European Stars and Stripes (Newspaper) - July 29, 1993, Darmstadt, Hesse \ thursday july 29, 1993 commentary the stars and stripes Page 15 a still a fog hovers Over judge Ginsburg William f. Buckley judge Ruth Bader Ginsburg got the top rat ing from the american bar association arid it is predictable that she will be confirmed by the Senate. The general mood on Ginsburg is that she should be escorted into the supreme court by the Mem Bers of the Senate judiciary committee. Stephen Markman who served As assistant attorney Gen eral for Legal policy under presi Dent Reagan wrote in the National review that he was hoping she should be asked a few questions. For instance Ginsburg came out in years gone by in favor of the equal rights amendment. You will recall that this was a constitutional revision that Wouldhave prohibited any Legal distinctions Between men and there Are hardly any such distinctions left 70 Odd years after the 19th Law against women participating in certain kinds of combat duty comes to mind but not much since judge Ginsburg was in favor of the Era we must assume that she is in favor of a constitutional elimination of any Laws that distinguish be tween men and she be inclined to reach into the 14th Amend ment to find grounds for eliminating the Protection of women in the military next Markman notes that in certain of her writing Ginsburg showed a greater hospitality for Constitution Al innovations midwife by the court than by constitutional amendment. Whereas the amendment process should be lengthy deliberative and not frequently invoked that is not the Case with judicial , the Genius of our Constitution is its supple capacity to serve through changing times if supported by judicial interpretations that Are neither too Mushy nor too t that a Mushy Way of suggesting that when there is a Felt need for a constitutional change the Best Wayto get it is through court action and on the killer Bee subject of abortion gins Burg we All know wrote somewhere along the line that Roe is. Wade based its pro Choice ruling on a doctrine of privacy whereas it would have done better to base it on Point Here is that As she views the 14th Amend ment you cannot deprive women of rights for which there is no male complement. Since one can t deny a Man a right to abort then on can t deny a woman a right to abort. Markman wonders whether based on her idea of Equality Ginsburg would deny to the states the right to require parental consent for the abortion of a teen Ager s pregnancy on the grounds that there can be no complementary restrictions on boys and would she Rule against for example the Hyde amendment which denies Federal funding for abortions judge Ginsburg has pronounced As unworkable the whole idea of original intention. Obviously we cannot look to Hamilton Madison and Monroe to enlighten us on what Are appropriate constitutional restraints on Telephone monopolies. But the question is where do we look Markman suggests the committee should persist in learning the alter native Standard by which she plans to instruct the rest of us about Pur rights and duties under the Law. The senators should also attempt to determine whether such an alternative Standard involves something resembling a Rule of Law. There is no shortage of Complex verbal formulas developed by academics and judges that boil Down to judges equating their own conscience with the dictates of the the senators Are entitled to probe this is obvious that Ginsburg is sympathetic to what we know of As judicial activism. But it is plainly a obligation of the Senate judiciary committee to explore her penchant for judicial is her own sense of the boundaries of judicial action can she come up with an instance or two in which judges acted outside these boundaries we have for instance former Justice William bran Nan who declared that capital punishment is just Plain unconstitutional period because it violates the eight amendment proscribing cruel and unusual punish ment. Or Hugo Black who said that libel Laws Are unconstitutional in that they violate the first amendment prohibition against any bar to free speech. Would these be examples of judicial usurpation Ginsburg has said that without equal Access to private clubs women Are held Back from traditional avenues of economic and political Opportunity and of. So what happens to the right of voluntary association Ginsburg is of course free to change her mind. She earned her reputation As a Litigator for the american civil liberties Union. On the other hand she has writ ten that the greatest figures on the Federal courts have exhibited a readiness to re examine their own premises Liberal or conservative As thoroughly As those of there Are those who Hope Ginsburg will beguiled by this Maxim. C unto Wal press Syndicate democrats Hope Ginsburg will Drift to the left along with Praise for Ruth Bader Ginsburg that ensures her fast track to the supreme court democrats have this Hope that her studious judicial restraint will yield to Liberal instincts once she gets there. They waited 26 years for a democratic appointment watching As Republican presidents chose the justices who turned the court to the right. Now democrats want it pushed Ginsburg s confirmation testimony has reflected a restrained View of role the court should play not the sort of activism the More ardent liberals did say that when political ave Nues become dead end streets the courts May have to intervene As in the denial of Black voting rights. Nonetheless her emphasis to the Senate judiciary committee has Beeton the limits of the judicial role not on extending its boundaries. There have been neither hostile words nor known opposition to her confirmation which prob ably will occur before Congress takes its vacation next said her approach will not be Liberal or conservative. President Clinto said in nominating her june 14 that she was progressive balanced fair and Wise. Walter r. Mears he called her a consensus builder. There Are liberals who would like a More aggressive approach and have been saying so Between their own commendations. Sen. How Ard m. Metzen Baum a Ohio said the court has been marked Byan Era of conservative judicial activism a trend that should be countered now. As an appeals court judge judge Ginsburg is Well known for her prefer ence for measured or incremental move ment in the Law he said. I m concerned she will always take a similar approach in the supreme court and i will make no secret that i Hope she will sen. Carol Moseley Braun d-i11., invoked ii dial justices of the past As mod Els for what she said should be a bold new Era at the court. It is my Hope judge Ginsburg that you will pick up the Mantle of justices Brennan and marshal land that you will once again give voice within the court to the aspirations an Hopes of the forgotten members of our sen. Joseph r. Biden jr., d-del.,the committee chairman wanted to know whether judge Ginsburg thinks the court should move ahead of society to bring change As in its 1954 school desegregation decision. He got a Law professor s reply. I would be really easy would t it to appoint platonic guardians who would Rule wisely for All of us but then we would t have a democracy would we. Judges must be mindful of what their place is in this that place she said is to stand apart from the political fray behind the peo ple and their elected representatives. Later discussing abortion rights which she supports she said that if the court had issued a More limited Deci Sion on the subject in 1973, it might have prompted More gradual changes that would have been accepted with less strife. Courts Are limited she said because they do not create the controversies they Are called upon to Settle. All of what judges do is heavily constrained by the Constitution the Laws decisions and the traditions that have been built up forever 200years," she said. That approach plays Well with republicans whose Senate leaders already have said they will support her. Sen. Orrin of Utah said her talk of restraint must be disconcerting to liberals looking for judicial activism. Still that s a buzzword complaint most often heard from critics of what the court decides of results rather than legitimacy or judicial reasoning. I resist labels like activism restraint " she said. And for All the Ginsburg record some700 decisions 79 Legal essays and speeches she carefully avoided hints Asto How she would decide on dozens of is sues that May come before the court. No previews she said not even of the reasoning that might apply. You would not Only make a Good jus Tice Biden said you Are Good enough to be confirmed As Secretary of they Don t answer All the questions either he said. Jtb associated Prest
