Ruth Bader Ginsburg Interview 4

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Oral History of Justice Ruth Bader Ginsburg
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Dr. Maeva Marcus, and the
interviewee is Justice Ruth Bader Ginsburg. The interview took place in Justice Ginsburg’s
Supreme Court Chambers on August 13, 1996. This is the fourth interview.
Dr. Marcus: I do want to start this particular interview, since you now have the
transcripts, and remind you that if you would like to add anything at any
time to the topics that we talked about in previous interviews, you
should feel free to tell me stories you forgot to tell me, mention people
that you neglected to mention in the past and you would like to have in
this interview. You can do that any time.
Justice Ginsburg: I’ll keep that in mind.
Dr. Marcus: Okay. Good. Last time we were discussing the cases that you argued
before the Supreme Court, you remember, in some detail, not so much
about each case on its own, but your whole attitude toward appellate
advocacy, and I just wanted to sort of go over in general – I know that
you argued six cases: Frontiero v. Richardson, Kahn v. Shevin,
Weisberger v. Wiesenfeld –
Justice Ginsburg: Weinberger, Caspar Weinberger.
Dr. Marcus: Weinberger, Caspar Weinberger, right.
Justice Ginsburg: “Wise-en-feld,” he pronounces it. He spells it “Wees-en-feld,” but he
pronounces it “Wise-en-feld.”
Dr. Marcus: All right. Edwards v. Healy, Califano v. Goldfarb, and Duren v.
Missouri. Looking back on those arguments, is there anything that you119
wish you had done differently?
Justice Ginsburg: I looked at the transcripts of most of them. I’m satisfied that I got out
everything that I intended to get out in the course of the argument. I
don’t think that Kahn v. Shevin was a winnable case, because it came to
the Court too soon. I went through a process, as many lawyers do,
working on that case. I first heard about it when I read what the Florida
Supreme Court had ruled in Law Week. When the Supreme Court took
the case, I thought, “This is big trouble. This is a case they cannot
understand correctly at this point.”
I called the lawyer in Florida and said: “I’m with the ACLU
Women’s Rights Project. Is there anything we can do to help you in this
case?” He replied: “ I’ve taken this case as a Florida ACLU volunteer
from the start.” The ACLU had a practice that before any case was
filed in the Supreme Court, the state affiliate would at least check with
the national office. The ACLU affiliates were fiercely independent, but
Supreme Court litigation was generally controlled by the national legal
director. No one in the Florida chapter had ever consulted with anyone
in the national office. If they had, we would have counseled: “This is not
the right case to take up now. “But the Supreme Court had already
accepted the case, and there it was. The Florida lawyer was glad to
have me take it over at that point, both to write the brief and to argue
the case.
In the process of writing the brief, I decided, yes, it could be120
won. I was so persuaded that my arguments were right, but in the. end I
appreciated again what I sensed at the start – that Kahn came up too
soon after Frontiero. There was too large a risk that the Court would
regard that case, as they did, as pure favor for the woman, no
discrimination, just a little boost. I don’t think a different argument
would have been successful in Kahn v. Shevin.
Dr. Marcus: Is that the case in which I think I read that Justice Douglas may have had
some other reason for going the way that the Court did, being extra
specially sympathetic to widows?
Justice Ginsburg: Yes, he was the child of a widow, and he recalled that life was very hard
for his mother. It was also in a field where Douglas gave large deference
to the states. It was a question of state taxation, of state property tax.
The classification could be regarded as pure favor to women, and the
case involved an area of the law -taxation -where lines inevitably are
arbitrary.
Dr. Marcus: Do you have any special memories of those appearances before the
Court? Was there any one particular argument that stands out?
Justice Ginsburg: Justice Blackmun asked a question at the end of my argument in Kahn v.
Shevin. His question gave me an opportunity to distinguish race
discrimination from sex discrimination. You can see the question and
the answer in the transcript. Justice Blackmun’s question also gave me
some minutes to talk after the red light flashed on. I remember that
moment and thinking I had found no way to fit into my main argument121
the answer I gave. I was so glad Justice Blackmun asked me that
question. He seldom asked questions from the bench, but on that
occasion, he asked me a key question, and gave me an opportunity to
say something I consider important.
Dr. Marcus: Do you have any memories of your opposing counsel in those cases?
Justice Ginsburg: Yes.
Dr. Marcus: You do?
Justice Ginsburg: I remember the opposing counsel in Kahn v. Shevin. He was a very
bright, nice young man from the Florida Attorney General’s office. The
Justices had been rough on him the first day of his argument as appellee.
His argument was carried over from an afternoon and resumed the next
morning. When argument hours ran out, the Court recessed . Lawyers in
the uncompleted case would come back for the next session. After a
noon recess, the lawyers would resume at 1:00 p.m., and if a case
remained unfinished at 3: 00p. m., the argument resumed the next
morning. I remember telling Florida’s attorney on the way out following
the afternoon argument that I thought he had done a terrific job, facing
up to the difficult questions and the signs of impatience coming from the
bench. I remember thinking he was a talented lawyer.
I remember the lawyer who argued for the government in both
Wiesenfeld and Goldfarb. His brother is to this day in the SG’s [Solicitor
General] office. His brother’s name is Kent Jones, and his name is Keith
Jones, and he was a fine advocate for the United States.122
I don’t remember who argued Frontiero for the government, and
I don’t remember who argued for Louisiana in Edwards v. Healy, but I
remember thinking that that case, Edwards v. Healy, was not as well
argued for the state as Kahn v. Shevin was. And in Duren if I recall
correctly, opposing counsel was a woman from the State Attorney
General’s office.
Dr. Marcus: Missouri?
Justice Ginsburg: Yes.
Dr. Marcus: Did counsel on the other side ever make you change an argument that
you had planned?
Justice Ginsburg: No, but when I was on the downside, that is, when I was representing
the respondent or the appellee, I always had my brief in draft before I
received the brief I was answering. If you wait to get the petitioner’s
brief, there’s a large temptation to write your brief as a series of “not
so’s,” in a negative way: “No, this is not my case.” It’s better to lead
from strength, to tell your story positively. So that’s why I sought to
have my main argument down before I got the other side’s brief Then
you make certain adjustments. Many of those adjustments I put in
footnotes because I didn’t think there was enough in the opposing brief
to damage the argument I had made. So I often answered points made
in the other side’s brief in footnotes. Remember, the Supreme Court is
not the first round. The arguments had been rehearsed in at least one
court or, more often, two courts before you got to the Supreme Court,123
so there were seldom any surprises.
Dr. Marcus: I know you argued cases below as well. Did a judge or justice ever
introduce an element of the case that you were not prepared for?
Justice Ginsburg: If there were threshold barriers, procedural barriers, I generally knew
they were there. So I don’t recall not being prepared for something that
was raised. I don’t remember a judge ever bringing up something that
the other side or my moot court judges hadn’t raised.
Dr. Marcus: Did you have a personal relationship with any of the parties in these
cases?
Justice Ginsburg: I had, and still have, a very close relationship with Stephen Wiesenfeld.
Dr. Marcus: Really? Can you tell us about that?
Justice Ginsburg: That case started when Stephen Wiesenfeld was struggling to bring up
his newborn son as a single parent. He wrote a letter to the local
newspaper in Edison, New Jersey, where he lived. He described his
situation. He said: “I’ve heard a lot of talk about women’s lib[eration],so
let me tell you about my life.” He described what had happened. His
wife, healthy to the moment she was taken to the hospital for childbirth,
had an embolism, died instantly, but the baby was saved. Stephen vowed
that he would take care of his child personally. There were no Social
Security “mother’s benefits” to aid him because he was a father, not a
mother. So he told his story, and the tag line was: “Tell that to Gloria
Steinem.”
A woman who taught Spanish at Rutgers, her name was Phyllis124
Zatlin Boring – I think she has since dropped the last name-read Stephen
Wiesenfeld’s letter in the local paper. She called me and asked: “Is that
right?” And I said: “Sounds like a denial of equal protection to me. You
might suggest that he call the local ACLU.” She did, and that’s how the
case began.
I met Stephen in person for the first time when I was on the train
to Trenton to argue his case before the three-judge district court. He
accompanied me to the argument. En route, we talked mostly about his
babysitting problem. He called me from time to time, more often about
babysitting arrangements than about the legal issues in his case, in which
he was most interested. But immediately, what his life depended upon
was having competent help for the hours he was not able to be at home.
We remain friends. Stephen said he wouldn’t go back to work
full time until his son Jason was in school full time. And it happened just
that way. Stephen, who lived in New Jersey then, moved to Florida,
where he lives even now. His son Jason was bar mitzvahed when I was
on the D.C. Circuit. A talented law clerk in Ab Mikva’s chambers made
a collage I gave Jason as a gift. It shows that 1975 New York Times
article on the Supreme Court’s decision and is lettered at the top:
“Zedek, zedek …,” Hebrew words from Deuteronomy, meaning
“Justice, justice shall thou pursue ….” Stephen testified at my Senate
confirmation hearings.
Dr. Marcus: Really? For the D.C. Circuit?125
Justice Ginsburg: No.
Dr. Marcus: For the Supreme Court?
Justice Ginsburg: Right. Right. And Jason is today a second-year law student at
Columbia Law School. (Jason will be married in September 1998, and I
will officiate at the wedding.)
Dr. Marcus: Oh, how nice. What was his father? What was Stephen?
Justice Ginsburg: Stephen was, early on, a computer expert, and still works in computer
programming.
Dr. Marcus: Well, that’s really nice. Is he the only one that you have had a personal
relationship with?
Justice Ginsburg: He’s the only one with whom I have had an enduring close relationship.
I had a personal relationship with many other clients, but no other quite
like that.
Dr. Marcus: That’s nice. I know last time when we talked about Frontiero, you told
me that Justice Brennan had paid you the highest compliment by
adopting some of your language, rationale, from your brief Did that
happen in any of the other cases that you argued?
Justice Ginsburg: Not to the same extent, but I could always trace some things, even in
Craig v. Boren, a case in which I didn’t write the brief for a party, I
wrote a friend-of-the-court brief. Some of that brief shows up in
Brennan’s opinion.
Dr. Marcus: That’s really nice. Well, I think the time has finally come where we can
get you to the –126
Justice Ginsburg: The D.C. Circuit?
Dr. Marcus: D.C. Circuit, which is the reason for these oral history interviews, unless
you can think of some other digression. I think we’ve covered most
everything that was important up to that point.
Justice Ginsburg: Good. Let’s proceed to the D.C. Circuit.
Dr. Marcus: Well, I wanted to know when you first learned that you were being
considered for the bench, or perhaps whether you sought the
nomination.
Justice Ginsburg: One had to seek the nomination in Carter’s time. For courts of appeals,
he had set up panels, merit selection panels, and it was necessary for one
who wanted to be considered to complete a rather burdensome
application. I filed applications for the Second Circuit and for the D.C.
Circuit. In both cases I was asked to apply. I was quite surprised to get
a call from the D.C. nominating panel, from Joe Tydings, who headed
the panel. He called and invited an application.
I immediately called Ed Walsh, who headed the Second Circuit’s
panel, and asked: “If I file an application with the D.C. Circuit panel,
will it diminish my chances for the Second Circuit?” Ed said: “No, it can
only help. Go ahead and do it, Ruth.” To my surprise and
disappointment, the sole reason the Second Circuit panel gave for not
including me on their list was that my name already appeared on the list
for the D.C. Circuit.
Dr. Marcus: You sort of answered one of my questions, which was, would you rather127
have been nominated to a different circuit?
Justice Ginsburg: At the time, probably yes, but in retrospect, it was one of life’s great
breaks for me that I served on the D.C. Circuit. It was an extraordinary
court, both in terms of the personnel and the kinds of cases the court
had.
Dr. Marcus: Was any person particularly influential in finally obtaining the
nomination for you once you had applied?
Justice Ginsburg: I can’t say, because I hadn’t sought the D.C. Circuit nomination. I filed
the application and came for the interview. People on the panel that I
then knew, not well, no doubt were supportive, two people in particular,
Marna Tucker and Patricia King. Both have since become close friends.
They were helpful in responding to questions other people on the panel
asked, for example: “Wouldn’t it be burdensome to commute from the
District back to New York?” I asked in return: “What leads you to
think I would live in New York if I got a D.C. Circuit appointment?”
Even then – this was what, 1979?
Dr. Marcus: Well, 80 was –
Justice Ginsburg: 1980?
Dr. Marcus: I note Judge Leventhal, I believe, died Thanksgiving of ’79.
Justice Ginsburg: Yes, but I was on the list months before his death.
Dr. Marcus: So you were on the list well before –
Justice Ginsburg: Yes. It was ’79. Right. Joe Tydings said to me: “Ruth, you’re on our
list. You won’t get the first two appointments under the judges’ bill.128
Those will go to Pat Wald and Ab Mikva. But there will be more
vacancies.” He certainly didn’t anticipate Judge Leventhal’s death. He
simply predicted: “There will be more vacancies, and eventually you will
be on that court.” I think it was in the spring of ’79 that the D.C. panel
listed me.
Dr. Marcus: I didn’t realize that. I always thought you had been specifically
nominated. Well, you obviously were for Judge Leventhal’s seat, but I
didn’t hear that they –
Justice Ginsburg: No. They were going down the list.
Dr. Marcus: Just going down the list?
Justice Ginsburg: The two new seats were authorized, and Pat and Ab took those seats.
The next vacancy occurred when David Bazelon took senior status.
Harry Edwards, who had been on the list together with me, got that
seat. After that, there was the vacancy resulting from Judge Leventhal’s
death.
Dr. Marcus: Do you think being a woman had anything to do with getting on that
list?
Justice Ginsburg: Definitely.
Dr. Marcus: Yes?
Justice Ginsburg: Carter was the first president in history to make an effort to look for
talent where people hadn’t looked before. Until his administration, the
old-boys’ network held sway. It was a pretty good network of top
people in top law firms. But President Carter thought there was a lot of129
talent out there that wasn’t being attended to, and so for both women
and minorities he made a large difference. I put it this way: Carter
changed the complexion of the U.S. courts, although he never had the
opportunity to appoint a Supreme Court justice. He made our federal
courts reflective of all the nation’s talent. He looked for talent in places
where people hadn’t looked before. After his start, there could be no
return to old ways. The appointment of minorities and women to the
federal bench slowed somewhat in the Reagan-Bush years, but it
certainly didn’t stop. Both Presidents, both Republican Presidents,
continued to look for and to appoint women and minorities. The
Supreme Court is the stellar example. Reagan very much wanted to
appoint the first woman to the Supreme Court, and he succeeded
admirably.
So Carter changed the old-boys’ network, the men’s-club
atmosphere of the federal courts, and he did it by telling the selection
panels: “I want you to look for talent among all of the people of the
United States,” including law school faculties, public defenders’ offices,
the public-interest bar. I never would have become a federal judge if it
hadn’t been for, first, the Women’s Movement, then Carter’s
determination that the federal courts would be enriched if highly
qualified people of diverse backgrounds served on the bench.
Dr. Marcus: And did those selection panels go out of existence with the Carter
presidency?130
Justice Ginsburg: Yes. I don’t know what system Reagan used, but he didn’t use the merit
selection panels.
Dr. Marcus: Has anyone used it again?
Justice Ginsburg: No.
Dr. Marcus: And do you think that that was a good system? Do you think it came up
with –
Justice Ginsburg: It was better in some places than in others. In some places there were
political aspects to it that were not so nice, but on the whole, I think it
accomplished what Carter wanted it to accomplish.
Dr. Marcus: I remember reading a law review article about the appointment of Dick
Phillips to the Fourth Circuit that was really very interesting. I guess the
evidence isn’t yet in as to the difference between the appointments made
under that system and the appointments made subsequently to that
system, but I’m sure political scientists will be examining that kind of
thing in the future.
Justice Ginsburg: Let me interject that Carter had merit selection panels only for the courts
of appeals.
Dr. Marcus: Right.
Justice Ginsburg: The district courts were tied in too closely with the senators. Those
appointments had always been the senators’ prerogative, so Carter
encouraged senators to have similar committees of their own, and
Senator Moynihan, for example, did. He had a committee of
distinguished lawyers aid him in selecting candidates, selecting nominees131
for the district courts. I think he and D’Amato to this day rely on such
committees.
Dr. Marcus: But probably not most of the other senators.
Justice Ginsburg: Probably not.
Dr. Marcus: Had becoming a judge been an ambition of yours?
Justice Ginsburg: Not early on. There just weren’t any women one could look to as
examples. When I graduated from law school, there was no woman on
any federal appellate bench. There had been Florence Allen. She was
appointed by President Roosevelt in 1934. She was already retired.
Shirley Hufstedler, appointed by President Johnson, in 1961 was not yet
on the federal bench. So it wasn’t a position to which you could aspire.
Federal judging wasn’t a woman’s job until Carter. When Carter became
President, there was only one woman at the court of appeals level,
Shirley Hufstedler. She became the nation’s first Secretary of
Education. Carter appointed at least eleven women to courts of appeals
and many more women to district courts.
Once it became a real prospect for me, I was very interested, but
I never even thought about it as a possibility until Carter became
President and made it his mission to enrich the judiciary by including
people who were once left out.
Dr. Marcus: And when you did think about it, did you want especially to be an
appellate judge rather than a trial judge?
Justice Ginsburg: Yes. I thought by temperament, I was not well equipped to be a trial132
judge. It takes a certain skill to do that. It’s in some ways the most
powerful job in the federal judicial hierarchy. A court of appeals judge
has no power alone. She must carry at least one other mind to do
anything that counts. A district judge is alone in the courtroom for the
duration of the trial. We have a final judgment rule, which means that,
for the most part, people can’t take appeals until the whole case is done,
until the district court has disassociated itself from the case. So the
district judge sitting alone in the courtroom is like the lord of a fiefdom.
Appellate benches operate differently. It’s a collegial process.
Appellate judging, I think I may have said at an earlier point in this
interview, was best appraised by Carl McGowan, a truly great judge and
fine human. Carl said appellate judging and teaching law are more alike
than any other two ways of working in law. The routine of preparing,
then having a public encounter – a class for a law teacher, the oral
argument for an appellate judge – then returning to one’s office for more
reading, thinking, and writing. That routine of an appellate judge
resembles the law teacher’s routine of preparing for class, teaching the
class, returning to one’s office, preparing commentaries for law reviews.
Preparation, reading, researching, a public session, and then more
reading, reflection, and writing – that is the regimen for both law teacher
and appellate judge. Appellate judging thus seems a life natural and
entirely comfortable for me.
Dr. Marcus: Do you think, though, that private practice is good preparation, even for133
appellate judging? I know people say you need to do it to be a trial
judge, I guess.
Justice Ginsburg: It is good preparation, as you suggested. It is, in my view, not
indispensable. Some very good judges agree. I once asked Alvin Rubin –
who was a fine Fifth Circuit judge and, before that, for many years a trial
judge – did he think law firm experience was necessary to the making of
a good advocate. His answer was no.
Dr. Marcus: You said a good advocate. Or even a good –
Justice Ginsburg: Or even – even a good –
Dr. Marcus: I meant a judge.
Justice Ginsburg: Oh, or a judge, yes. I think a collegial bench, a court of appeals bench,
should represent a mix of experience. So in the collective you have
someone who was in a law firm for many years, someone, say, in the
D.C. Circuit who was in the legislature, someone who had a position in
the executive branch. Our combined experiences make the court a richer
institution than it would be if we were all cut from the same mold.
Dr. Marcus: I think that’s important, too. In the end, as you said, you were
nominated to Judge Leventhal’s seat because of his untimely death. Did
you know Judge Leventhal?
Justice Ginsburg: Yes. I knew two people on the D.C. Circuit fairly well, Carl McGowan
and Harold Leventhal. Both had strong ties to Columbia Law School.
They were very loyal to that law school, and they visited any number of
times to give a talk, to judge a moot court.134
Dr. Marcus: And did you follow Judge Leventhal’s opinions when he was on the court
or because you didn’t do much administrative law?
Justice Ginsburg: With awe I did.
Dr. Marcus: Right. Yes.
Justice Ginsburg: And I attended to his debate with Judge Bazelon in those years about the
best way to instill some discipline, have some control over the
administrative process.
Dr. Marcus: So I take it that you were honored to be taking his place on the court.
Justice Ginsburg: I don’t like to think about it that way because I couldn’t fill his shoes. I
had my own strengths and weaknesses, but I was honored to be on a
court that had been served by a Harold Leventhal, there’s no question
about that.
Dr. Marcus: We were very close to him. My husband was his first law clerk. I knew
him in the very beginning. He was kind of my mentor in Washington,
and helping me with my book on the Steel Seizure case. I was very fond
of him, too. Can you describe what the confirmation process was like
for the D.C. Circuit position?
Justice Ginsburg: The Department of Justice told me it wasn’t necessary for me to do
anything once the President put my name before the Senate. I didn’t
follow that advice. I was told, by the people active in the Women’s
Political Caucus, particularly Susan Ness, and by Herman Schwartz, who
was then working for Senator Metzenbaum, also by John Shattuck, then
head of the ACLU’s Washington office, that it would be a good idea for135
me to inform each member of the Judiciary Committee that if a senator
wanted to meet with me, I would be glad to visit. And in fact I did visit
most of the senators on the committee. That was important because I
had been billed as a flaming feminist. (I am, of course, a feminist, but
too many people still don’t understand what that term means.) Some of
the people on the Committee had a different vision of me than the
impression they gained after we spoke. Two people particularly, Susan
Ness, then of the Political Caucus, and Judy Lichtman, who headed the
Women’s Legal Defense Fund, were my introducers. They came with me
to meet members of the Judiciary Committee, those willing to see me. I
think that made all the difference.
Dr. Marcus: Was there opposition to your appointment?
Justice Ginsburg: Not any real opposition. There was only one negative vote in the
Committee, Senator Thurmond. Before the full Senate, I was confirmed
by voice vote. Senator Thurmond didn’t meet me. He did meet me in
connection with my nomination to the Supreme Court. We got along
just fine. And he told me a story, I don’t remember the details,
explaining how it came about that he didn’t vote for me the first time.
Now, what did I –
Dr. Marcus: We were talking about opposition to your nomination.
Justice Ginsburg: An organization called United Families of America sent a woman to
testify against my nomination. She entered the hearing room in the
company of two tall men. She delivered her lines. Senator136
Metzenbaum chaired my hearing, and he was merciless with her. I spoke
to her afterward. If I had another half hour’s conversation with her, she
might have testified for, not against, my confirmation. She was a woman
who had many of the same experiences I had. I don’t know whether that
organization was real or was created or pressed into service for the
purpose, but it produced the only witness against me.
What made me invulnerable – and this was terribly important. I
should have mentioned it at the very start. The American Bar
Association had given me its highest rating. In those days they had an
“exceptionally well qualified” rating. That made me invulnerable on the
merits. The only thing opponents could do was to stall my nomination
so we would get into the situation President Clinton is in right now. He
can’t get his nominees through because the Republicans are anticipating,
perhaps, a victory in the election. That spring of 1980, Teddy Kennedy
was the chairman of the Committee. He was running in the Democratic
presidential primaries. He was often out of town. Thurmond’s mission
was to keep me from getting on the Committee’s agenda. Once I got on
the Committee’s hearing agenda, the rest was rapid. But having the
ABA’s highest rating was the single most important thing, the most
important credit I had.
Now, I attribute that rating to a woman in this town. An old-
girls’ network was in gear with Susan Ness and Judy Lichtman, and
probably most vital, Brooksley Born. Brooksley was then a member of137
the ABA’s Judiciary Committee. She later became its head. In 1980,
she was the D.C. representative for the ABA Judiciary Committee. She
conducted the interview with me for the ABA Committee and, I think,
carried the brief for me into the room when the Committee gave me its
“exceptionally well qualified” rating.
Dr. Marcus: That’s very good. Did you prepare, or how did you prepare for these
meetings or your confirmation hearing at the Senate?
Justice Ginsburg: I didn’t prepare for the meetings, except to this extent. I read up on each
of the senators so I would be able to say something nice about the state
or something the senator had done. To be totally honest about my
hearing itself, hearings for court of appeals nominees are not like
hearings for Supreme Court nominees. The Committee must have been
very busy in the spring of 1980. I was asked to submit questions that
might be put to me during the hearing. [Laughter] So of course I was
prepared with answers. [Laughter]
Dr. Marcus: You were prepared. That’s a good system. My next question was going
to be a little bit more complicated, about your feelings about the process
and how it does compare or did compare to what you went through
subsequently as a Supreme Court nominee. But I think I’d better change
the tape.
Justice Ginsburg: Okay.
Dr. Marcus: Okay. Before I changed the tape, we were talking about the
confirmation process, and I wanted to ask you how the process for your138
nomination for the court of appeals compared to the process when you
were nominated to the Supreme Court.
Justice Ginsburg: For the court of appeals, once I was voted out by the Committee, the
rest was pro forma; it was going through the motions. For the Supreme
Court, there’s been a large change since pretelevision days. I can explain
it this way. When President C l i nt o n nominated me, the former Chief
Justice, Chief Justice Burger, who had served on the D.C. Circuit, came
to my chambers to congratulate me. Wasn’t that a lovely thing for him
to do. He said: “Ruth, let me tell you about my hearing in 1969. It
lasted no more than an hour.”
And I said : “Chief, one word explains the difference; the word is
television.” Senators like to be in touch with their constituencies.
Hearings offer them free television time, so they can hardly pass up the
opportunity to have a public show. Now, I think it’s good to have a
televised hearing for a Supreme Court nominee, but I also think the
hearing could easily be compressed into one day. It does not have to go
on for a week. I think it’s good for the nominee to have the experience
of responding to questions hour after hour. After all, for the rest of my
life I will be asking the questions. You will never forget, once you’ve
had those lights trained on you and you’ve been sitting for hours in your
chair below the interrogators answering questions, what it feels like to
be on the receiving end of questions. Also, we are appointed to a life-
tenured position. There is a tremendous amount of authority in what the139
Court does collectively. There ought to be some time when you are
subject to the judgment of the people of the U.S. And also it gives the
nominee a chance to think out her positions on things and try to be
almost an advocate for what she believes about the sound development
and administration of the law. So although I thought the process went
on much too long, in retrospect I’m glad there was a process and that I
had that opportunity to have conversations in public with the members of
the Committee.
Dr. Marcus: What do you think about having a hearing for a court of appeals
nomination? You said you were asked to write your own questions. So
one would say, “Why bother?”
Justice Ginsburg: And it was not a hearing just for me. There were two court of appeals
nominees and six district judge nominees on that same day. As I
remember, there was no television for that hearing. It is mainly a
ceremony, seldom a newsworthy event.
Dr. Marcus: I just wondered if you thought it served any useful purpose, the personal
appearance. You know, in the old days, of course, there was not even a
personal appearance. It has nothing to do with TV, but, as we know,
the Senate decided on nominees without ever seeing the person face to
face. Do you think it serves a healthy purpose to at least have you
appear for a few minutes, meet the committee as a whole?
Justice Ginsburg: It may serve a purpose in affording opponents of the nominee an
opportunity to speak. But for the nominee herself, I doubt its utility.140
Only two senators attended my hearing, Senator Metzenbaum, who
chaired the hearing, and Senator Dole, who was the Republican
presence. Yes, there should be a way people who have things to say
about the nominee can be heard. But that opportunity doesn’t necessarily
have to take the form of a hearing. Still, if the hearing has any non-
ceremonial purpose, I’d say it is to give people a chance to say why this
person should not be appointed.
Dr. Marcus: Did Senator Dole ask you any questions?
Justice Ginsburg: No, but he did ask to have the record held open on me indefinitely
because I was a “controversial candidate.” I was surprised when told
about that (I had left the hearing room before he made the request). We
had gotten on fine when we met. Later, I was informed that Senator
Dole had no design to hold up my nomination. He even commented, so
my informant said: “Of course I’m going to vote for her. She’s just like
my wife.”
Dr. Marcus: That was nice. Actually you live in the same place. Now, are you
friends? I mean, do you see them?
Justice Ginsburg: We meet at the swimming pool occasionally, and at the elevator. Bob
Dole offered me a ride to the Court during last winter’s blizzard. He
invited everyone in Watergate South a few years ago to a Christmas
party held at his offices in the Senate. He’s a very good neighbor.
Dr. Marcus: Was that first time you had met him, when you had your confirmation
process?141
Justice Ginsburg: Yes, when I was nominated to the D. C. Circuit, yes.
Dr. Marcus: Well, that’s nice. Before we move any further on the court, I was
curious to know what you thought about moving to the District of
Columbia, because you said you applied to both circuits and at that time
you probably would have preferred to stay in New York. What did you
think about moving?
Justice Ginsburg: First, I had misgivings. I had lived all my life in New York. It’s a very
lively town, and I thought there was no other place I could live as happily.
After I spent six months living in D.C. and went back to New York for
the first time, I felt assaulted by the noise, put off by the dirt, I couldn’t
understand how I had coped with it all those years. By the third day on
that return visit, I was as oblivious as I had been before.
What I found in D.C. was that life was less hectic, things were
easier to manage. There wasn’t the same variety in theater or music, but
what there was much more accessible. You didn’t have to line up the
moment Mostly Mozart was announced to get tickets, for example. At
Kennedy Center concerts, generally you could get tickets, perhaps not
the best in the house, but tickets the day before, for performances you
wanted to attend. My son, who was fourteen when we moved here,
became a super in the Washington Opera for Menotti’s production of
Cenerentola, something he could not have done at the Met, where the list
of would-be supers is so long. My daughter made an interesting
observation. She said : “If you had moved to D. C. when you were in142
your twenties or thirties, you might not have liked it so much, but you
moved in your middle forties, and then you were ready for a calmer life.”
There may be some truth in that.
Dr. Marcus: You moved at a good time, too, because the Kennedy Center was here.
That made a big difference.
Justice Ginsburg: We live right next door to the Kennedy Center. What a joy that is for
me. Marty and I don’t argue about too many things, but one thing we
constantly argue about is time. He likes to be early, doesn’t mind being
the first one there. I’m generally on time but barely, and don ‘t mind
being the last one. So with the Met and Lincoln Center across town, I
finally got to the point of saying: “Take your own taxi. I will meet you
there. I won’t miss the curtain, but I can do without anxiety on the
way.” And here we are literally five minutes away from the curtain.
Dr. Marcus: That is very convenient. That’s really nice. Well, I think you became a
judge in July of 1980. Is that when you took your judicial oath?
Justice Ginsburg: In fact, in June 1980. I was sworn in in Skelly Wright’s chambers. He
was then Chief Judge of the Circuit.
Dr. Marcus: And is there any kind of ceremony, I mean aside from the swearing-in?
Did the court welcome you in any kind of way?
Justice Ginsburg: I didn’t have a swearing-in ceremony because I had reservations about
being sworn in twice. For the job I now hold, I was sworn in three times
(in the Chief Justice’s chambers, at the White House, and in the
Courtroom, in chronological order). At the D.C. circuit I was sworn in143
privately in Skelly Wright’s chambers, so I could begin work immediately
in mid-June. Then we had a welcoming ceremony at the court in
September, after the summer, when people were back in town. I didn’t
take a second oath at that ceremony. I did have my commission read by
a dear friend, then an Assistant Attorney General heading the Tax
Division at Justice, M. Carr Ferguson. And Gerry Gunther, friend and
great constitutional law scholar, made remarks. But we called the event
a welcoming ceremony rather than an investiture.
Dr. Marcus: And that’s for anyone who came on the bench?
Justice Ginsburg: No, I was the only one during my years at the D.C. Circuit who didn’t
take the oath twice. Others were sworn in in the Chief’s chambers and
later had a formal oath-taking.
Dr. Marcus: Do you think that when you take that oath, judges should give up their
political views for which they were chosen when they were appointed?
Justice Ginsburg: I don’t see how you give up what you are or what you believe. On many
questions the difference between being a judge and being a legislator is
apparent. What I would vote for in Congress is not necessarily what I
will decide in a judgment for the Court. I understand the difference in
those roles. But judges don’t come to the bench – shouldn’t come to the
bench – with an empty mind. There’s a difference between a mind that is
not closed and one that’s empty. A judge’s mind should not be closed.
But, of course, we come to the bench at ages pretty close to fifty. We
have ideas formed through a lifetime of studying, learning, and144
observing. And we don’t, we shouldn’t, try to erase those ideas from our
minds.
Dr. Marcus: Do you remember any case where the law led you to decide one way but
your personal predilections were so strongly the other way that they
would have led to the opposite decision or the opposite result?
Justice Ginsburg: That’s true in every death penalty case in which I have participated.
Dr. Marcus: Really?
Justice Ginsburg: I’m part of a collegial court. I respect the precedent of this Court, and as
long as I’m going to operate as a member of the Court, I have to accept
that control. I can help qualify a precedent that’s in need of reshaping,
but I am not a royal queen. I don’t have the prerogative to reject prior
decisions of this court simply because I disagree with them. The fidelity
all nine of us owe to the law, to the precedents of this Court, require us
to decide things as judges that we would not decide if we were king and
queen.
Dr. Marcus: When you got to the court of appeals, what was the atmosphere like
there?
Justice Ginsburg: Stimulating. We had a truly wonderful man in Carl McGowan. I said
many times that the D.C. Circuit had no king, but it did have a prince.
Carl McGowan was that prince. He was so liked and respected that
people who might otherwise have been what I call “prime dons” tended
to behave in his presence. He was everything a good judge should be.
He was my constant advisor on the court. He never tried to give me145
unsolicited advice, but he was always there when I needed a sage
counselor.
I was surprised to learn that the people who might have been
regarded as closest politically were not the closest socially. For
example, David Bazelon and Skelly Wright were not close friends. Skelly
Wright’s best friend by far on the D.C. Circuit was Ed Tamm, who, in his
former career, had been second in command to J. Edgar Hoover.
Dr. Marcus: Right.
Justice Ginsburg: People’s affinities for each other did not divide along party lines, and that
somewhat surprised me. Republican appointee, George MacKinnon, was
not a particularly close friend of Roger Robb or of Malcolm Wilkey,
both Republican appointees. So there were no tight alliances based on
party affiliation or which President made the nomination.
Dr. Marcus: But did you feel any special affinity with the Carter appointees? Of
course, you were relatively new.
Justice Ginsburg: I knew Harry Edwards. We were both in the law teaching business. I
knew and liked Harry from the first time we met. I was closer to Harry
than to the other Carter appointees. David Bazelon was proud of
Carter’s appointments, and he regarded us all as his children in some
way. He would take us along for lunch, one or two at a time, at the
warehouse of the District’s largest liquor distributor, a man well into his
90’s, Milton ….
Dr. Marcus: With a K.146
Justice Ginsburg: Kronheim. David Bazelon would call and say: “Ruth, we’re going to
Kronheim’s for lunch today.” He wouldn’t say: “Would you like to go?”
He’d just say: “We’re going, and we’ll pick up Bill Brennan on the way,”
or, “We will stop for Thurgood on the way.”
Dr. Marcus: And by the time you got on the court, Judge Bazelon had taken senior
status.
Justice Ginsburg: Yes, he had taken senior status leaving the vacancy that Harry Edwards
filled, but he was still a participating member during my early years on
the court.
Dr. Marcus: And did you have any feeling about how the court as an institution
treated women appointees?
Justice Ginsburg: They were learning. Pat Wald was the first woman appointed to the
D.C. Circuit. She was appointed some nine months before I was. The
first woman ever appointed to any district court was Burnita Shelton
Matthews. She served on the District Court for the District of
Columbia. She was appointed by Truman in ’49, I think. When she took
senior status, June Green was appointed. But there had been no women
on the court of appeals, and the men were not accustomed to dealing
with women as judging colleagues. That showed up in various ways,
sometimes in a protective way.
I recall a day when Judge MacKinnon was presiding and I asked a
question. The other judge sitting with us asked a question on the heels
of mine and the lawyer proceeded to answer that second question. Judge147
MacKinnon admonished the lawyer: “Answer Mrs. Ginsburg’s question.
She asked you first, and you haven’t answered her question.” My
reaction to that, although I said nothing in the courtroom, was: “I can
fend for myself. I don’t need this man to tell the lawyer he should
answer my question.”
Particularly remarkable was a time when Skelly Wright chaired a
committee to choose a new chief staff counsel. Pat Wald and I
completed the committee. The First Circuit had recommended their
then-chief staff counsel, Judy Norris. She had done the job there very
successfully for some years. She had two grade-school age children.
Skelly, when we met to decide on the person to whom we would make
the offer, said : “She is very good, but she has two children in grade
school. Can we really count on her?” Nonplussed by his question, I said:
“Skelly, Pat has five children and I have two, and you’re asking us that
question?” He said: “Ruth, you don’t have any children.” I reminded
him: “Skelly, you’ve met my daughter and son.”
Well, he had pegged us. Pat was Wonder Woman. He knew
about her. She had been very prominent in public interest work in the
D.C. area. She was Wonder Woman. And I was Ruth Ginsburg, lawyer,
advocate, unencumbered by children. That was his vision, the vision of
a judge known to be most “liberal.”
Now and then I heard comments from my colleagues about
women who argued before the court in a soft voice. A colleague might148
say: “I could hardly hear what she was saying.” So every time a guy
spoke softly, I made sure to bring that out: “I could hardly hear what he
was saying.” There was also a tendency to notice the clothes women
arguing before the court wore. So I now and then commented: “Wasn’t
that a colorful tie?” or, “Do you think it was appropriate to wear a tie
like that to court?” Learning experiences were needed for judges not
accustomed to dealing with women as peers. They were accustomed to
dealing with women as wives and daughters and secretaries. I regarded
it as a challenge, and I think the level of understanding increased over
time. The respect accorded women as judges and lawyers, it seemed to
me, increased noticeably during my days on the D.C. Circuit.
Dr. Marcus: Did you see a difference when you got here? You were the second
woman in the D.C. Circuit and the second woman here.
Justice Ginsburg: Yes. And the second woman at Rutgers. Sandra Day O’Connor had
been here alone for twelve years when I was appointed. An amusing
sign of the change. There was a priority renovation job ordered for our
robing room to mark my appointment. The Court installed a women’s
bathroom equal in size to the men’s. Before my appointment, there was
only one bathroom, the men’s bathroom. Sandra would have to return to
her chambers if need be. The women’s bathroom indicated that, yes,
women are here to stay. The Court made an alteration anticipating a
Court with at least as many women as men.
Dr. Marcus: Do you think that this Court had more difficulty dealing with women as149
colleagues? Do you have any feeling about that? Of course, it changed
over time dramatically, I guess.
Justice Ginsburg: I remember the card I was given for the Frontiero argument. It said :
“Mrs. Ginsburg.” Some of the students who came to the argument with
me inquired : “Aren’t you going to object to that? Don’t you call yourself
Ms.?” I answered: “I’m not going to do one thing that might distract the
Court from what I’m saying. If they want to list me as Mrs., just like the
New York Times, so be it.” Change would come, even for the Times, but
it was best left for another day.
Comments were sometimes made that would not have been made
at that time in a racial context. For example, at the very end of my
argument in Duren v. Missouri, in 1979, then Justice Rehnquist said: “So
you won’t settle for Susan B. Anthony’s face on the new dollar?” (A
silver dollar then recently coined bore the great suffragist’s image.)
Things like that would not be said today.
Time was on the side of change. Several men on this Court had
daughters. They were experiencing in their own lives the change in
attitudes about what women should be doing.
Dr. Marcus: When you started out at the D.C. Circuit, did you have any training?
Were there any programs for appellate judges?
Justice Ginsburg: The Federal Judicial Center was just starting up its programs. The
Center ran them regularly for district judges but not routinely for court
of appeals judges. There weren’t as many new appeals court appointees.150
I just missed the class that Pat Wald, Ab Mikva, and Harry Edwards had
attended. There wasn’t another class for appellate judges until I was
well into my third year on the D.C. Circuit.
Dr. Marcus: Really?
Justice Ginsburg: And by then I could have joined the faculty. I didn’t need to go to attend
the class. But I did. The Center’s programs for new judges run for a
week; they are in part social and in part learning experiences. They give
the new judge an opportunity to talk to other people doing the same job.
The new judge gains an understanding that the problems he or she is
encountering are seldom peculiar to that judge, that he or she has lots of
company. I think the Federal Judicial Center programs, their judicial
education programs, are very good, but for me the class came too late to
aid me as a starting-out judge.
Dr. Marcus: What did they teach you?
Justice Ginsburg: They brought you up to date with developments in various areas of
substantive law. They dealt with procedure, and with ethical questions.
Just this year I attended dinners at the Court for two district judge
classes. The Center arranges a dinner at the Supreme Court at the end of
the class week. The sessions may be more important for district judges
because, unlike court of appeals judges, when I spoke to the new judges
they sit alone, some of them in remote parts. I sensed that the Center’s
class made them feel themselves part of a judicial corps of people who
take their jobs very seriously and are devoted to serving the public and151
the country.
Dr. Marcus: Can you remember any of your experiences in that first year? You’ve
told me you had no training, so you entered cold, so to speak. And
obviously you had some experience as an advocate, but was it very
different and difficult being a judge?
Justice Ginsburg: I recall the first large environmental control case on which I sat. It had
something to do with lime scrubbers and dirty coal. It was familiar fare
for the D.C. Circuit – a rulemaking by an agency, the agency in the
middle challenged on one side by the industrialists for making the rules
too strict, and by the environmentalists on the other side for making them
too lenient. There were umpteen challenges. I found the case
intimidating. The other panelists were Roger Robb and Pat Wald. Pat
wrote a book-size opinion in that case. It took me an enormous amount
of time just to understand what was going on. Of course, they’re all
not like that. The docket included many single-issue criminal cases one
could read and decide without great mental strain.
I remember too my first en banc. Skelly Wright assigned to me
responsibility for the full court ‘s majority opinion. My decision was
reversed by this Court, but Justice Stewart, who wrote the opinion for
the Supreme Court, accepted a significant part of my reasoning. I wrote
for the court in another memorable case on standing to sue for race
discrimination, Wright v. Regan. Again, my decision was reversed by the
Supreme Court, a fate not entirely unanticipated.152
Dr. Marcus: I hope that we’ll talk about that in greater depth as we go on. I was just
sort of curious as to whether there were any strange experiences, being a
new judge, when you come into court, if you do the wrong thing.
Justice Ginsburg: As I mentioned earlier, being an appellate judge is very much like being a
law teacher, so I didn’t have the great wrench that people like Ab Mikva,
for example, had. He had been a legislator, a member of Congress for
many years. He was accustomed to a daily routine of going to this
meeting at this time, that meeting at that time, a lunch appointment in
between, time off for the gym, constantly moving and doing. I had a
sedentary job as a law teacher. There wasn’t any large change in the
routine of my life, not the kind of change there would be for someone
who’d been in private practice, or in Congress, for example.
Dr. Marcus: Did you form a close personal relationship with any of your colleagues
on the court of appeals?
Justice Ginsburg: I have a close personal relationship with Judge Edwards. My
relationship with Judge Bazelon was different – he was more of a father
figure. I traveled with Skelly Wright to England for a conference at a
manor house outside London. We got to know each other better on that
trip. I retain to this day a friendship with Malcolm Wilkey. In part, that
friendship stemmed from proximity. When my chambers were on the
third floor of the D.C. Circuit courthouse, Judge Wilkey’s chambers
were next to mine. And I liked his wife Emma very much. I visited
them when Malcolm was our ambassador to Uruguay. Every time he153
comes to D.C., he at least calls me, and more often than not we see each
other. Malcolm and I were on opposite sides of “political questions,”
but we liked each other.
Who else was on the D.C. Circuit? There wasn’t a colleague I
didn’t like. Nino Scalia is an especially treasured friend. He can make
even the most sober judge laugh. I enjoyed most of my colleagues, and
there wasn’t one I positively didn’t like.
Dr. Marcus: There was no McReynolds [phonetic] on your courts? [Laughter]
Justice Ginsburg: No. Far from it.
Dr. Marcus: Did you have much interaction outside the courtroom in the D.C.
Circuit?
Justice Ginsburg: Not as much as we do here.
Dr. Marcus: Really?
Justice Ginsburg: This is a much more social, much more collegial court than the D.C.
Circuit. For one thing, the judges in the D.C. Circuit didn’t eat lunch
together. Here every day that we sit, every day that we confer, we have
lunch together. For another thing, there weren’t that many functions at
which D.C. Circuit judges were expected to put in an appearance. Here,
well, we all go en masse to the State of the Union. We go in twos and
threes to other events. Justice Breyer and I went together to the
Mandela joint session. (I went alone to the one for Rabin and Hussein.)
Justice O’Connor and I have gone to innumerable Women’s Bar
Association and other events together. We have musicales at the Court,154
birthday parties, even wedding receptions. Justice Scalia and I have
been supers together at the Washington Opera. Justice O’Connor and
the Chief have been bit part players with me at the Shakespeare Theater.
So there’s much more collegiality here than there was on the D.C.
Circuit. Part of the scene was the absence of a place where the court of
appeals judges had lunch together. There was a lunchroom, a judges’
dining room in the building, but it was mainly used by the district judges.
There might be a sudden silence when a court of appeals judge joined
the district judges’ table. They might have been discussing the dull,
insensitive, intemperate, wrong-headed decision handed down by Panel
XYZ that day. So there is a lot more collegiality here than there.
Dr. Marcus: I was also wondering whether you had much to do with the district
judges, because you were all in the same courthouse there.
Justice Ginsburg: Yes, but largely on an individual basis. I so liked Joyce Green. We
became good friends, not because she was a district judge and I was on
the court of appeals. We were just in close proximity and liked each
other. I didn’t have a similarly close relationship with any other district
judge. One facet of the work, in this Court we sit together, all nine of
us, all the time. At the D.C. Circuit there was a constantly changing
panel.
Dr. Marcus: As a court of appeals are there any occasions that as an institution you
meet with the district court bench?
Justice Ginsburg: There’s a Judicial Council. In the early days the Council included all of155
the judges of the court of appeals and only those judges. Later, some
district court judges were included. Now it’s more balanced. The
Council has some court of appeals judges and some district judges.
Council meetings were held perhaps twice a year, that’s all, as
distinguished from our conferences here, which take place most Fridays
during the sitting season. In a sitting week we generally meet on
Wednesday as well as Friday.
Dr. Marcus: And do you think the court of appeals having to sit in judgment on
district court judgment made it difficult to have a personal relationship
with those judges?
Justice Ginsburg: No. I don’t think so. It didn’t affect my relationship with Joyce Green.
And I never felt, if a decision of mine were reversed by this Court, as
not uncommonly happened, that the reversal reflected adversely on
me. The cases this Court hears are inevitably cases where there’s a
division of opinion. There’s rarely only one clearly right answer.
Dr. Marcus: By my count on that list, you served with twenty-two other judges,
which is quite a bit more than you’re doing at the moment here, and I
wondered if there’s anything you’d like to say about any of them. I
don’t want to know their legal opinions in a particular case, but maybe
something about their style of judging or you remember some
particular anecdotes about any of them that you’d like to tell us about.
Justice Ginsburg: I mentioned Carl McGowan above all others. If you read his
opinions, you will understand why. He was a beautiful thinker, and156
there was never any question about how he reached the decision he
did. You could agree with him or disagree with him, but he was
totally clear and honest about his reasoning process. So I had
extraordinary respect, admiration, and fondness for him.
I enjoyed Nino Scalia when he was on the D. C. Circuit. I
enjoy him now because he is such good company. No matter how
harsh his opinion criticizing your opinion may be, you can’t be mad at
him very long, because he’s so charming, winning, and amusing.
Dr. Marcus: And he was the same way on the c ourt of appeals?
Justice Ginsburg: He’s always that way.
Dr. Marcus: Really?
Justice Ginsburg: I first met him when he was a law professor.
I might also speak of Judge Bork, who has an extraordinarily
bright mind . He was my next-door neighbor at the D.C. Circuit
courthouse for a while. I liked Bob very much, and I cared very much
about his daughter Ellen. I try to stay in touch with her to this day. She
and I had an experience in common. Her mother died when she was
about the age I was when my mother died. What happened to Bob was
tragic, it will deeply affect and wound him as long as he lives. There’s
something I don’t mind saying for the record. I think more than anyone
else, President Reagan is responsible for what happened to Bob Bork.
When there was a Republican majority in the Senate, President Reagan
nominated not Bob Bork, but Nino Scalia. Bob Bork was older, he’d157
been on the D.C. Circuit longer. If he had thought about how these two
candidates would fare before the Senate, he would have appreciated that
it would be very hard for anyone not to love Nino. He’s just that
charming. But Bob’s personality is different. So the big chance for Bob
Bork was when there was a Republican majority in the Senate. He
wasn’t nominated then. When he was nominated, he faced a Democratic
majority.
Dr. Marcus: Well, I think this is a good time to stop. It’s quite late, almost 7:30 in
the evening. And so we can take this up again, and you think about
anecdotes about your colleagues, any that you might want to.
Justice Ginsburg: That’s next year, right?
END OF SESSION FOUR