Commentary

Ginsburg in the “Balance”

This article appeared on Reason.com, January 19, 2006.
Remember all those news stories in 1993 about how the nomination of former ACLU lawyer Ruth Bader Ginsburg to replace conservative Justice Byron White on the United States Supreme Court would “tilt the balance of the court to the left?”

Of course you don’t. Because there weren’t any.

In the past three months, the major media have repeatedly hammered away at the theme that Judge Samuel Alito Jr. would “shift the Supreme Court to the right” if he replaced retiring Justice Sandra Day O’Connor.

According to Lexis/Nexis, major newspapers have used the phrase “shift the court” 36 times in their Alito coverage. They have referred to the “balance of the court” 32 times and “the court’s balance” another 15. “Shift to the right” accounted for another 18 mentions.

Major radio and television programs indexed by Lexis/Nexis have used those phrases 63 times. CNN told viewers that Alito would “tilt the balance of the court” twice on the day President Bush nominated him. NPR’s first-day story on “Morning Edition” was headlined “Alito could move court dramatically to the right.”

Now maybe all this is to be expected. Alito is a conservative, he’s been nominated to replace a centrist justice, and he probably will move the Supreme Court somewhat to the right—which is probably what at least some voters had in mind when they elected a Republican president and 55 Republican senators.

But note the contrast to 1993, when President Bill Clinton nominated the liberal Ginsburg to replace conservative White. White had dissented from the landmark decisions on abortion rights in Roe v. Wade and on criminal procedure in the Miranda case, and he had written the majority opinion upholding sodomy laws in Bowers v. Hardwick. Obviously his replacement by the former general counsel of the ACLU was going to “move the court dramatically to the left.”

So did the media report Ginsburg’s nomination that way? Not on your life.

Not a single major newspaper used the phrases “shift the court,” “shift to the left,” or “balance of the court” in the six weeks between Clinton’s nomination and the Senate’s ratification of Ginsburg. Only one story in the Cleveland Plain-Dealer mentioned the “court’s balance,” and that writer thought that Ginsburg would move a “far right” court “toward the center.”

The only network broadcast to use any of those phrases was an NPR interview in which liberal law professor Paul Rothstein of Georgetown University said that Ginsburg might offer a “subtle change…a nuance” in “the balance of the court” because she would line up with Justice O’Connor in the center.

No one thought that some momentary balance on the Court had to be preserved when a justice retired or that it was inappropriate to shift the ideological makeup of the Court. And certainly no one had made that point during 60 years of mostly liberal appointees from Democratic presidents Roosevelt, Truman, Kennedy, and Johnson—even as they replaced more conservative justices who had died or retired. ut suddenly, we are told by senators, activists, and pundits that a nominee should not change the makeup of the Court.

For another striking contrast, take a look at The Washington Post’s respective headlines on the days the two judges were nominated. For Ginsburg:

“Judge Ruth Ginsburg Named to High Court; Clinton’s Unexpected Choice Is Women’s Rights Pioneer”

“A Mentor, Role Model and Heroine of Feminist Lawyers”

“Nominee’s Philosophy Seen Strengthening the Center”

For Alito:

“Alito Nomination Sets Stage for Ideological Battle; Bush’s Court Pick Is Appeals Judge with Record of Conservative Rulings”

“With a Pick from the Right, Bush Looks to Rally GOP in Tough Times”

“Comparisons to Scalia, But Also to Roberts”

“Judge Participated in 2002 Vanguard Case Despite Promise to Recuse,” and “Alito Leans Right Where O’Connor Swung Left”

Despite the Post’s claim that Ginsburg was a centrist, she has in fact been a consistently liberal vote on the Supreme Court. Research by Richard J. Timpone, director of the Political Research Laboratory at Ohio State, finds that she is the most liberal member of the Court on economic issues and virtually tied with Justices John Paul Stevens and Steven Breyer on civil liberties. The Institute for Justice reviewed three years of Court terms and found: “The justices least likely to constrain government power and protect individual liberties were Justices Ginsburg and Breyer.” Three years later they found the same results for Ginsburg’s first seven terms: she and Breyer voted against protecting civil and economic liberties more often than any other justice.

The issue is not Ginsburg’s record, but the media’s notion that the Supreme Court exists in some sort of delicate balance which will be upset by the introduction of a conservative justice. The Senate has every right to consider whether Judge Alito will be too conservative, too accommodating to executive power, or too dismissive of discrimination claims. But the Supreme Court’s current ideological makeup is not divinely ordained, and we should stop wringing our hands over whether he will “shift the court” in some direction.

David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer.