Justice Ginsburg is one of two Jewish justices on the current Supreme Court, the other being Justice Breyer. Justice Louis Brandeis was the first Jewish Justice, nominated and approved in 1916. It was not until far more recently that the idea that the makeup of the U.S. Supreme Court should reflect the makeup of American society that brought a black- Thurgood Marshall and later Clarence Thomas- and women, first, Sandra Day O’Connor and later the current justice, Ruth Bader Ginsburg. Of course, it was not just religion or gender that took precedence in Supreme Court nominations, but whether the nominee had a liberal or conservative leaning (depending on which political party was in power at the time of the nomination). As necessary as gender and religion may have been in the new look at Judge Ginsburg by White House officials, we will see that it was (and continuers to be) her work on behalf of discrimination of any sort, her efforts to bring Constitutional rights to those to whom such rights had been denied or overlooked, that made her a logical choice for the Supreme Court with mostly bi-partisan approval.

So, who was (and is) Ruth Bader Ginsburg, and how and why was she selected to be a member of America’s highest tribunal? More importantly, what were the political and Congressional sources that pushed her nomination and made it clear to President Clinton that she was the best qualified to carry out the upholding of Constitutional law that might support the Clinton Administration’s long-term goals. Having been confirmed, we will also look at a decision that was a keystone in her influence on the Court and Constitutional law.

BIOGRAPHY:
Ruth Bader Ginsburg was born in 1933 in Brooklyn to a first-generation immigrant from Russia who worked in the garment industry. For many of her early years, she had to fight prejudice not merely against women but also against Jews. Her
devotion to equal rights for women is surely based on her own experience, upon graduating from Columbia University’s School of Law. One example of such prejudice is shown in the fact that “she ended up tied for first in her graduating class….A professor recommended her for a clerkship with his old friend Felix Frankfurter. However, Justice Frankfurter said he wasn’t ready to take a woman law clerk” (Tushnetg 195(. Her standing in her graduating class would have made it easy to obtain a residence in a prestigious law firm. That, however, seemed destined only for male graduates. “Unable to find a law firm in New York that would hire a female attorney, Ginsburg served for several years as a research associate at Columbia Law School and then joined Rutgers University School of Law where she rose to the infamous of full professor before becoming the first female law professor at Columbia Law School” (O’Brien 1592).

It surely was the atmosphere that kept her from successfully competing with her male peers, Ginsburg “began working as a cooperating attorney with the American Civil Liberties Union, mostly on sex discrimination cases” (Tushnet 105). According to Tushnet (105) her law students asked Ginsburg to issue a course on sex discrimination. But there seemed to be little material available. So “Ginsburg joined with the Berkeley law professor, Herma Hill Kay and the Buffalo law Professor Kenneth Davidson to develop the first casebook on sex discrimination law, published in 1974″ (Tushnet 105). As a result, Ginsburg not only maintained her law professorship at Columbia but headed a new project of the ACLU, the Women’s Rights Project. Ginsburg’s goal was to change constitutional law regarding women’s rights- a goal she has achieved even before she joined the Court.

It was not easy, because most jurists believed that gender discrimination and race discrimination were totally different. One reason seemed to be that there were many precedents proving race discrimination, while women’s rights seemed to be the same as men (i.e., voting rights and college admissions). The mind-set of many judges at the time seemed to be that “women were protected by laws giving them benefits men didn’t have” (Tushnet 107Ginsburg’s first case to be argued before the Supreme Court was based on a case n Idaho, where state law gave men preferences over women as estate administrators. The ACLU was asked to assume responsibilities for appeal, and Ginsburg asked to write the brief. While the Supreme Court ruled in Ginsburg’s client’s favor, the ultimate predicament was still present: most people tended to believe that men were better suited to business matters than women.

Ginsburg herself made her first Court appearance to argue for a female Air Force officer trying to derive her husband declared a dependent (with all rights that most dependents, as women, earned from the government). She won her first case. Another interesting case she argued was against Virginia Military Institute’s continuing its male-only policy. Here, too, the Court decided in her client’s favor.

“Her work on women’s rights with the ACLU made her a national figure, the ‘Thurgood Marshall of gender equality law’. Like Marshall she got a federal appeals court appointment as a result of her law reform advocacy. In 1980 Jimmy Carter appointed her to the federal appeals court in Washington” (Tushnet 120-1).

Over the years she became more and more a women’s rights advocate, arguing- and being successful in some five out of six appearances before the Court. As a Court vacancy occurred during the Clinton Administration, the New York Times weighed in, tacitly supporting Ginsburg: The paper” published an editorial urging ‘Great Diversity on the Supreme Court’….The Times endorsed appointment of a Jewish woman to the high bench….A month earlier…the newspaper has included among those being given serious consideration….Ruth Bader Ginsburg” ((Yarbrough 29). Perhaps because another Jewish judge recommended for the Court, Stephen Breyer, was in difficulty for not paying social security taxes for his housekeeper, it may have occurred to Clinton and is advisors to move quickly to appoint a Jewish woman to the Court. “Two days after revelation of Breyer’s social security difficulties and a speedy arranged White House meeting, the president announced Judge Ginsburg’s nomination” (Yarbrough 29). It was not Ginsburg’s gender or religion that finally made up President Clinton’s mind: “Her reputation as a middle-of-the-road jurist on the court of appeals made her a logical nominee when President Clinton was faced with the opportunity to replace retiring Justice Byron White. Although Clinton initially considered several other jurists, Ginsburg’s husband and a host of her former clerks and colleagues lobbied Clinton to appoint her as the second woman to the Court. As the first Democratic appointee to the Court in over twenty-five years, her unanimous “Well Qualified” rating from the American Bar Association made her a welcome, non-controversial appointee” (Oxford 3).

THE APPOINTMENT, NOMINATION, AND APPROVAL PROCESS
“The Constitution creates the Supreme Court. Other federal courts may advance and go, in Congress’ discretion, but only the Supreme Court is ordained in the founding document itself” (Starr 3). Since justices are appointed for lifetime service, not a matter of years or electoral decisions, a presidential appointment is one of the most serious and long-ranging decision a President and his party may make. 

The appointment process is fairly straightforward. When a vacancy on the Court occurs, usually the President seeks advice from the judicial establishment, including (but not always followed) the rating of the American Bar Association, which may approve by “highly qualified” and merely “qualified” ratings. The majority and minority leaders of the Senate judiciary committee which has first hearings for approval are also often consulted. In the case of Judge Ginsburg, for example, the minority leader, Senator Hatch was instrumental in guiding her approval through the committee. There is an investigation period of the nominee even before the official nomination. Hearings then occur before the Senate Judiciary Committee, which may hear not only from the nominee but other witnesses, pro and con (Remember Anita Hill at the Clarence Thomas hearing). The committee votes in favor or against and then passes the nomination on to the Senate for a full Senate vote.
It is important to recognize the fact that all too often in recent years, political views, rather than solid judicial experience on the bench, has been a factor in making appointments. Congress, it seems, has recognized the shortcomings of some of these appointments and refused to approve them. “More than a sixth of the presidential choices for the Supreme Court have failed to win Senate approval. In recent years, the politics of appointments and confirmation seems to have become particularly bitter. The polarizing defeat of President Ronald Reagan’s 1987 nomination of Judge Robert Bork to the Supreme Court has been taken by some as emblematic of everything that is wrong with the current process” (Whittington 2). President Nixon had two of his appointees fail to secure Senate approval: Judge Clement Haynesworth and Judge G. Harrold Carswell in 1970. And, of coursed, President George W. Bush had to bite the bullet with his unexpected and unwelcome decision to appoint Harriet Miers

It is a valid question, however, whether the Supreme Court really represents the mainstream America. “Certainly the Supreme Court has never been ‘democratic’ in the sense that appointments are meant to represent a cross section of the nation” (Lerner 445). But, the nomination and quick approval (97-3) of Ruth Bader Ginsburg does seem to indicate that politicians and their constituents had become more aware of, and concerned, about equal rights, for which Ginsburg had become a well-known and decades-long advocate. While the Court does not “create” laws, according to Lerner (451) it does, or should serve as a national educator in its attempt to set standards of social control.

One concern some in the Senate and other critics had about Ruth Bader Ginsburg was her views on the landmark Roe vs. Wade decision.. “Ginsburg criticized Roe vs. Wade for going too far too fast and for treating the problem as one of privacy and autonomy rather than sex discrimination” (Tushnet 121). She was questioned on her views during her nomination hearing by Sen. Leahy and others. Yet, when questioned about some future decisions she might or might not make, she stated: “”. . . 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” (Ginmsburg 54).

The nearly unanimous vote to seat Judge Ginsburg was due to the fact that the Senate Judiciary Committee and its Republican minority leader, Sen. Orrin Hatch (R. Utah) “pre-approved her nomination: “And why did the Republicans feel so comfortable with Judge Ginsburg? The acknowledge is that her judicial record shows her to be the most conservative Carter-appointed judge on the U.S. Court of Appeals here in the District of Columbia. She’s considered a centrist, a swing vote. And, in fact, a statistical analysis done in 1987 of that court’s voting patterns shows Judge Ginsburg voting substantially more often with the court’s conservative Republican bloc of judges led by then-Judge Robert Bork than with the liberal Democratic judges” 

(Anon 3). Justice Ginsburg may have been seen by some as a real left-winger. But, the media as well as the ACLU and other organizations for which she was an advocate rightly portrayed her as a centrist. This, then, made it possible for both the ABA and the Senate to give her a snappy approval. The only really strong vocal opposition to Judge Ginsburg’s nomination came from anti-abortionists who saw in her another vote in favor of retaining or even strengthening Roe vs. Wade.

There are many scholars who now seem to feel it is useless to try to appoint and approve someone to the Court in order to
“rein in” its activism. According to Robert F. Nagel, law professor at the University of Colorado, it has not worked in the past thirty-five years. “It is now accepted by the bulk of the legal profession, including many of its most influential scholars and successful practitioners, that there is no single correct method for interpreting the Constitution. As now-Chief Justice John Roberts said at his confirmation hearings, the correct sources of constitutional meaning vary depending on the nature of the case. Sometimes a justice should search for at the tiresome meaning of the text, but sometimes that can be overridden by historical information or by the overall logic of the document or by changes in social conditions or by evolving political practices or by philosophical considerations. This is what most sophisticated lawyers maintain, and it shapes the way they formulate their arguments” (Nagel 45).

PERSONAL IS POLITICAL
There are three primary factors in Justice Ginsburg’s progress to nomination and approval: First, her advocacy of now more well-known issues: gender as well as racial discrimination which have become far more obvious, and, from the time of Affirmative Action and Civil Rights legislation in the 1960s to the so-far failed ERA amendment to the Constitution as well as continued adversarial activities about abortion and equal pay for women headlines, Judge Ginsburg has been far more than a gadfly. Likewise, she has always been both an involved and creative force in defending or defeating challenges to equal rights for women, minorities, and even gays. Yet, she was never assessed in political terms as a “flaming liberal” but far more of a centrist who might not truly upset the delicate balance of the Supreme Court of the Nineties. In fact, “Ginsburg got a reputation as a cautious and careful assume on the circuit court” (Tushnet 121). And yet, she weighed in on Roe vs. Wade that would later be brought up as a potential negative in her nominating questioning before the Senate Judiciary committee. She wrote that “the heavy-handed judicial intervention’ in Roe was difficult to account for” (Tushnet 121).

Her interpretation of a woman’s right to choose, and the Court’s mountainous definition thereof may also have influenced some of the committee members’ concerns: “Conservative committee members naturally challenged Judge Ginsburg’s acceptance of any sort of abortion right” (Yarbrough 30). The line of questioning about abortion tended to bring a conflict between Senator Hatch and Illinois Democratic Senator, Carol Moseley-Braun. But, this conflict, as well as other lines of questioning were not really deep-=seated. Ginsburg’s approval by the Committee and the full Senate was already a foregone conclusion.

One has to refer back to the very beginnings of her long career to see how and why she felt encouraged, even duty-bound to take up the fight for equal rights and an end to gender discrimination. It began with her inability to gather a job with a prestigious law firm in New York, despite her Number One ranking as a graduate of the Columbia University School of Law, and her being a member of the Law Review both at Columbia as well as at Harvard. While these law firms seemed to dangle all sorts of career opportunities to male graduates, and while even Supreme Court Justices found clerkships for top graduates, Ruth Ginsburg was frozen out- no doubt due to her gender as well as to her Jewish religion. Even a rather liberal Jewish Supreme Court Justice, Felix Frankfurter, declined to hire her, believing that the time was not yet ripe for women as Supreme Court clerks.

Not that her career suffered, in the long run. She finally became the first female law professor at Columbia University School of Law. But this was not totally satisfying in her attempt to provide meaningful defense for, and advocacy of, equal rights and an end to gender discrimination. It was not only her involvement in the first casebook of sexual discrimination for law school courses, but also her work with the ACLU that made her an distinguished force to be reckoned with, and which, surely, led her to the Clinton nomination, even though she had not been his first choice.

DEVELOPMENT OF DOCTRINE
Justice Ginsburg was (and is) an advocate of far more than equal rights for women. She has fought and argued for equal rights for males as well. “By 1994 the Court understood that the teach of gender discrimination almost always involved the use of stereotypes that helped perpetuate older practices…” (Tushnet 123).

She also sees a certain inequality in the way some defendants are represented. In fact, in 2001, in response to the argument that poor people have as fair representation as the wealthy, she wrote: “(I have) yet to leer a death case among the dozens coming to the Supreme Court…in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty” (Schwartz 88-9). In other words, Ginsburg continues to see inequality and discrimination not merely among genders and races, but social and financial status as well. And yet, as powerful an advocate as she continues to be, she is not a firebrand, spouting opinions to anyone and everyone who would listen (as the famed Justice William O. Douglas was wont to do).

There is no better example of a doctrtne by which to judge and remember the impact of Ruth Bader Ginsburg than in a key decision of the Supreme Court involving the Virginia Military institute’s refusal to admit female cadets. The case was not begun either by a female student denied admission or by VMI itself, but “when a lawyer in the Department of Justice read a news story. It ended by transforming the constitutional law of gender discrimination and vindicating the litigation strategy of Ruth Bader Ginsburg” (Tushnet 104).

VMI, with federal funding, was expected to observe non-discriminatory admissions policies. But, when faced with the challenge to admit female cadets, VMI considered going private, but the money simply was not available from private contributors. The case itself wqs never really in doubt, and “In 1997, 30 women and 430 men registered as rats” (Tushnet 127). Even though about a quarter of the women dropped out that first year, eventually female admissions grew, though proportionately far less than at the service academies. “Ginsburg’s opinions moved the bar up…Ginsburg’s opinion (in the VMI decision) reflected changing social values about the role of women. The Rehnquist Court, divided on many social issues, was entirely unified around women’s issues.

Justice Ginsburg also felt strongly about the poor being poorly represented in death penalty cases. She also felt strongly about gay rights, even though she was in the minority on a case involving the Boy Scouts of America excluding joyful scoutmasters. She was also in the minority ion the case of the Cleveland school vouchers, where she argued against them because some of the money was to go to religious schools, thus somewhat eliminating the church-state separation. She was also instrumental in a decision in favor of the disabled: “In a plurality opinion Justice Ginsburg held that the ADA may ‘require placement of persons with mental disability in community settings rather than in institutions when the State’s treatment professionals have positive that community placement is appropriate” (Schwartz 209).

Scholars, critics and commentators have found Justice Ginsburg to be, indeed, a centrist, with very strong and constitutionally proper views on discrimination and extremism, no matter where they occur. Her smooth demeanor seems to be in direct opposition to the haughty PC opinions and right wing views of her personal friend, Antonin Scalia. Justice Ginsburg’s doctrinaire approach really goes beyond what the general public might deem to be “fair.” Rather, it is to her credit that she advocates what is just, and what our Constitution. Where some have rationalized that all our Constitution calls for is equal opportunity (italics mine) for all, Justice Ginsburg goes beyond that to what is guaranteed both explicitly and implicitly in the document that guides our government and nation. My research therefore comes to the realization that Justice Ginsburg’s doctrine is equality for some is not to be sanctioned; equality for all must be protected and often reiterated by the highest Court in the land, given that lower courts may tend to rule otherwise.

LEGACY
Her strong views on gender discrimination, in particular, continue as she is now the only woman among eight male justices: This makes it obvious that her legacy as an advocate of women’s rights an essential allotment of the overall human rights agenda, trained on the equal dignity and ability to live in freedom all people should enjoy.

She realizes, of course, that her job of being an advocate for those discriminated against, and opponent to those individuals and organizations doing the discriminating, is far from complete. She feels, and many agree, that she has provided an activism when it comes to discrimination- gender, racist or otherwise, to unite the Court on many such issues.
Forbes Magazine, in a survey of what it called the 100 most powerful women in the world, called Justice Ginsburg #7:. Their reasoning was that she spent the court’s last session entertaining the Bush administration and voting against the majority in several important cases, including Cheney v. U.S. District Court for the District of Columbia and Hamdi v. Rumsfeld, the Guantanamo-detainee case in which the court allowed the president to declare an American citizen an enemy combatant
However, the spirit of her legacy is best defined and clarified by the Oxford Companion to the Supreme Court of the United States sums up her work and her legacy this way: “Justice Ginsburg has not been in the position to mold the Court’s jurisprudence, even if it was in her nature to do so. She is one of the two most liberal justices on the Court, but not a liberal in the sense of earlier justices such as William Brennan. Although her career as a civil rights lawyer paralleled somewhat that of Thurgood Marshall, the last Democrat before her appointed to the bench, Ginsburg’s judicial philosophy does not allow her to stake out truly liberal positions on the Court, even in dissent. Although liberal by Rehnquist Court standards, she is a judicial moderate in all areas except those involving gender discrimination, which she interprets to include reproductive rights for women” (Oxford 6).

Her legacy is really more than as a staunch defender of equal rights for all, as guaranteed by our Constitution. It is her devotion to the law, righting wrongs, correcting inequities, and making decisions that have changed or at least altered the way we look at what constitutes equality, in the home, in the workplace, and under the law. Unlike some others who advocate women’s rights, she is not a shouter nor one who appears on the talk shows to vow unpopular opinions, just to get a riser out of her opponents (much like Betty Friedan, Eleanor Smeal and Gloria Steinem, among others, have done). The quietness of her reasoning on difficult equal rights cases is, surely, at the vanguard of her legacy.

CONCLUSION
My research has brought me to the personal conclusion that, of all the currently-serving Justices of the Supreme Court, Justice Ginsburg had done the most, been the most successful, created more important victories on behalf of solving problems of discrimination- whether gender, sexual orientation, racial or religious. One can readily see why her advocacy work and her five successful personal victories in Supreme Court cases and her legal fight to encourage a closer study at the constitutionality of legislation that limits the progress of men, women as individuals, rather than as a class, had made her a bi-partisan choice for the Supreme Court.

“Ruth Bader Ginsburg would have been an appropriate honored guest for the “Great Lives in the Law” series even if she had never been appointed to the Supreme Court, Dean Katharine Bartlett observed in welcoming the Justice to the Law School on January 31. Bartlett cited the key role Justice Ginsburg played in shaping the law of sex discrimination, as an equal rights scholar and advocate, arguing-and winning-pivotal cases before the Court in the 1970s” (Bartlett 1). In an interview with Professor Walter Dellinger, former Solicitor-General of the US, Justice Ginsburg was quoted as saying: “”Every constitution written since the end of World War II includes a provision that men and women are citizens of equal stature. Ours does not. I have three granddaughters. I’d like them to be able to take out their Constitution and say ‘here is a basic premise of our system, that men and women are persons of equal citizenship stature.’ But it’s not in there. We just have the equal protection clause, which everyone knows was not meant in the 1860s to change anything with regard to women’s status. Women didn’t get to vote until 1920″ Dellinger 2)

She continues to be an indefatigable advocate for equal rights. It is worth ending this series of essays with her quote in the Duke Law interview with Prof. Dellinger: “Asked by a student about what she has found most personally satisfying, Justice Ginsburg responded that as a jurist and advocate “it’s the satisfaction you get when you are genuinely able to persuade other minds.” She went on to relate her delight in finding out, through the papers of the slow Justice Harry Blackmum, that a case she argued before the Court had been a ‘real cliffhanger,’ with an initial vote of five-four against her position, but ending up ‘five-four my procedure, with two flip-flops along the way.’ Justice Ginsburg advised lawyers at the nascent stages of their careers to do something other than the work they are paid for. Whatever community organization, whether it’s a women’s organization, or fighting for racial justice … you will get satisfaction out of doing something to give back to the community that you never get in any other way.” (Dellinger 6).

WORKS CITED:

Dellinger, Prof. Walter: “Great Lives in the Law: Justice Ruth Bader Ginsburg: A “Lady” Who Led the Fight for Gender Equity” Duke University School of Law, Jan. 11, 2006 DukeLaw.com

Ginsburg, Justice Ruth Bader: Excerpted from “Nomination of Ruth Bader Ginsburg, to be Associate Justice of the Supreme Court of the United States,” Hearings before the Committee on the Judiciary, United States Senate, 103rd Congress, U.S. Government Printing Office, 1994, pp. 53-56.

Lerner, Max: America as a Civilization New York: Simon & Schuster (1957)

Nagel, Robert F.: “Well, the justices being lawyers, think like them” Novel York: National Review, Nov 21, 2005. Vol. 57, Iss. 21

O’Brien, Donald M. Constitutional Law and Politics, Volume Two: Civil Rights and Civil Liberties New York: W.W. Norton & Co. (2005)

Schwartz, Herman (ed.) The Rehnquist Court: Judicial Activism on the Right Novel York: Hill & Wang (2002)

Starr, Kenneth W.: First Among Equals- The Supreme Court in American Life New York: Warner Books (2002)

Tushnet,. Mark: A Court Divided Unique York: W.W. Norton & Co (2005)

Whittington, Keith: “The Confirmation Process We Deserve: Review of Gerhardt, Michael J: The Federal Appointments Process: A Constitutional and Historical Analysis. Duke University Press. (2000)

Yarbrough, Tinsley E. The Rehnquist Court and the Constitution New York: Oxford University Press (2000)

No author listed: “SEN. HATCH AND REPUBLICAN LEADERS PRE-APPROVED GINSBURG NOMINATION” NPR, June 18, 1993

No author listed: “Ruth Bader Ginsburg” Oxford Companion to the Supreme Court of the United States (2006)