruth Bader GinsburgAs the Court has become increasingly conservative, Ginsburg has continued to stake out and solidify the liberal dissent in bitterly divided cases.

More recent examples include 2007’s Gonzales v. Carhart and Ledbetter v. Goodyear Tire & Rubber Co, and 2009’s Ricci v. DeStefano, all of which were 5-4 decisions along ideological lines.

Ginsburg has also taken a more prominent role in the Court’s liberal bloc since the retirement of Justice John Paul Stevens in 2010.

A good example of this can be found in Citizens United v. FEC.

The case was decided before the retirement of Justice Stevens, who authored the Citizens United dissent.

However, Stevens had been retired for almost two years when American Tradition Partnership v. Bullock, “Citizens United, part 2,” was decided on June 25, 2012.

American Tradition Partnership was a per curiam summary reversal decision – a rarity in Supreme Court jurisprudence.

What was perhaps even rarer, nevertheless, was Justice Ginsburg’s (and Justice Breyer’s) repeatedly stating their opposition to the Citizens United ruling and seeking to use American Tradition to overturn it.

First, Ginsburg added a concurrence (with which Breyer joined) to the Court’s granting a stay of the Montana Supreme Court ruling while petitions for certiorari were submitted that effectively asked for nothing short of Citizens United’s demise.

Second, Ginsburg joined in Breyer’s scathing dissent from the Court’s summary reversal of American Tradition Partnership, a very rare occurrence (that I went into much more detail about in this post).

Despite her consistently liberal judicial positions, Ginsburg is close friends with her ideological opposite on the Court – Antonin Scalia.

In fact, the two families are quite close and have dinner together every New Year’s Eve.

It seems, then, that Ginsburg believes that ideology isn’t as paramount as our current political environment holds it.

Now, if only Congress would adopt a new “Ginsburg rule” that implements this standard.