Ginsburg, Phony Arguments, Phony Refutations

[Trevor Morrison]

I haven't been following this entire thread closely, so I apologize 
if this point has been made already, but recent empirical work by 
Epstein and Segal confirms that, at the time of her nomination to the 
Supreme Court, Ginsburg was generally viewed as quite moderate, not 
especially liberal.  Epstein and Segal determined this by surveying 
editorials about her (and every other nominee since Black), from both 
liberal and conservative newspapers.  As I understand it, Epstein and 
Segal's point is not that Ginsburg "really is" moderate and not 
liberal (they take no position on that issue), but that the 
prevailing view at the time of her nomination was that she was moderate.

In other words, present-day claims that the Republicans in the Senate 
voted to confirm Ginsburg even though they thought she was an 
"extremist" are simply inaccurate as an historical matter.  Instead, 
she was generally viewed as a moderate.  And as Sam has been 
explaining, Ginsburg's record on the DC Circuit provided a solid 
basis for that view.


Trevor Morrison
Cornell Law School



At 11:24 AM 11/2/2005, Samuel Bagenstos wrote:
>A couple of things:
>
>1.  I took the right-wing claim about Justice Ginsburg's association 
>with the ACLU to be one not about extremism as a personal 
>disposition (which would be ludicrous, if you have ever interacted 
>with her) but about the risk that she would be extremist as a 
>judge.  Her decade-plus of service on the DC Circuit, in which she 
>was clearly far more centrist than her other Carter-appointed 
>colleagues, would refute that claim.  Remember, in her appeals-court 
>service then-Judge Ginsburg hardly ruled the ACLU way all of the 
>time.  She was, and remains, fairly conservative on 
>criminal-procedure issues (issues that I tend to think of as awfully 
>important to ACLU types).  And she wrote the DC Circuit opinion 
>shutting down the Adams v. Richardson case, a case that had been an 
>important tool to get the executive branch to take seriously its 
>responsibility to enforce civil rights laws.  And of course there 
>are other examples.  So I don't think it's a non-sequitur at all.
>
>2.  "Celebrated judicial tyrannies like Roe v. Wade"?  Have you read 
>then-Judge Ginsburg's 1985 North Carolina Law Review article or her 
>1992 Madison Lecture?  They're quite critical of Roe for shutting 
>off the political process.  IIRC, a number of liberal women's groups 
>were lukewarm about RBG's nomination, despite her central role in 
>the campaign for women's rights, because of her writings on Roe.
>
>====================================
>Samuel R. Bagenstos
>Professor of Law
>Washington University School of Law
>One Brookings Drive
>St. Louis, MO  63130
>314-935-9097
>Personal Web 
>Page:  http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
>Disability Law Blog:  http://disabilitylaw.blogspot.com/
>
> >>> <JMHACLJ at aol.com> 11/2/2005 9:51 AM >>>
>
>In a message dated 11/2/2005 10:25:44 A.M. Eastern Standard Time,
>DLaycock at law.utexas.edu writes:
>
>But that service had clearly shown that she was no  judicial radical;
>Republican claims that they confirmed an extremist on  the other 
>side because the
>President is entitled to choose are simply  phony.
>
>
>This is a non sequitur.
>
>Ginsburg served as a judge, among other things.  If Republicans claim  that
>her service as an appeals judge proves her to be an extremist, then it is  an
>objective claim subject to objective verification or rebuttal.
>
>But if they claim she is an extremist based on her long time association
>with the ACLU, or because she had, for example, celebrated 
>judicial  tyrannies
>like Roe v Wade, then perhaps the argument is not phony, or at 
>least  is subject
>to some refutation different than mere invocation of her dutiful  service as
>an appeals court judge.
>
>Jim Henderson
>Senior Counsel
>ACLJ
>
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