Thursday, September 29, 2005

Ginsburg’s Gyrations

“Any woman will not do,” Justice Ruth Bader Ginsburg told an audience at the New York City Bar Association last Wednesday.  With Judge Robert’s confirmation eminent, court watchers attention has turned to a pivotal decision facing our president: a nominee to replace Justice O’Connor.  Ginsburg, long a hero of the radical left, fed her supporters more cool aide in a speech that could easily rile any who disagree with her.  

Not wanting to be the only female on the high court, Ginsburg argues that a woman should definitely replace Justice O’Connor although “any woman will not do," she said.  “[S]ome women who might be appointed who would not advance human rights or women's rights,” the Associate Justice clarified.  That last sentence reveals that while Ginsburg would like to see a female on the court, but an ideological liberal would be much more satisfactory.  Indeed given the choice between a left leaning female like O’Connor and an off-the-deep-end radical male like Stevens, Ginsburg would probably choose the latter.

Ginsburg’s remarks last week are consistent with her insistence that the “[t]he Constitution is both color blind and color conscious.” (quoting United States v. Jefferson County Bd. of Ed (1966) in Gratz v. Bollinger (2003)).  Unfortunately, this contradiction often makes its way into Ginsburg’s judicial reasoning.  While there can be no doubt that Ginsburg views herself as an advocate for minority and women’s rights, her record hardly supports that claim.  The Ethics and Public Policy Center has made available a publication titled “The Legal Status of Women under Federal Law by Ruth Ginsburg” (publication details available here).  Two notable statements distinguish Justice Ginsburg as a fundamentalist rather then a supporter of minority rights and deserve mention here:

Ginsburg argues in favor of legalized prostitution saying that "[p]rostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions."  Ginsburg also argues against segregating prisoners by gender: "Sex segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal...If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected."

These positions are not consistent with a preservation of women’s rights and, if implemented, would demean the female gender not liberate it.

But I digress.  It is so much fun to point out the inconsistencies in liberal justices that sometimes I lose track of the question at hand.  Ah yes, Justice O’Connor’s replacement.

Does it really make a difference what race or gender the nominee is?  Where in the constitution or the bylaws of Congress does it say the high court should maintain an ethnic and sexual balance?  If all outgoing justices are to be replaced with candidates of the same ethnicity and gender, the court would still be filled with white males.

Since when was skin color the deciding eligibility factor?  Honestly, these arguments that a female should be chosen or that ideological centrist should be the pick are beginning to grate on my nerves.  These suggestions are completely foreign to our constitutional confirmation structure and have absolutely no foundation in precedent.

But precedent has never stopped Justice Ginsburg.  She said in her speech last Wednesday that “I have a list of highly qualified women, but the president has not consulted me.”  This is laughable.  Now sitting Supreme Court justices are going to “advise and consent” the president’s decision.  Maybe if you had a vote, Justice Ginsburg, the executive might seek your approval.

NOTE: Cross posted on the legal redux.