Bill Clinton’s Litmus Test on Roe v. Wade

Did he, or didn't he, discuss Roe with Ruth Bader Ginsburg?

When Bill Clinton ran for president in 1992, he repeatedly promised that his Supreme Court nominees would be “strong supporters of Roe v. Wade.”

Critics had, without any evidence, accused Ronald Reagan and George H.W. Bush of applying an anti-Roe litmus test for their Supreme Court picks over the previous dozen years. The joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter that affirmed Roe in June 1992 in Planned Parenthood v. Casey belied those accusations.

On March 9, 1993, just ten days before Justice Byron White informed the White House that he would retire, Judge Ruth Bader Ginsburg gave a lecture at NYU law school in which she criticized Roe as the “most prominent example” of a “breathtaking” decision that “may prove unstable” because its “[d]octrinal limbs [were] too swiftly shaped.” Ginsburg posited that a more modest, “less encompassing” version of Roe—one that did not impose “a set of rules that displaced every state [abortion] law then in force”—“might have served to reduce rather than to fuel controversy.”

In that speech, Ginsburg observed that Roe “might have been less of a storm center had it both homed in more precisely on the women's equality dimension of the issue and, correspondingly, attempted nothing more bold at that time than the mode of decisionmaking the Court employed in the 1970s gender classification cases.” Roe “invited no dialogue with legislators” and instead “seemed entirely to remove the ball from the legislators’ court.” There had been a “marked trend,” Ginsburg argued, towards legislative liberalization of abortion statutes. But Roe triggered the formation of “a well-organized and vocal right-to-life movement [that] rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

When Ginsburg’s name first surfaced as a candidate for Justice White’s seat, some liberal women’s groups opposed her because of her critical comments about Roe in this speech. So when Clinton interviewed Ginsburg for the position, it was hardly surprising that he wanted to be sure that she was a strong supporter of the notion that the Constitution protects a broad right to abortion. And Ginsburg had ample reason to know how much that mattered to Clinton.

At a press conference a day after Clinton announced his nomination of Ginsburg, Clinton was asked about Ginsburg’s “legal theory” on Roe. “I didn’t discuss that with her,” he asserted. (See C-Span video at 14:14.) NPR’s Nina Totenberg reported her sensible understanding of Clinton’s fuller remarks: “Today President Clinton said he had not discussed the subject of abortion with Judge Ginsburg but he said he’d read her articles and speeches and took them to be in favor of abortion rights.”

But more than 26 years later, at a Georgetown law school event with Hillary Clinton and Justice Ginsburg, Clinton disclosed that he had discussed Roe v. Wade with Ginsburg before nominating her to the Supreme Court in 1993 and that their discussion was important to “why I thought I should appoint her”:

[Ginsburg] knew this perfectly well, that I was under a lot of pressure to make sure I appointed someone who was simon-pure [i.e., strongly supportive of Roe], which I had said I thought was important. But I was fascinated by a—either an article I had read or something I had read on Justice Ginsburg saying that she supported the result in Roe v. Wade but thought Justice Blackmun should have decided the case on the equal protection clause not the right to privacy. And I asked her the question and she talked about it just as if it was any other issue, no affect: “This is what I think, this is why I think it,” and she made a heck of a case…. She was telling me what she honestly believed and why. It made a huge impression on me. [See C-Span video at 20:50-21:52; start at 19:41 for context.]

Clinton’s account in 2019 of his conversation with Ginsburg in 1993 sure seems to contradict his statement back then that he “didn’t discuss that with her.” But as Clinton might put it, it depends on what the meaning of that is.

Clinton’s 2019 account is also rather difficult to reconcile with nominee Ginsburg’s sworn testimony to the Senate in 1993. The Senate questionnaire that Ginsburg completed included this question:

Has anyone involved in the process of selecting you as a judicial nominee (including but not limited to a member of the White House staff, the Justice Department, or the Senate or its staff) discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such case, issue, or question? If so, please explain fully.

In response (see p. 108 of hearing record), Ginsburg wrote:

It is inappropriate, in my judgment, to seek from any nominee for judicial office assurance on how that individual would rule in a future case. That judgment was shared by those involved in the process of selecting me. No such person discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.

But Clinton stated publicly in 2019 that he did discuss Roe with Ginsburg precisely in order to get the assurances he needed on her position on abortion. And he further stated that Ginsburg “knew this perfectly well.”

To be sure, the Big Dog can’t have known for certain what Ginsburg “knew … perfectly well” at their interview. I’m also generally reluctant to take Clinton’s word over anyone else’s. But his account in 2019 sure does ring true.

(On the other hand, Clinton bizarrely asserted in those same comments in 2019 that the “Webster decision” by a “court of appeals” helped him in his presidential election by “frighten[ing]” supporters of abortion. The Eighth Circuit’s decision in the Webster abortion case was issued in July 1988, four years before Clinton ran for president. Clinton was helped in 1992 by the Supreme Court’s ruling affirming Roe in Planned Parenthood v. Casey, which demoralized pro-life voters.)