A Sense of Judicial Limits

[one...two...tree 2,762]

By LINDA GREENHOUSE

WASHINGTON -- After two days of her Supreme Court confirmation hearing, Ruth Bader Ginsburg has emerged as something of a rare creature in the modern judicial lexicon: a judicial-restraint liberal.

As one who believes that the judiciary should ordinarily take a back seat to the elected branches of government, she made easy conversation with the conservative Republicans on the Senate Judiciary committee, who have spent years exhorting judicial nominees to interpret the law and not make the law.

She told the committee that "we must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians" who impose their own vision of wise government upon society.

But the flashes of the passion that animated her earlier life as a courtroom campaigner for women's rights kept shining through her controlled and scholarly testimony, as in her forcefully expressed support today for abortion rights as well as her declaration that she remains a strong supporter of the proposed equal rights amendment to the Constitution.

She is at her most animated in discussing her own landmark victories before the Supreme Court in the 1970's.

Several senators, intrigued by the apparent contradiction, have tried to get Judge Ginsburg to provide some kind of unified theory of her life's work. Senator William S. Cohen, Republican of Maine, told her today that the suspicion that she was "basically a political activist hiding in the robes of an appellate judge" had engendered fear in some and hope in others.

But in her testimony are hints that the contradiction is more apparent than real. For Judge Ginsburg, judicial restraint is not necessarily the end in itself that some of her questioners assume it to be, but rather the best means to achieving her vision of equality.

In her view, equality -- or any other goal -- is best achieved if all branches of government have a stake in achieving it. If courts move too fast, a legal victory may be fleeting and the political support necessary to sustain it may not develop.

This is a disconcerting notion to liberals who came of age in the epic era of Brown v. Board of Education, when constitutional litigation before a welcoming Supreme Court appeared to offer the solution to the country's most profound problems. Judge Ginsburg was criticized quite sharply this spring by the abortion-rights advocates for a speech in which she said the Court had moved too far, too fast in 1973 when it invalidated all the country's abortion laws with its broad ruling in Roe v. Wade.

Skeptical Questioning

She defended that position under skeptical questioning by a liberal Democratic Senator, Howard M. Metzenbaum of Ohio. As a result of the Roe decision, she said, a formerly vigorous abortion-rights movement relaxed while the opposition rallied. Without such a broad ruling, she said, "the people would have expressed themselves in an enduring way on this question" through state-by-state legislation repealing the old restrictive abortion laws.

Several times, Judge Ginsburg stressed the importance of the other branches' taking their constitutional responsibilities seriously and not regarding the Constitution as the property of the courts alone.

"The Constitution is the Constitution for the Congress of the United States, and it is addressed to this body before it is addressed to the courts," she said. She praised Congress for having overturned a Supreme Court decision several years ago that permitted the military to deny Jewish service members the right to wear a yarmulke on duty.

"Congress realized the free-exercise right more fully than the Court did, and that issue is now settled," she said.

Great Changes Noted

There was nothing startling or even unconventional about the points Judge Ginsburg made. But the fact that she was testifying as the first Democratic Supreme Court nominee in a generation served as a marker of change during that long interval in both the Court and the country.

Not only is the Court's epic era long past, but the promise of litigation as the solution to the country's problems has itself long since been tarnished by complex realities: the persistence of racial inequality nearly 40 years after the Brown ruling, for example, in addition to the continuing struggle over access to abortion.

In an article published four years ago by the University of Chicago, Judge Ginsburg reflected on the women's rights cases she brought to the Supreme Court during the 1970's and said, "The logical progression from the 1970's litigation, it seems to me, is to another arena, not to the courts with their distinctly limited capacity, but to the legislature."

Judge Ginsburg's approach should enable her to fit comfortably on the current Court, near the center now inhabited by Justices Sandra Day O'Connor, David H. Souter and, less consistently, Anthony M. Kennedy. Although her views on particular issues may well be more liberal than theirs, her approach to judging is likely to be compatible.

Yesterday she cited Justice John Marshall Harlan as one of her judicial role models, the same Justice invoked for that purpose by Justice Souter at his own confirmation hearing three years ago.

Justice Harlan, who served from 1955 to 1971, was a Republican Wall Street lawyer and was in no sense a conventional liberal. But his expansive view of the scope of personal liberty guaranteed by the Constitution's due process guarantee put him ahead of his time, and the rest of the Court eventually caught up with him.

http://www.nytimes.com/library/politics/sc...-restraint.html

[GaryC 7]

Thats rich!!! Ginsburg as a "restraint" justice!!! Boy I tell you, the libs are really lying to themselves here.

[one...two...tree 2,762]

Thats rich!!! Ginsburg as a "restraint" justice!!! Boy I tell you, the libs are really lying to themselves here.

As one who believes that the judiciary should ordinarily take a back seat to the elected branches of government, she made easy conversation with the conservative Republicans on the Senate Judiciary committee, who have spent years exhorting judicial nominees to interpret the law and not make the law.

She told the committee that "we must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians" who impose their own vision of wise government upon society.

[britbird 4]

There is no such thing as an absolute liberal and an absolute conservative. Note the different way Scalia and Kennedy approached 'conservative' topics, even though they are both deemed 'conservative'.

judicial restraint is neither a conservative nor a liberal concept.

As soon as we get away from these ridiculously overbroad classifications the more interesting a debate we'll be able to have.

I occasionally wish that Ginsberg was still an advocate rather than a Justice - she was a formidable opponent by all accounts. Some of her more recent opinions have been pretty punchy.

I wish O'Connor was still on the bench, she was fantastic - Alito doesn't even come close.

[GaryC 7]

Thats rich!!! Ginsburg as a "restraint" justice!!! Boy I tell you, the libs are really lying to themselves here.

As one who believes that the judiciary should ordinarily take a back seat to the elected branches of government, she made easy conversation with the conservative Republicans on the Senate Judiciary committee, who have spent years exhorting judicial nominees to interpret the law and not make the law.

She told the committee that "we must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians" who impose their own vision of wise government upon society.

That is what SHE is saying. Her words and her actions do not match.

[one...two...tree 2,762]

There is no such thing as an absolute liberal and an absolute conservative. Note the different way Scalia and Kennedy approached 'conservative' topics, even though they are both deemed 'conservative'.

judicial restraint is neither a conservative nor a liberal concept.

As soon as we get away from these ridiculously overbroad classifications the more interesting a debate we'll be able to have.

I occasionally wish that Ginsberg was still an advocate rather than a Justice - she was a formidable opponent by all accounts. Some of her more recent opinions have been pretty punchy.

I wish O'Connor was still on the bench, she was fantastic - Alito doesn't even come close.

Well said, brother bird!

[one...two...tree 2,762]

Thats rich!!! Ginsburg as a "restraint" justice!!! Boy I tell you, the libs are really lying to themselves here.

As one who believes that the judiciary should ordinarily take a back seat to the elected branches of government, she made easy conversation with the conservative Republicans on the Senate Judiciary committee, who have spent years exhorting judicial nominees to interpret the law and not make the law.

She told the committee that "we must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians" who impose their own vision of wise government upon society.

That is what SHE is saying. Her words and her actions do not match.

Gary, it really depends on what POV you are looking at it from. Some would say that a woman's right to choose is in line with her Constitutional Rights, and any laws that prohibit that choice is over-reaching or lacking 'restraint'. As britbird stated, judicial restraint isn't something that only pertains to the more liberally minded judges.