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The Supreme Court Nominee Who Would Abolish Mother’s Day
How I hid Ruth Bader Ginsburg's incendiary positions
One of the first duties of any Supreme Court nominee is to complete and submit a response to the Senate Judiciary Committee’s onerous questionnaire. Among other things, the questionnaire calls for a list of the nominee’s publications, speeches, judicial opinions, and major cases handled as a lawyer.
When Ruth Bader Ginsburg submitted her questionnaire response (available at pp. 57–113 of her confirmation-hearing transcript), I pored through it to see what work lay ahead for me. Senator Hatch had already staunchly committed to support Ginsburg’s nomination. Immediately after Clinton announced her nomination, Hatch declared: “We’ll support her. She’s a brilliant woman with impeccable credentials.” Nonetheless, I thought it important to find both what was commendable and what was objectionable in her record. That meant that I would read through everything, including thirteen years of judicial opinions and dozens of law-review articles.
I didn’t have much time: Ginsburg submitted her questionnaire response on or shortly after June 29, 1993 (that’s the date that accompanies her signature on the last page), and her hearing began three weeks later, on July 20.
Midway through my review of Ginsburg’s record, I ran across a 212-page report on “The Legal Status of Women under Federal Law” that she wrote in 1974 and submitted to the U.S. Civil Rights Commission. Ginsburg (and her co-author Brendan Feigen Fasteau) undertook to determine whether various provisions of the United States Code “differentiate on the basis of sex.” Her report set forth these explosive propositions:
“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [p. 133]
“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [p. 72]
A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [pp. 190–191]
“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…. While the personal privacy principle permits maintenance of separate sleeping and bathing facilities, no other facilities, e.g., work, school, cafeteria, should be maintained for one sex only…. [G]ender should not be a relevant factor in determining institutional assignments [for prisoners].” [p. 75]
“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [p. 131]
Her report also recommended that the age of consent for purposes of statutory rape be lowered from 16 to 12. (See pages 69–71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.) On this last point, I will note that it appears that Ginsburg made a drafting error and that she instead meant to recommend that the age of consent for statutory rape under federal law be reduced from 16 to 12 for offenders who were less than five years older than the target and to lower the maximum penalties for adults who had sex with 12-year-olds.
If the communications technologies that exist today had existed back in 1993, Ginsburg’s report would have gone viral as soon as her name was mentioned as one of the candidates to replace Byron White. It’s unlikely that her candidacy would have survived. The attack ads write themselves:
Ruth Bader Ginsburg is a crazy radical feminist. She wants to abolish Mother’s Day and Father’s Day. She wants to make it easier for sexual predators to prey on 12-year-old girls. She wants men and women prisoners to share the same prisons. She thinks that there are constitutional rights to prostitution and bigamy. She complains that the Boy Scouts and Girl Scouts “perpetuate stereotyped sex roles.”
Is there room to quibble with some of these attacks? Sure. But they’re far more accurate than, say, your typical New York Times editorial.
I was in a quandary. Senator Hatch was going to support Ginsburg, and it was clear to me that this report wasn’t going to change that. If I shared my discovery with Judiciary Committee staffers for other committee Republicans (who were of course free to make the same discovery on their own), they might use it in a way that would put Hatch in an embarrassing situation. So I concluded—correctly, I believe—that my duty to Hatch required that I not disclose Ginsburg’s report to anyone else (other than one or two colleagues on Hatch’s staff). I instead wrote a memo for myself about it, just in case I might ever have occasion to make good use of it.
In this day and age when information races around the Internet, it’s easy to forget how different things were just three decades ago. The materials that Ginsburg submitted along with her questionnaire response were provided to the Senate Judiciary Committee, and I’m sure that the White House also made them available, in one fashion or another, to various reporters. Many of those materials (e.g., judicial opinions, law-review articles) were available to lawyers and law students via Lexis or Westlaw or in law libraries. But anyone trying to locate a copy of Ginsburg’s report on “The Legal Status of Women under Federal Law” would have had a lot of work to do.
At Ginsburg’s confirmation hearing, Ginsburg received only one question that referred to this incendiary document, a question that I drafted for Senator Hatch that quotes what is arguably the easiest of the above passages to explain away. Note how Hatch assists Ginsburg in minimizing the import of the passage. Here’s the exchange (transcript p. 274):
Hatch: Some people believe in a right to privacy that would allow almost anything, say prostitution. Let me note that in 1974, in a report to the U.S. Civil Rights Commission, you wrote, Judge, “Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions.” That is in “The Legal Status of Women Under Federal Law” in 1972 [sic], I believe. You were citing Griswold, Eisenstadt, and Roe v. Wade.
You could push it farther. How about marijuana use in one's own home? Is that a right to privacy that we should—
Ginsburg: I said “arguably.” I said it has been argued—
Hatch: I know. You were making an academic point. I understand. I am not trying to indicate that you were justifying prostitution. But the point is some people believe this right of privacy is so broad you can almost justify anything.
Does it justify marijuana use in one's own home? Does it justify physician-assisted suicide? Does it justify euthanasia? Does it justify homosexual marriage that some people think should happen and shouldn't happen? Does it justify infanticide of newborn children with birth defects?
I use these examples in this hearing not to offer my own views on any of these subjects, on whether or not they should be protected conduct, but it is my point that people who believe that such conduct should be protected must, under the functioning of our system, turn to the legislatures and not to the Federal courts to determine whether or not they should be protected.
The point is that under an amorphous constitutional right of privacy, whether or not conduct is protected does not depend on any neutral principle of adjudication, but on the subjective predilection of the judge deciding the case. And that is not the rule of law. That is government by judiciary.
* * *
A dozen years later, in 2005, when I helped found National Review Online’s Bench Memos blog on judicial matters, I finally had the first of countless occasions to make good use of Ginsburg’s report.
When I published Ginsburg’s passages, Rush Limbaugh read them on his nationwide radio show. In response, Al Franken, who had his own radio show before becoming a senator, claimed that it was “an urban myth from conservatives” that Ginsburg had ever proposed replacing Mother’s Day and Father’s Day with Parent’s Day. Indeed, Franken, in thinly veiled language (citing “the highest and closest authority” on Ruth Bader Ginsburg), informed his listeners that either Ginsburg herself or her husband had made clear that the claim was nonsense. Here’s the full passage from Franken, which begins with a clip from Limbaugh’s show:
Limbaugh clip: “You know, Ruth Bader Ginsburg is more extreme than any of these nominees that Bush has brought up. I went through this list of things she actually believes in, that came out in her testimony, such as getting rid of Mother’s Day and Father’s Day and replacing it with Parent’s Day.”
Franken to Mark Luther: “She never actually said anything about Mother’s Day and Father’s Day for Parents’ Day anywhere.”
Mark Luther: “So you think he is just fabricating this completely?”
Franken: “I think it’s an urban myth from conservatives. We got this from Thomas E. Mann, a Brookings Institute Senior Fellow on Government Studies. He told us, ‘I now have it on the highest and closest authority that Ruth Bader Ginsburg has never, in any setting, proposed doing anything with Mother’s Day.’”
It’s telling that even a dozen years later Franken and other leftists found it impossible to believe that Ginsburg had been so extreme.
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