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What We Can Expect From Justice Ruth Bader Ginsburg:
Statement of Frank Askin, ACLU General Counsel
For IMMEDIATE RELEASE
September 27, 1993
WASHINGTON -- I have been asked to make a few comments on our newest
Justice because of my relationship with her over the last 30 years. I, of
course, do not pretend to predict how Justice Ruth Bader Ginsburg will
decide specific cases, and I am well aware that as a member of the D.C.
Circuit she did not invariably vote the way the ACLU would have preferred.
But I do know that she has a longstanding, demonstrated commitment to
justice, equality and other fundamental values of the United States
Constitution. And as such, I expect her to bring a constitutional
perspective to the High Court that has too often been missing since the
retirements of Justices Brennan and Marshall.
I was a student in the first class that Ruth Ginsburg ever taught. We both
came to Rutgers Law School in Newark in the fall of 1963, she as a new law
professor and me as a student. From her first day in the classroom,
Professor Ginsburg was the consummate professional with a zeal for federal
jurisprudence. The intricacies and idiosyncracies of federal procedure
were her passion, as befits a future member of the Supreme Court. It was
she who sparked my own interest in the subject matter, and when I was
graduated from Rutgers three years later and joined the faculty, Ruth was
my guide and my mentor as I joined her as a teacher of civil procedure to
the Rutgers first year classes. There was no one more knowledgeable about
the processes of the federal judicial system.
For the next half dozen years, we were faculty colleagues. If there is one
thing I can say with certainty about Ruth's interaction with her
colleagues, it is that she is a good listener and a persuasive advocate.
In academic politics, she was the least partisan of our 20-some member
faculty, but was always thoughtful and assured when it came to decision
time. She was not a back-slapper or a horse-trader, but convinced people
of the soundness of her own position by the sheer power of her intellect.
I found this same kind of quiet persuasiveness in Ruth when we served
together as ACLU General Counsel from 1976 until she was appointed to the
federal bench by President Carter in 1980. Although she had a special
commitment to issues of equal protection while she was an ACLU leader, she
also had a wide-ranging concern for all aspects of civil liberties and the
work of the organization.
I think she can be expected to perform in a similar manner as a Justice.
She will be a major influence on the Court, at least among those who are
not ideologically wedded to a particular outcome, because of her
intellectual talents and because she can usually demonstrate the rightness
of her views.
I fully expect Justice Ginsburg to make an immediate difference on the
Court in several important areas, including:
GENDER EQUALITY. With a long history of leadership in this area, Justice
Ginsburg can be expected to provide important guidance as the develops
guidelines in the area of sexual harassment, where lower federal courts
have exhibited tentativeness in trying to accommodate the rights of women
in the workplace with free speech.
ABORTION RIGHTS. Despite her much-discussed speech at New York University,
I have no doubt that Justice Ginsburg will be an ardent protector of the
rights of women to control their own bodies and will guarantee that there
will be no further erosion of the principles of Roe v. Wade. She may come
at this issue through the prism of equal protection, rather than the
principles of privacy upon which Roe was based, but I am confident that
women's freedom of choice in such matters will be well guarded by her.
RELIGIOUS FREEDOM. Ruth Bader Ginsburg has demonstrated a life-long
commitment to freedom of choice in matters of faith as well as in matters
of reproductive rights. Her dissenting opinion from the en banc decision
in Goldman v. Sec. of State, involving the right of an Orthodox Jew to
wear a yarmulke while on duty as an Army medical officer, is clear
evidence of that commitment.
AFFIRMATIVE ACTION. My own confidence that Justice Ginsburg has a personal
commitment to affirmative action programs to assist members of oppressed
minorities gain access to the social mainstream dates to her days at
Rutgers Law School. Professor Ginsburg was an ardent supporter of the law
school's affirmative action program, which was one of the earliest and
most extensive of such programs in American higher education. I am
personally confident that as a Supreme Court Justice, she will demonstrate
similar sensitivity to the problems and needs of our country's minority
FREEDOM OF SPEECH. While on the D.C. Circuit, Judge Ginsburg has
consistently demonstrated a strong commitment to freedom of speech.
Especially in the areas of libel law, symbolic speech and government
conditions on publicly subsidized speech, her views seem to be more
protective of free expression than the old Supreme Court majority.
ACCESS TO JUSTICE. I am particularly optimistic that the addition of
Justice Ginsburg to the High Court will help end the steady erosion of
rights of access to federal courts by litigants seeking to enforce
federally guaranteed rights. Both her scholarly commitment to the
integrity and independence of the federal court system and her performance
on the D.C. Circuit provide hope for those of us who have greatly lamented
the direction of federal jurisprudence in the post-Warren Court Era.
Justice Ginsburg is unlikely to side with the neo-Federalists on the Court
who have invoked concepts such as standing, justiciability, committee and
abstention to preclude litigation of important issues in the federal
courts. I am hopeful that she will take up where Justice Brennan left off
in his unwavering fight to restore federal system courts as places where
"human rights under the Federal Constitution are always a proper subject
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