RBG’s Judicial Legacy

RBG was part of a determined effort by Clinton to make the judiciary “look like America” by nominating more women and racial minorities, particularly African Americans, than any of his predecessors.

September 17, 2020 • Commentary
This article appeared on Washington Examiner on September 17, 2020.

On June 25, 1992, Senate Judiciary Committee Chairman Joe Biden went to the Senate floor to urge President George H.W. Bush not to nominate anyone to the Supreme Court if a vacancy opened up before that fall’s election. “Should a justice resign this summer and the president move to name a successor,” he counseled, “a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.”

Biden noted that, among the previous seven nominations, two were not confirmed and two were approved over major opposition. Under the circumstances, if Bush were to nominate someone anyway, the Judiciary Committee “should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” There was no election‐​year vacancy, so any showdown was averted. But that speech would resurface 24 years later, when President Obama, with Biden as his vice president, made a Supreme Court nomination in the final year of his second term, which led to plenty of debate over the “Biden Rule.”

Although no vacancy arose in 1992, one did the following year, when Byron White, the last member of the Warren Court, announced barely a month after Bill Clinton’s inauguration that he would be retiring at the end of the term. This would be the first chance for a Democratic president in 25 years. The new president told aides to look at his written testimony against the Bork nomination, which emphasized pragmatism and an “agenda of unity” over legal doctrine. He stressed that his goal would be “unquestioned intellect, judicial temperament, broad experience,” as well as aiming to appoint more women and minorities to instill public confidence in the judiciary.

While those sorts of neutral criteria are all well and good, in his presidential campaign, Clinton let slip some ideological factors, criticizing Presidents Reagan and Bush for “selecting judges who shared their restrictive views of constitutional rights,” instead promising to “bring the federal courts back toward their traditional role as guardians of constitutional rights.” Candidate Clinton made public his litmus test that he “would look for someone who believed in the constitutional right to privacy … [people] who were pro‐​choice.”

Clinton’s first choice was New York Gov. Mario Cuomo, who fulfilled his requirement of having a “big heart,” but also the savvy to lead the court. Cuomo declined, choosing to stay in politics. After flirting with the idea of appointing an academic such as Laurence Tribe or Michael Sandel — or even the first lady, Hillary Clinton! — the president looked to Senate Majority Leader George Mitchell, who was briefly a district judge before being appointed to the Senate. Mitchell also declined in favor of his political career. After considering several of his Cabinet secretaries, Clinton turned to more conventional candidates, federal judges.

The president seemed to settle on 1st Circuit Judge Stephen Breyer, a staff favorite. But Breyer had been hit by a car while biking a few days earlier, causing him to be in pain and short of breath at his brief interview. The two didn’t click, with Clinton labeling Breyer “heartless.” It also later came out that Breyer had a mini-“Zoe Baird problem,” referring to Clinton’s failed attorney general nominee, who had hired illegal aliens and not paid their Social Security taxes. Breyer had hired an elderly woman to clean his house but neglected to pay Social Security; he thought he didn’t have to because she was already a recipient of the program.

On June 15, 1993, after interviewing D.C. Circuit Judge Ruth Bader Ginsburg and briefly reconsidering Cuomo — whose son Andrew, then an administration official, now governor of New York, called the president to ask him to do so — Clinton announced that Ginsburg was his nominee. She thus became the second female nominee and the last justice to date to be clearly more liberal than the justice being replaced. (Breyer would be nominated and confirmed the following year, to replace Harry Blackmun.)

Ginsburg had already served 13 years on the D.C. Circuit and had a compelling personal story. Having lost her mother to cancer the day before her high school graduation, she excelled at Cornell and was one of nine women in her Harvard Law School class. Married to a fellow student and with a young daughter, she ended up transferring to Columbia when her husband took a job in New York, and finished tied for first in her class. By 1972, she started teaching at Columbia and also co‐​founded the ACLU’s Women’s Rights Project, under whose auspices she argued six cases before the Supreme Court. She picked her battles carefully, building on successive victories and sometimes having male plaintiffs to show that gender discrimination hurt both men and women.

In announcing the nomination, President Clinton highlighted three reasons why he picked Ginsburg: First, her distinguished judicial career. Second, her litigation project, which made her “to the women’s movement what Thurgood Marshall was to the rights of African Americans.” Third, her ability to build consensus as a “moderate liberal.”

That sense of moderation and strategy got her in hot water because, just a few months earlier, she had questioned the rationale and timing of Roe v. Wade, blaming the court’s overbroad decision for the continued political controversy over abortion. It seems amazing that anyone had doubts about Ginsburg’s pro‐​choice commitments, but Kate Michelman, then president of the National Abortion Rights Action League, asked senators to determine “whether Judge Ginsburg will protect a woman’s fundamental right to privacy.” At her hearing, Ginsburg would say that restricting abortion “controls women and denies them full autonomy and full equality with men.”

In light of Ginsburg’s qualifications and bipartisan support, she sailed through three days of testimony. Her methodical performance managed both to reassure liberals that her record on the oft‐​technical D.C. Circuit didn’t mean that she no longer shared their social justice goals and to satisfy conservatives that she was no wide‐​eyed activist. And she did so by talking a lot without saying much, except on those subjects, such as abortion and gender discrimination, on which she had written. Indeed, she refined that tactic into a “pincer movement,” refusing to comment on specific fact patterns because they might come before the court and then also refusing to discuss general principles because “a judge could deal in specifics only.”

The Judiciary Committee unanimously approved the nomination. A few days later, on Aug. 3, 1993, the full Senate concurred 96–3. That overwhelming approval now seems like it’s from another time, particularly for someone with a record, at least earlier in her career, of pushing the legal envelope. The main difference from the Robert Bork and Clarence Thomas imbroglios is that, with Ginsburg, Democrats controlled both the White House and the Senate, though even that unified power wouldn’t guarantee easy nominations forever.

On the high bench, Justice Ginsburg quickly joined the left of the court, particularly on gender, race, and religion, as well as questions of federal power. In nearly all high‐​profile cases with ideological salience, she’s either been on the short end of 5–4 dissents or joining opinions assigned to the deciding justice, typically Sandra Day O’Connor or Anthony Kennedy. That means that she’s had few landmark majority opinions, the most prominent being United States v. Virginia (1996), for which she authored the 7–1 ruling — with Antonin Scalia in dissent, Clarence Thomas recused because he had a son attending the Virginia Military Institute, whose men‐​only admissions policy the court held violated the 14th Amendment’s Equal Protection Clause.

When Ginsburg became the sole woman on the court after Justice O’Connor’s retirement, she really “found her voice,” with stemwinding dissents in the 2007 cases Ledbetter v. Goodyear Tire & Rubber Company, strictly enforcing the statute of limitations on claims of gender pay discrimination, and Gonzales v. Carhart, upholding the federal ban on partial‐​birth abortions.

From Justice John Paul Stevens’s retirement in 2010 until her death last week, Justice Ginsburg has been the senior member of the court’s liberals, getting to assign the lead dissenting opinion in the 5–4 decisions that split on “conventional” ideological lines. She used that power not only to pen key dissents, but to have her bloc speak with one voice, without separate opinions, unlike the unpredictability of the supposedly dominant conservatives. Also in this last decade, when Justices Stephen Breyer and Elena Kagan have shaded to the middle on occasional pragmatic compromises, Justice Ginsburg, together with Justice Sonia Sotomayor (Stevens’s replacement), stuck to her guns, in cases ranging from NFIB v. Sebelius (2012), the Obamacare constitutional challenge in which Breyer and Kagan joined the conservatives to invalidate coerced Medicaid expansion, to Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), which found the state civil rights agency guilty of anti‐​religious bias in applying anti‐​discrimination law to a baker who wouldn’t create a wedding cake for a same‐​sex marriage, to Trump v. Hawaii (2018), the travel ban case in which Ginsburg and Sotomayor were the only justices who found anti‐​Muslim animus.

Justice Ginsburg thus became a hero of the progressive Left, gaining the unlikely moniker Notorious R.B.G. and becoming a staple of Saturday Night Live skits. Her growing collection of jabots (“neck doilies”) contributed to her iconic status. Her increasing visibility got her in hot water at least once, when in July 2016, she criticized presumptive Republican presidential nominee Donald Trump, saying that she didn’t want to think about the possibility of a Trump presidency and might consider moving to New Zealand.

For over a decade before her passing, Ginsburg’s health drew morbid concern in these polarized times. Although progressive lawyers and activists criticized her for not retiring under President Obama, when Democrats had the Senate majority before the 2014 election, she maintained that nobody as good as she was could’ve been confirmed.

RBG was part of a determined effort by Clinton to make the judiciary “look like America” by nominating more women and racial minorities, particularly African Americans, than any of his predecessors. Nearly two‐​thirds of those ascending to the federal bench were such “nontraditional” picks. But his selection process comprised typical Clintonian hesitancy and overthinking, which, when added to the GOP takeover of the Senate after the 1994 election, led to delays in filling seats.

At the same time, Clinton had an unprecedented number of unsuccessful court of appeals nominations — 24 people for 20 judgeships — a sign of a gradual increase in partisan tensions and the pushing down of confirmation battles below the Supreme Court level. Interestingly, in all eight years of the Clinton presidency, only one nomination was formally rejected. Instead, and particularly once Republicans took the Senate in the 1994 elections, the Judiciary Committee just wouldn’t process nominees with significant opposition.

Some of the more notable Clinton‐​era confirmation battles, carrying over into his successor’s tenure, were over the 4th Circuit, which covers Maryland, the Virginias, and the Carolinas. This court had the largest black population of any circuit but a long streak of conservative judges, so Clinton decided to make it the cornerstone of his diversification efforts. Powerful North Carolina Sen. Jesse Helms refused to return blue slips, the form on which a home‐​state senator indicates an opinion about a judicial nominee, while Chief Judge J. Harvie Wilkinson testified before Congress that his court’s workload didn’t justify filling the vacancies. Part of this opposition was no doubt retaliation for Democratic stonewalling of two George H.W. Bush nominees.

Beyond that one court, the opposition to Clinton’s attempt to transform the judiciary took on new urgency once Republicans regained the Senate. In addition to insisting on positive blue slips from at least one home‐​state senator, there were delays in scheduling hearings and floor debates. Democratic Sen. Pat Leahy called it a “pocket filibuster,” which is a non sequitur but conveys the frustration of the moment. And the number of roll‐​call votes, as opposed to uncounted voice votes, increased with every Congress. Democrats would repeatedly mention the slowdown of Clinton’s nominees during the controversy over George W. Bush’s judges.

But for all the hand‐​wringing about Republican obstruction, when President Clinton departed the White House, he left about 30 fewer judicial vacancies than George H.W. Bush had four years earlier and had appointed a record number of district judges, as well as more circuit judges than anyone before or since other than Reagan. So we can look back on what then seemed to be a tense period as a halcyon era of good feelings compared to what came next.

The justice at the center of the 2020 storm over an election‐​year court vacancy, meanwhile, was herself a throwback to the “Biden Rule” debate. As is President Trump’s opponent for the presidency: Joe Biden himself.

About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute