A Tale of Two Female Supreme Court Nominees

By Erin Hawley

Sunday, October 18, 2020

 

The nomination of Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the U.S. Supreme Court exposes the Left’s disdain for women who are not like them. As accomplished scholars, jurists, and mothers, Barrett and Ginsburg represent the very best of the legal profession. But their confirmation processes could not look more different.

 

Where Justice Ginsburg sailed through a noncontroversial confirmation process in which senators from both sides of the aisle sang her praises, Judge Barrett has been subject to vicious personal attacks.

 

Barrett’s opponents have done everything from suggesting that she and her husband are racists promoting white colonization through their adoption of two children from Haiti, to lambasting her religion, to arguing that she will turn back the clock on women’s rights, and questioning her ability to be successful at work and a loving parent.

 

In contrast, Ginsburg’s nomination hearings were a model of bipartisan cooperation. Then–Judiciary Committee chairman Biden described the confirmation climate as one in which “congeniality prevails over confrontation” and praised Republicans for being “totally and completely cooperative.” Given Ginsburg’s brilliant academic and legal career, her confirmation was regarded as noncontroversial by the media. Indeed, opening-day coverage of the confirmation hearings was relegated to the back of the New York Times.

 

Senators on both sides of the aisle also accorded Ginsburg much leeway in not answering questions, even on topics about which she had written extensively. Ginsburg repeatedly reminded the senators of a rule — that has come to be known as the “Ginsburg rule” — under which judicial nominees must not comment on a case that might come before them. Ginsburg declined to answer approximately 30 questions on everything from sexual-orientation classification, to the Second Amendment, to the death penalty, to antitrust law and which sort of abortion regulations might prove constitutional under Roe v. Wade.

 

The Republican Senators were surprisingly compliant. After Ginsburg declined to answer a series of equal-protection questions, Senator Strom Thurmond asked her about a balanced-budget amendment. Ginsburg told Thurmond she could not comment because the senator was “describing a future controversy that may very well come before the Court.” Thurmond replied, “Well, you don’t have to answer it, then, if you feel that you shouldn’t.” He then posed a question about limiting adoption to heterosexual couples. Ginsburg again declined to comment, noting a current controversy in the morning newspaper and explaining, “The questions that you have outlined certainly could come up.” Thurmond was accommodating: “I will not press you to answer any that you feel are inappropriate.”

 

Democratic senators have not been so accommodating to Amy Coney Barrett. They have suggested she will be an activist justice and have presented heartbreaking stories of individuals with preexisting conditions and their families while accusing her of being hell-bent on destroying the Affordable Care Act. In keeping with ethical standards and the Ginsburg rule, Barrett declined to offer her view on the ACA litigation currently pending before the Supreme Court. Democrats dismissed her declination as a mere political talking point. Similarly, Minority Leader Chuck Schumer accused Barrett of “dodging” a question about presidential power in order to curry favor with President Trump.

 

It is true that Barrett has a different legal philosophy from that of the justice whom she will replace if confirmed. But that does not explain the differential treatment. Ginsburg’s nomination also had the potential to radically change the direction of the Court. She had been nominated to replace Justice Byron (“Whizzer”) White, a justice who today would be considered to the right of Chief Justice Roberts. Republican senators nevertheless heaped praise on the nominee: Ranking Member Senator Orrin Hatch praised Ginsburg’s “ability, character, intellect, and temperament to serve on the Supreme Court.” Ultimately, Ginsburg was confirmed by a vote of 96–3, with 41 Republican senators voting for her.

 

Make no mistake, all of this bipartisan cooperation in favor of Ginsburg’s confirmation was not because Republicans agreed with her political or jurisprudential views. Just months before her confirmation hearings, Ginsburg had forthrightly rejected the concept of a written Constitution with consistent, fixed meaning in favor of the notion of the Constitution as “an evolving document.”

 

Truth be told, the nomination of Ginsburg should have been more controversial than the nomination of Barrett. As a trailblazer for women’s rights, she had staked out some contentious positions. While a professor at Columbia University, for instance, Ginsburg had supported the decriminalization of prostitution because, she said, it was “arguably within the zone of privacy protected by recent constitutional decisions.” She also suggested that segregating prison populations on the basis of sex was unequal and that the equal-protection clause provided an alternative basis for upholding Roe v. Wade; and she wrote that the Constitution compels taxpayer-funded abortion.

 

Despite her many controversial positions, and despite the fact that President Bill Clinton told the American people that Ginsburg was “clearly pro-choice,” her confirmation hearings were cordial. All this, even though Justice Clarence Thomas had been through a bitter confirmation fight only two years earlier. The media seems to have preserved the most vicious of its attacks for Republican-appointed minorities and women.

 

Other female justices appointed by Democratic presidents have also been confirmed by comfortable margins. Justice Sotomayor was confirmed by a 68–31 margin, including nine Republicans. Justice Kagan was confirmed by a 63–37 margin, including five Republicans. Chairman Lindsey Graham voted in favor of both. Yet the chances are slim that any Democratic senator will vote for the current and indisputably qualified nominee.

 

The reality is that the Left has a litmus test for Supreme Court nominees, especially female ones. They must endorse a particular type of feminism and not be too serious about their faith. Above all, they must be firmly committed to Roe v. Wade. If a female nominee fails to toe the line on any of these issues, then vicious personal attacks ensue. Justice Ginsburg, who advocated for all women — even women of a different mold — would be appalled.