The Ginsburg Fallacy

In the Wash Post, Ruth Marcus has a piece about what she calls the "Ginsburg Fallacy," the notion that Ruth Bader-Ginsburg was a total lefty on the bench and that GOP senators only accepted her on the Supreme Court out of deference to the president (this argument is made now by Republicans pushing for easy confirmation of Alito).

In fact, then-Judge Ginsburg was a consensus choice, pushed by Republicans and accepted by the president in large part because he didn't want to take on a big fight. Far from being a crazed radical, Ginsburg had staked out a centrist role on a closely divided appeals court. Don't take it from me -- take it from Sen. Orrin G. Hatch (R-Utah). In his autobiography, the Utah Republican describes how he suggested Ginsburg -- along with Clinton's second pick, Stephen G. Breyer -- to the president. "From my perspective, they were far better than the other likely candidates from a liberal Democratic administration," Hatch writes….

According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats. In cases that divided the court, she joined most often with then-Judge Kenneth W. Starr and Reagan appointee Laurence H. Silberman; in split cases, she agreed 85 percent of the time with then-Judge Robert H. Bork -- compared with just 38 percent of the time with her fellow Carter appointee, Patricia M. Wald.

More here.

Comments

[MP]

And Sununu recommened Souter. It only goes to show that past performance cannot adequately predict the future.

[crimethink]

So because Clinton was a wimp that means Bush has to be too?

[Tony]

crimethink,

Did we read the same essay? The point I think Ms. Marcus conveyed was that the nonsense Senators are spewing now implying that Judge Alito should sail through confirmation is based on distortions (at best). There should be a deference to presidential choice in this case, as in most other nominations, because Judge Alito is qualified. Barring a smoking gun, he should be confirmed. That argument is just as forceful and accurate when supported by facts. Isn't the opposition rewriting history what Bush is complaining about lately? It's different for Republicans?

[James Feldman]

No, crimethink, that's not what it means. It just means that the people who are saying that Ginsburg wanted to lower the age of consent to twelve and Republicans didn't say boo, so what gives with the Democrats not just smiling and nodding are full of shit. To call bullshit on a political tactic isn't the same as saying anything negative about Judge Alito.

[Paul]

I always get a kick out of these kinds of stories- because it's a chance to see if people would put their money where their mouth is.

So liberals defend her by noting how often she agrees with Conservative(tm) judges. So we are to glean two possible conclusions due to her rulings in split cases, which are arguably the most contentious between liberals and conservatives:

1. She's a centrist who agrees with Bork 85% of the time, therefore, everything the liberals said about Bork was hyperbole, as he too, is a centrist.

2. She's not a centrist, she's actually quite conservative, agreeing with Bork 85% of the time, and therefore liberals should have blocked her nomination.

I don't get it, Big Dan?!!

[Eric the .5b]

I think it's fair to say that some majority percentage of views of any two USSC candidates will be the same. It's the views that differ that matter.

[joe]

Paul,

Most cases that reach the federal appellate court level are not abortion-detention of terrorist-prayer in school or the like. They are technical matters of law and fact, with little or no ideological baggage.

The 85% figures tells us nothing about them from a political or ideological perspective.