Ruth Bader Ginsburg Interview 7

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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 September 6, 2000. This is the seventh interview.
Dr. Marcus: Before we proceed to the D.C. Circuit and its cases that I know you want
to comment on for this interview, I went over all the other ones and I just
had a few odd questions that are not on the D.C. Circuit, but they’re
personal. I realized I don’t think I had said anything about it, and it was
just a curiosity. Like who are your favorite authors and composers?
Justice Ginsburg: My favorite authors, Tolstoy and Jane Austen. Favorite composer,
Mozart.
Dr. Marcus: Really. I can never make up my mind. [Laughter] I’m amazed you could
say something like that. They’re good choices. But it is always hard. So
Mozart is your favorite.
Justice Ginsburg: Yes.
Dr. Marcus: And is that because of opera or –
Justice Ginsburg: Everything. He’s all-around everything wonderful. One of the world’s
greatest geniuses.
Dr. Marcus: Then I was curious as to – I know what you do, I guess, to relax. I know
you are a great music lover, but is there anything else? Do you exercise?
Justice Ginsburg: Yes, I just started with a personal trainer here at the Court twice a week.
This is to get me back to where I was a year ago, because in the process of
the colorectal cancer and recovering from that, I lost a lot of strength. So I
feel that my upper body particularly is very weak. It certainly isn’t a255
question of weight, I don’t need to lose any weight, but I do need to get
some muscle back, so that’s what I’m doing. The trainer comes from the
D.C. district court. He’s an employee in the clerk’s office there. Gladys
Kessler has been using him.
Dr. Marcus: I was going to say, how did you find him?
Justice Ginsburg: Gladys recommended him to me.
Dr. Marcus: That’s good. And you like him?
Justice Ginsburg: I like him very much, and we’re using the downstairs ground floor gym.
For the first time in my life I’m using those torture machines. I did
aerobics before, but I didn’t do weight-bearing exercises.
Dr. Marcus: They say that’s what you’re supposed to do when you get to be our age.
[Laughter]
Justice Ginsburg: One of the problems was that in the course of the year of chemotherapy,
my bone density went down even more. I don’t know how long I’ll
continue this, but at least long enough to get back, I hope, the bone density
and some muscle so that I can open a soda bottle, because I’m so weak
now.
Dr. Marcus: It is hard, but I think it’s one of these things where you basically go on
forever doing it if you want to maintain it.
Justice Ginsburg: Well, I like it.
Dr. Marcus: It’s good for you, yes, and it is relaxing. It takes your mind away from
everything else. So that’s good. Okay. Those were just a few little silly
questions I thought of as I went over this. You had asked me about the256
story about Judge Skelly Wright.
Justice Ginsburg: We have it in there.
Dr. Marcus: We have it, yes. I found it. So that’s good. So we can turn, if you like, to
the cases.
Justice Ginsburg: Yes.
Dr. Marcus: We spent a long time on just a couple of cases last time, and so now you
want to go through some of the others, which you chose. You did, what,
well over 400?
Justice Ginsburg: Yes. Linda has the number.
Dr. Marcus: I have the whole list, too. It’s huge.
Justice Ginsburg: Yes.
Dr. Marcus: So you’ve chosen these for a variety of reasons, I assume, as I looked at
them.
Justice Ginsburg: Yes. I chose them mainly to illustrate two things. One is the range of
cases, the enormous range of cases that the D.C. Circuit heard, and the
other is to show the way judges operate, the way judges make law in small
spaces, not grand policy, but incrementally, interstitially, and these cases
are good examples of that.
Dr. Marcus: So do you want to begin with the first one I had on my list, I don’t know if
you had it, was Wilson v. Johns-Manville.
Justice Ginsburg: Yes, I have them all here. [Phone rings.] That was a case about – can we
shut this off for a moment?
Dr. Marcus: Sure. [Tape recorder turned off.]257
Justice Ginsburg: It was a case about a worker who had been exposed to asbestos. He got
asbestosis and didn’t sue then because workers’ compensation was
adequate to take care of that. Then he contracted some years later a
virulent form of cancer, and within months was dead. His widow sued,
and Johns-Manville said, “It’s too late. The D.C. Code sets the time limit
at three years from the date of injury, and the injury occurred when the
asbestosis first took effect.” We confronted a statute that said three years
to sue, but didn’t tell you when the clock started.
The court had to decide when the clock started, and the traditional
rule was when the first manifestation of your injury shows. But that didn’t
fit diseases produced by asbestos. So we were filling a gap in the statute.
We were saying when the clock begins to run. For substances that can
cause a virulent cancer but not until many years after, the clock doesn’t
start to run, we held, till you contract the dread disease. We don’t want
people rushing to court when they have asbestosis, when workers’
compensation is enough, and most of them will never be afflicted with
anything worse. So for many reasons it made good sense to have the
statute of limitation run from the date that the cancer manifested itself and
not from the earlier date.
That was a case we decided by filling in a gap in the D.C. statute
of limitation. The decision was later followed by the court of appeals in
Maryland, with respect to that state’s statute of limitations. We
distinguished the ordinary case, for example, if you have a car accident,258
you have three years from the accident to sue. But this kind of malady
was different. So the trigger started when the serious disease became
manifest.
The case is a good example of a court not responding in a knee-
jerk way by saying, “Well, he was injured when he got asbestosis. Once
three years pass, he’s out of court.” Instead, we said: “This is a different
category of case and the general rule doesn’t cover it.” We announced a
special rule to govern this category of case.
Dr. Marcus: Would it have made any difference if he had sued when he first had
asbestosis? Is that what it’s called?
Justice Ginsburg: Yes.
Dr. Marcus: If workers’ comp didn’t cover and he had sued and gotten damages for that
and the same thing happened to him, then he gets really very ill however
many years later it was, would he be able to recover it then?
Justice Ginsburg: That’s a good question, and it’s a question we left open, because the
ordinary rule is when you come to court complaining of an injury, you
must state all of your damages then and there, and project your losses into
the future. One common element of a claim for personal injury is your
future loss of earnings. You’re not allowed to say, “I project a ten-year
loss of earnings,” and then come back to court at the end of that ten years
and say, “I still can’t earn any money, so I want another ten years.”
Ordinarily you have to state all of your damages in one fell swoop.
Whether there would be an exception for this category of case we left259
open. It would be a much harder decision to call for the plaintiff, I think,
than the one that we made.
Dr. Marcus: I remember when asbestos became a problem. I don’t remember the exact
year. But at the time, when lots of workers may have gotten asbestosis,
did they know that it actually caused cancer somewhere down the line?
Was that a known fact?
Justice Ginsburg: It was certainly alleged by the personal injury bar that asbestos caused –
not in every worker and not even in most workers, but that it did cause this
form of –
Dr. Marcus: So they knew.
Justice Ginsburg: Yes.
Dr. Marcus: Before sitting on a case like this, had you ever talked towards or thought
about damages and problems of this sort before?
Justice Ginsburg: No. In the litigation I was doing, equal rights litigation, this kind of
question didn’t arise.
Dr. Marcus: So you have to really be a quick study when you’re on a court of appeals,
with all the –
Justice Ginsburg: Yes, but I picked this case out because it is an example of law-making by
judges in one sense, but no one, not even the most conservative person,
would challenge that the courts must fill that role.
Dr. Marcus: And I think Judge Bork was on your panel.
Justice Ginsburg: Yes.
Dr. Marcus: And Judge Palmieri.260
Justice Ginsburg: Yes, for whom I clerked. I think we talked about that.
Dr. Marcus: Yes.
Justice Ginsburg: He sat with the D.C. Circuit a few times, Judge Palmieri did.
Dr. Marcus: Okay. So the next case that you had written down was Lombard.
Justice Ginsburg: Yes. That was a very interesting case. I was on the dissent side in that
one. The case involved a serviceman who had been stationed in Los
Alamos from 1944 until 1946 and had been exposed to radiation. In the
fullness of time, he married and had four children, and each child was
born with a genetic defect, running from moderate to grave. There was a
rule – there still is a rule – that a member of the service cannot sue the
government for a service-connected injury. That is an exception to the
Federal Tort Claims Act which allows citizens who are injured by
government workers, for example, by the operation of government
vehicles, to sue.
But the courts created this doctrine known as the Feres Doctrine,
F-E-R-E-S, to take care of the situation of people in the military who
should follow the orders they’re given and not sue the United States after
the fact. So that was a given, that a service member could not sue for a
service-connected injury. But the theory of this case was different. It was
that the suit was not on the service member’s behalf, at least in part it was
not. The part we were concerned with was the part on behalf of his wife
and four children.
The theory of the case was something happened after Lombard left261
service in the U.S. military. That something was that over the years the
U.S. Government learned more and more about the health dangers of
radiation, and as the government accumulated information about what
radiation could do, it had an obligation to warn the people that it had
exposed to radiation, to warn them so that they could take that into
account in their family planning. If this man and his wife knew about the
risk of genetic defects, they may well have decided to adopt children.
Anyway, that was the theory, that it wasn’t something the
government did while Lombard was in service. It was not a command he
was given as a soldier. It was something the United States failed to do
later when he was a civilian. I thought that a distinction could be drawn
between service-connected injuries and something the U.S. did wrong
after the period of service. So I dissented on that ground, but the majority
was unwilling to make any fine distinctions at all. In their view, if you
were a member of the service, you simply couldn’t sue the government,
you or members of your family, for any position that the government put
you in while you were in service.
But the Feres Doctrine itself was court-made law. That is,
Congress passed the Federal Tort Claims Act that said the U.S. is liable to
individuals when the U.S. carelessly injures them. In Feres the court read
the statute to exclude service members. So this was a case in which I was
attempting to round out, to elaborate a court-created doctrine. I wasn’t
dealing with the legislation itself because the legislation didn’t contain any262
exception for servicemembers. So that was the idea. The ways judges
traditionally made the common law was, they’d have one case and they
would declare a certain rule, and then they would reshape the rule,
sometimes expanding it slightly, sometimes contracting it slightly. That’s
what I thought Lombard should have done instead of saying, “We have
this doctrine, it’s a blanket doctrine, and we’re not going to recognize any
exception to it.”
Dr. Marcus: Is that good law today?
Justice Ginsburg: Yes.
Dr. Marcus: It hasn’t changed.
Justice Ginsburg: One notion that I don’t share but that some judges do is, Congress knows
about this doctrine, we’ve had it so long, it’s just as though it had been
written into the legislation, so the change should come from the
legislature, no longer from the courts. My view is, well, the courts made it
up in the first place, so they should be the ones to take responsibility for
reshaping it when it becomes apparent that there are some cases that just
don’t belong under the umbrella. So that’s what Lombard was.
Dr. Marcus: And the next one was United States v. Kelly.
Justice Ginsburg: Yes, that was one of the Abscam cases.
Dr. Marcus: Yes.
Justice Ginsburg: In that one I concurred. The district judge had set aside the jury’s verdict.
The jury’s verdict was that Congressman Kelly was guilty. The D. C.
Circuit upheld the jury’s verdict, upheld the conviction. We all agreed that263
the doctrine of entrapment didn’t fit Congressman Kelly’s case, because he
had a predisposition to take bribes. Anyway, the jury could so find. So
the strict entrapment defense didn’t fit, but – who was the district judge?
A very good judge. Bill Bryant.
Dr. Marcus: Bill Bryant. Yes.
Justice Ginsburg: He said, even though Kelly’s case didn’t meet the technical requirements
of entrapment, what the government did here is something no respectable
government should be doing. What they did in this particular Abscam
scam —- there were several scams -— but in this one an FBI agent
purported to be a representative of two very wealthy Arabs. Those Arabs
wanted Congressman Kelly – at least this is the story the FBI agent told –
they wanted to pay Congressman Kelly $25,000, so that if conditions ever
became difficult for them in Saudi Arabia, the congressman would
sponsor a private bill to allow them to come to the United States as
immigrants.
Congressman Kelly had introduced such bills on behalf of people
in his district who had relatives seeking entry into the United States. One
colloquy between a witness and counsel is revealing, for it homed in on
what the government was doing. This witness was a go-between for
Congressman Kelly. When he was told what the deal was – Kelly was to
introduce a private bill so that these wealthy Arabs could come to the
United States if necessary – he said, “But he does that kind of thing all the
time. That’s not unusual. You mean you’re going to give him something264
for doing nothing. Doing nothing.” And he repeated those words three
times. And they said, “Yes.”
The idea of the separate concurrence – I can’t say this is the current
law because there’s not a clue of it in Supreme Court opinions – but what
the government had done in this case was to give a susceptible person a
deal he would never confront on the street. It’s okay if the government sets
up a fence, because people seeking to dispose of stolen property will look
for a fence, but no one in the real world would give Congressmen Kelly
$25,000 for doing nothing. My point was that it’s fair for the government
to simulate anything Kelly might encounter in the real world, but to offer
him a deal that he wouldn’t meet on the street was unfair. That was not
within the bounds of the way government should operate. Some of these
government operations, they start out with a solid objective, and then they
tend to take on a life of their own.
There’s another case on my list. There’s the Iennaco case, with a
similar pattern. It was the pizza connection case. It started out with the
government investigating some really bad stuff. Then, as they went on
and on, they began to get involved with things that should not have been
ballooned into federal cases.
So my view of Abscam is, even though I wouldn’t say the
Constitution prohibited government from doing this, a good prosecutor
would not allow government operatives to trick people by tempting them
in a way that they wouldn’t be tempted in their everyday encounters.265
Dr. Marcus: That sounds fair.
Justice Ginsburg: So that was it. And people who commented on the two opinions – George
MacKinnon wrote the opinion for the court, I wrote the concurring
opinion. People who commented said that MacKinnon got to the result
that the jury verdict against Kelly should be upheld, cheering all the way,
and I got there weeping. That, I think, expresses the difference in the two
opinions.
Dr. Marcus: The next case that you have on the list is one that we talked about a little
before, Walker v. Jones.
Justice Ginsburg: Yes. That one I think we talked about more than a little. The plaintiff was
the manager of the House cafeteria.
Dr. Marcus: Right. The female manager.
Justice Ginsburg: Yes. The rubric was constitutional, the Speech and Debate Clause,
indicating that members of Congress shouldn’t be questioned about their
speeches and debates on the floor. Translated, that to me meant anything
connected with legislation, but parking cars, operating a gym, running a
cafeteria seemed to me sufficiently discrete that there wouldn’t be a
problem of spillover. You could easily distinguish the manager of the
cafeteria from the legislative assistant. But I think we spoke at some
considerable length about Walker v. Jones.
Dr. Marcus: We did. How about Laffey, I think it’s called, v. Northwest Airlines?
Justice Ginsburg: I have a copy of Laffey here because I wanted to show you something very
interesting about that case. I’ll tell you why I put it on the list, not because266
it was the longest running equal pay Title VII case in the D.C. federal
courts. It was that. It was started in 1970 and here we were in 1984,
fourteen years later. The case, I think, had been Aubrey Robinson’s in the
district court, and Northwest Airlines was losing very heavily.
This was a stewardess-purser case, and it went back to the days
when pursers, all male, were paid more than stewardesses. When they had
overnight stops, the stewardesses would double up. The men got their
own rooms. The women did not get a cleaning allowance for their
uniforms; the men did. The women had a height and weight – a weight,
not a height – a weight check, and the men didn’t. All that, that whole run
of differentials.
When it came up to the court for what was going to be the end of
the road, the last appeal, Northwest had a bunch of new, I would call them
highly creative arguments. They had a very good lawyer – it was Phil
Lacovara – arguing for Northwest Airlines.
It was an argument at which I presided, Judge Bork was on my left
and Judge Starr, on my right. At the oral argument, Phil Lacovara was
playing to the sides. He didn’t want to engage in any colloquy with me.
He thought I was a lost cause. He sought to convince the other two judges
that Northwest Airlines ought not be liable to pay money, big money, to
the stewardesses who for all these years were getting less pay than the
pursers.
The opinion – and it’s a fairly long opinion – is labeled “per267
curiam.” The per curiam opinion resoundingly affirms Judge Robinson’s
decision and was a great victory for the plaintiffs and a very heavy loss for
Northwest Airlines. We all agreed that the message should come from the
court as a unanimous whole.
I don’t betray a great confidence when I say that I wrote most of
this opinion. I gave discrete pieces of it to Judge Bork and Judge Starr. I
was the assigning judge. I wrote the bulk of the opinion answering those
novel creative arguments that Northwest presented at the eleventh hour.
But I wanted the opinion – and I think my colleagues shared that view – to
get across the message that we are judges applying the law, and that it
doesn’t do for a lawyer, even such a good one as –
Dr. Marcus: As Phil.
Justice Ginsburg: – to say, “Well, I know how she thinks, so I’m going to forget her and
concentrate on persuading the others.” There were laws to be applied, and
however we might feel about those laws had we been legislators, we were
there, all of us, to faithfully apply them. I think Laffey is a very good
illustration that when the law is clear and you have a strong case on the
facts, it doesn’t matter whether it’s Judge Bork or Judge Ginsburg or Judge
Starr, we all agree.
Dr. Marcus: I wonder if you would say a little more about the use of per curiam,
because, of course, this Court, the Supreme Court, does that sometimes,
and I learned something I didn’t know a little while ago, that there are
often dissents from per curiams that are just not recorded.268
Justice Ginsburg: Yes.
Dr. Marcus: Which would make it a little bit different from such a strong endorsement,
a “by the court,” endorsement of this particular rule. So how does a reader
differentiate the meaning of such a thing?
Justice Ginsburg: There is no single meaning for a per curiam. A per curiam opinion can be
used for different purposes. One use is for a very short opinion that isn’t
making any significant law. That’s the most common use. But every once
in a while the Court uses the per curiam label to call attention to the
unanimity of the bench on a very important issue. That was true in
Cooper v. Aaron, the case that said to the Southern states that were
recalcitrant, “Brown v. Board of Education is the law, and there isn’t a
justice on this Court who has the slightest doubt about it. That is the law
and the states are obliged to follow it.” So Cooper v. Aaron came out per
curiam to emphasize the solidity of the Court behind the Brown v. Board
decision.
In this case, as I said, we used it – when you look at the length of
this opinion, you understand that obviously it’s not the kind that is saying
very little and therefore not even worth identifying an author because not
much author’s time went into it. We might have a per curiam on this
Court that a justice could write out or dictate in an hour, and wouldn’t seek
or be given opinion-writing credit for such an exercise. Every once in a
while, however, a per curiam is used to give weight to the opinion, to
emphasize that the opinion speaks for the Court.269
Dr. Marcus: And when that happens, when it’s used to give weight, is it usually one
person’s effort with contributions by others, or is it sometimes divided up?
Justice Ginsburg: It’s often divided, as it was in this case, but sometimes, as in Cooper v.
Aaron, sometimes it’s not. There could be a per curiam decision in the
D.C. Circuit in one of those blockbuster agency cases that had thirty
issues. The panel would divide them up, say ten for one judge, ten for
another, and ten for a third. Sometimes those opinions will footnote who
wrote what part. The per curiam in Laffey does not do that. The opinion
was styled per curiam to underscore that we are equally responsible for all
of it.
Dr. Marcus: That certainly is an interesting case because it was an interesting panel.
Justice Ginsburg: It’s a wonderful case to show the change in the time from the 1960s, when
it was standard operating procedure to pay the woman less for doing the
same job. The employer might give the woman’s job a slightly different
title, arrange some superficial differences that really don’t amount to
anything, differences that an efficiency expert would say warrant a pay
differential.
Dr. Marcus: Yes, and all of the other regulations that were only applicable to women.
You need only hop on an airplane today and those are out the window.
[Laughter]
Justice Ginsburg: Yes.
Dr. Marcus: Looks like a very different world.
Justice Ginsburg: Yes.270
Dr. Marcus: Should we go on to the next one?
Justice Ginsburg: Yes.
Dr. Marcus: Abourezk v. Reagan.
Justice Ginsburg: Yes. That was a case I wrote for the court, one that provoked a strong
dissent. The case concerned the receptivity of U.S. society to other views,
and the flip side of the First Amendment right to speak, the right to listen.
Plaintiffs were diverse groups. One was a university group, another was
the City of New York, a third, I think, involved religious leaders, who had
invited people from abroad either to lecture to the U.S. group or to
participate in a conference. One of the invitees was a former General and
current peace advocate from Italy, another was the Minister of Justice of
Nicaragua. In the New York City case, two women from Cuba had been
invited to participate in a family planning conference.
These people were denied visas. One important threshold question
was, who could complain about that. The government argued that the
invitees were foreigners who had no rights under the U.S. Constitution.
But the plaintiffs in the case were the people who invited them. It was an
important case on the question, who could challenge government action.
The technical side of it concerned access to court, who could complain
about the visa denials. The more substantive side was this: The United
States prides itself in welcoming all people, entertaining all views, in
having a democracy that’s so strong we don’t have to be afraid of people
who hold different views about the way society should be organized.271
On the substantive side, the court’s majority, I think, was truer to
the U.S. tradition than was the dissent. And on the procedural side, who
can sue, the plaintiffs were listeners who wanted to hear what an invitee
from abroad had to say. The plaintiffs were from within the United States,
so we didn’t have to consider the question whether a foreigner would have
any rights enforceable in a U. S. court. The listeners in the U.S., we held,
had standing to sue. So in Abourezk, as in another case on the list, one in
which I dissented – Dellums – the first question was, can this matter even
be brought to court. The government argued that the speakers themselves
had no rights under the U.S. Constitution, and if the First Amendment
doesn’t protect the rights of speakers, there would be no standing for the
would-be audience to complain. We ruled, however, that the would-be
audience, the people who invited these guests from abroad were
appropriate challengers.
So I think Abourezk illustrates a certain way of thinking about who
should have access to courts, one very restrictive and that’s reflected in
Judge Bork’s dissenting opinion, and the other more open, but still
recognizing that courts are not debating societies. You must have a real
stake in a case. You just can’t say, “I think this is an interesting question,
court, decide it.” But the would-be audiences, the people who had
extended invitations to speakers from abroad, surely had an interest in
having the speaker join them, and that’s what the opinion held.
Dr. Marcus: And now we go on to Baker v. Commissioner.272
Justice Ginsburg: Yes. Baker v. Commissioner is an example of bureaucratic arrogance, and
that’s something the D.C. Circuit got to see more than other circuits
because we had so many cases involving government officials. It was a
small case in the sense that there was no great principle of substantive law
involved. Baker was a man who had worked for an oil company in Saudi
Arabia. He didn’t report as income certain housing benefits that he had
received from the company. He didn’t based on the experience of his
buddies, who were in the identical situation. Their treatment of this
housing allowance as non-income had been approved by the IRS. When
he was denied similarly favorable tax treatment, he asked, “Why? I’m just
like the other two.”
The only difference was that his case was in one IRS office, and
the others were processed in a different office. He tried to focus the
attention of the government on that. Its people in the field were applying
different rules to people who are identically situated, employees of the
very same company, people who lived in the very same housing. The
government was so recalcitrant, it fought Baker’s case in the district court
and up to the court of appeals. A provision of the Code says when the
government is acting in a totally arbitrary way, the government can be
required to pay the costs and the attorneys’ fees of the person who
prevailed. And that’s what we held in Baker. It wasn’t much of a slap on
the wrist, but at least the opinion affirmed that a court was there to back up
a citizen who says, “I am being abused by a bureaucrat.” And that’s what273
Baker was about.
Baker continued to be mistreated until he engaged a lawyer. The
amount in controversy wasn’t large enough to warrant him paying the
lawyer any money. Recognizing that an injustice had been done, the
lawyer took the case and hoped that if he prevailed, the provision
requiring the government to pay his counsel fees would kick in, and we
held that it did.
Dr. Marcus: Do you remember who the lawyer was?
Justice Ginsburg: I don’t remember.
Dr. Marcus: Well, that’s a nice kind of case to point out to people. I think they
appreciate having judges who –
Justice Ginsburg: Well, we’ve all had encounters with the bureaucracy, but this was really –
at some point you have to say this is too much. The official’s conduct
shows such arrogance, such disrespect, such disregard for the U.S. citizen
taxpayer, that we are impelled to make an example of it and say if a
bureaucrat is going to be so uncaring, so abusive, that there will be a
whistle blown, and that’s what Baker represents.
Dr. Marcus: The next one that I have is McKelvey v. Turnage.
Justice Ginsburg: Yes. Again, I dissented in that case.
Dr. Marcus: With Justice Scalia – both Judge Scalia and Judge Starr in the majority.
Justice Ginsburg: It was a question of interpreting words, which lawyers do all the time. It
was a question of GI Bill benefits, educational benefits, for a man who had
been an alcoholic. But over a period of ten years he showed that he in fact274
regained control. He kicked the habit and he wanted to go back to school
and use the GI benefits. Ordinarily, someone disabled from claiming
benefits can pick them up when the disability ends. The rule is – I don’t
remember how many years it was, but after X number of years, your
benefits lapse. They don’t lapse if you’re disabled, if you then seek them
promptly after your disability ends.
So I don’t remember what the magic word was. “Handicapped”
was it. That was the question. Was McKelvey’s condition, was his
alcoholism a, quote, “handicap,” in which case he would qualify for these
educational benefits? Or was it, quote, “willful misconduct,” that is,
unlike having a wound that you didn’t ask for, alcoholism is something
that you did to yourself. So did the label “willful misconduct” fit, or was
it a handicap? In McKelvey’s case, there was a history of drinking in his
family. The proper label for someone who is an alcoholic and then kicks
the habit is, he had a handicap and he’s overcome it. On the other hand,
my colleagues said it was willful misconduct, and if you engage in willful
misconduct, it doesn’t matter that you’ve ended the bad conduct, you are
forever disqualified from benefits.
Congress left this gap. The legislature didn’t answer the question.
It had the two labels, “handicap” on one hand, “willful misconduct” on the
other. Where would the legislature have placed this case? My view was
that the legislature would have said, provided that the proof is clear that
this person is now cured of alcoholism, Congress would want such a275
person to get the GI benefits and not say, “No, because you were once an
alcoholic, you’re permanently deprived of any benefits you would get by
reason of your service to the United States.” So, again, it’s words that
have to be interpreted, a real-life situation fitted into those categories,
handicap and willful misconduct.
Dr. Marcus: Also, the time that it was decided, I mean, now I think many people
believe frequently that alcoholism – and you said it was in his family –
that it is genetic.
Justice Ginsburg: Yes.
Dr. Marcus: It’s very difficult to overcome something like that.
Justice Ginsburg: Yes.
Dr. Marcus: I don’t know if they believed it back then. It was in the eighties.
Justice Ginsburg: There was some –
Dr. Marcus: There was some evidence?
Justice Ginsburg: Yes, there was, that this man was born with that tendency, with a
susceptibility that most people do not have.
Dr. Marcus: Yes. Now, the next case on the list was Tavoulareas, which we said a few
words about, but maybe not in the way you want to remember it for the
purposes of this list.
Justice Ginsburg: The reason I wrote separately in Tavoulareas, it’s a very, very long
opinion.
Dr. Marcus: Wow.
Justice Ginsburg: One of the things that went wrong in Tavoulareas is that the jury —- they276
sat for weeks and weeks —- didn’t have a clue what the law was that they
were to apply until the end when the judge doused them with law that
would boggle the mind of a third-year law student, all in one dose.
I wrote a short concurring opinion in which I suggest techniques a
trial judge could and should use in a case that’s either protracted —- runs
on for many weeks or is unusually complicated. One technique is not to
wait until the end to give the jury the charge. Instead, as the evidence
unfolds, charge them in segments so they understand the reason for
introducing particular evidence, charge in small bits, and also send the
entire charge, all of it, into the jury room so the jurors can look back on it.
Another technique is to give the jury separate questions. I used as
an example the Sharon libel trial in New York that then Judge Sofaer
presided over. He gave the jury three discrete questions to answer: Was
the article defamatory? Was it malicious? And did it cause harm to the
plaintiff? I don’t recall his exact questions, but in any event, he gave the
jury guides to the issues. First, was the publication false? Was it
defamatory in the sense that it was injurious to someone’s reputation?
Was it false? And then did the defendant act with actual malice?
Focusing the mind of the jurors on particular questions, not simply on the
bottom line, is another way of keeping the verdict in accord with the law.
So my only purpose in writing separately was to say that in these
protracted cases, the jury ought not be given a charge only at the very end
of the case and told to come in with a verdict for the plaintiff or for the277
defendant. They should be given better guidance to the way the law and
the facts relate in the case. The opinion simply lists techniques a judge
who wants to be sure that the jury understands the case and the applicable
law might adopt.
Dr. Marcus: Do you know how many district judges have looked at this and taken –
Justice Ginsburg: I think quite a few. One aspect of Tavoulareas’ case, it was presided over
by a good district judge, Judge Oliver Gasch. These were pre-word
processing days, and the judge was up a good part of the night revising his
charge. He wanted to have it down as well as he could do it. But the
charge was cut and pasted together. A part his secretary had typed was
followed by a part he had handwritten. So when the jury asked for the
charge, he was embarrassed to give it to them in the shape that it was in,
so he said no. [Laughter]
Dr. Marcus: Ah. That’s too bad. [Laughter]
Justice Ginsburg: That’s one problem that technology has solved.
Dr. Marcus: I know I sat on a jury in Montgomery County which I thought was a very
simple question between a felony and a misdemeanor, was the accused
guilty of one or the other, and it was a very short charge and a very well-
educated jury, and they didn’t understand it. They had to go back in the
courtroom and find out. So with a very complicated case like this, it
sounds like a very good idea for a judge to slowly explain the law as you
go along.
The next case on here is Leahy v. District of Columbia.278
Justice Ginsburg: Yes, I was in the majority. It exemplifies government’s obligation to
accommodate to citizens’ needs when it isn’t hard to do so. Leahy
involved a man who regarded his Social Security number as the mark of
the beast. Terrible things would happen to you if you used the number as
your identifier. Well, on D.C. driver’s licenses, the driver’s license
number is the same as the driver’s Social Security number.
Leahy wanted a different number, and if he had been asking the
District to create a whole new licensing scheme just for the few believers
in the mark of the beast, probably the court would have rejected that
accommodation to his religious belief. But he was able to point to an
alternate system already in existence, that is, the D.C. government licenses
many diplomats who are citizens of other nations and don’t have a U.S.
Social Security number, so there’s a whole other licensing scheme for
them. The court said, “Government, this is a genuine religious belief.
You are not disputing that. You have a means of accommodating this man
that isn’t going to upset anything for you. Just give him one of those other
numbers.”
So the idea of that case is that government ought not turn citizens
who have genuine religious beliefs away by saying, “You don’t fit within –
our rule is thus and so and that’s all.” If it is possible to accommodate to
someone’s religious belief, one should. That’s part of the freedom of
religion gestalt that we have, that government should make
accommodations to one’s religious belief when it doesn’t disturb how the279
government is regulating the larger society.
Dr. Marcus: But that case held that the district court misread Supreme Court precedent.
Justice Ginsburg: Yes. On the extent to which accommodation to religious beliefs –
Dr. Marcus: Should be made.
Justice Ginsburg: – should be required.
Dr. Marcus: The next case is the CCNV v. Reid, the Community for Creative
Nonviolence. I thought that was very interesting.
Justice Ginsburg: Yes, that is one of my favorite cases. It set an important copyright
precedent on the work-for-hire doctrine. At issue was a sculpture
commissioned by one group created by an artist. They were engaged in a
bloody battle about who held the copyright.
The case was interesting to me not simply because it was a first
opportunity to say what the then new Copyright Act meant by the term
“work for hire,” but because of the two contenders in the case. It can be
important commercially whether an artistic creation was work for hire, in
which case the employer would hold the copyright, or whether the author
was an independent contractor and therefore would hold the copyright.
The two players were Mitch Snyder, who headed CCNV, an
organization for the homeless, and Reid, a Baltimore sculptor. Mitch
Snyder had commissioned Reid to do a sculpture that would be CCNV’s
entry for the annual Christmas pageant. The creation was to be a modern-
day crèche, depicting homeless people huddled over a grate. The pedestal
would say “And still no room at the inn.” The sculptor had wanted to280
make it out of marble, but there was no money for marble, so he made it
out of a synthetic material.
[Begin Tape 1, Side 2] [Tape begins in mid-conversation.]
Justice Ginsburg: … and in the course of transportation from Maryland to D.C., Joseph’s toe
fell off. The sculpture had to be sent back to the sculptor, who then
repaired it. Mitch Snyder announced, “We’re going to take this great
creation, which has attracted much attention in D.C., on a tour to raise
money for CCNV.” The sculptor said, “No. The creation is much too
fragile. You wouldn’t let me use sturdier material. So it should stay in
one place. It shouldn’t be moving around the country.” At which point
Mitch Snyder said, on behalf of CCNV, “It’s ours. You were just a
sculptor for hire.” And Reid said, “No, I am the creator. It’s mine.”
These two, both public-minded people, Mitch Snyder, whose life
was devoted to helping the homeless, Reid, who was very charitable in his
willingness to donate his artistic talent, these two were engaged in battle
with each other as fierce as one might expect of the most competitive
entrepreneurs.
The opinion ends on a note that suggests, “Maybe this is a joint
ownership case. Maybe they are joint owners of the copyright.” In all the
battle they were waging, with capable lawyers on one side and on the
other, over the question, what is a work for hire under the Copyright Act,
no one had paused to ask, “Well, perhaps we should call it quits and say it
belongs half to each of us.” The tendency of lawyers is to wage a pitched281
battle instead of inquiring, even when they are in the throes of litigation,
“Wouldn’t it be better if we would each win in part?”
Dr. Marcus: So you remanded it to the district court.
Justice Ginsburg: Yes, to consider that point.
Dr. Marcus: Do you know how it turned out?
Justice Ginsburg: I don’t know. I don’t know.
Dr. Marcus: Okay. The next one was Dellums v. NRC.
Justice Ginsburg: Right.
Dr. Marcus: And I know it involves standing, which is one of your favorite issues.
Justice Ginsburg: Yes. I just want to add a P.S. on the CCNV case. The court of appeals
decision was affirmed by the U.S. Supreme Court. I think Marshall wrote
the opinion. It has proved important in the relationship between writers,
musicians, artists, and the people who commission them to do work.
There was a mixed feeling about the decision among my artist
friends. Some of them said, “When you’re just starting out in life, you
don’t want there to be any fear about who has the copyright. You don’t
mind being an author for hire and not having the copyright interest.” And
others said, “It gives us one more chip. We can easily transfer the
copyright to the person who’s commissioning the work, but on the whole
we do better having the chance to be recognized as the creator rather than
a mere artist for hire.”
Dr. Marcus: Did your daughter, who’s an expert on copyright, comment on this?
Justice Ginsburg: I think she agreed with the way the opinion came out.282
Anyway, we were talking about Dellums, another standing case.
Dellums concerned a challenge to a license to bring into the United States
certain products from South Africa. The merits of the case were not
before us, only the question of who could sue to assert that shipping these
goods to the United States violated the then Anti-Apartheid Act. The
United States had finally enacted a measure that kept out some products
from South Africa, and the question was whether this particular import fell
within that category. We never got to that question, because the court
divided on standing.
One of the challengers was a man, a South African, who had been
an active opponent of apartheid and had been exiled. Another was a man
prominent in an anti-apartheid organization who wanted to go to South
Africa so he could both observe what was going on and help promote
change. The court said no one had standing in this case because cutting
off this one import was not going to bring about the end of apartheid in
South Africa.
My side of it was, of course this little step was not going to end
apartheid, but it could nudge the development in that direction. If the
Anti-Apartheid Act were vigorously enforced, there would be allowance
of the product that deeply concerned private citizens could bring to bear.
At least it was Congress’s idea in enacting this legislation. By stopping
certain imports, we would hasten the day when apartheid would end.
The majority took the position that you would have to show that if283
the complainant succeeded on the merits, that would yield the ultimate
victory sought with respect to apartheid. I said, no, it just means this
would be an action accumulated with others that could ultimately achieve
that result.
It’s like the Abourezk case in that it’s a view on who has access to
justice, who can trigger the court’s attention and interpretation of the law.
So Dellums, I think, is just like Abourezk, except in one I wrote for the
majority and in the other I dissented.
Dr. Marcus: It’s Judge Milton Pollack who sat with you, and Judge Silberman. Judge
Pollack was visiting.
Justice Ginsburg: Yes, and he wrote kind of a dubitante opinion in the middle. Silberman
wrote the principal decision for the court. Pollack went along reluctantly.
His view was, “These people would lose on the merits anyway, so I’m not
going to worry too much about the standing question.”
Dr. Marcus: The next case is Michigan Citizens for an Independent Press v.
Thornburgh.
Justice Ginsburg: Yes. That involved the Dying Newspapers Act. I don’t remember the
official title of it, but anyway, it allowed, when a newspaper was sinking
fast, for something called a joint operating agreement. Attorney General
Meese had approved a joint operating agreement between the Detroit Free
Press and the Detroit News, which would leave that city a one-newspaper
town.
The case was interesting because the administrative law judge had284
come out the other way, had disapproved the merger of these two papers.
My later D.C. Circuit colleague, Doug Ginsburg, had been head of the
Antitrust Division, and he wrote a very strong opinion disapproving this
merger. Then Meese, as Attorney General, overrode what had been the
uniform position of the administrators up until the case reached him. He
overruled their view and gave permission for the merger.
The question was, when the top person makes a decision that runs
counter to what all the troops below thought, how much deference do we
owe to the top decisionmaker? We all agreed that you owed deference,
but in my view, that deference was somewhat diluted, not simply by the
fact that the others had disagreed with him, but by the quality of their
analysis. Meese offered a terse explanation of why he approved this
agreement. Doug Ginsburg had a much more extensive opinion
recommending that the agreement should be rejected.
So I thought that presented an interesting question about who
speaks for the agency. Yes, the top person, of course, does, but you take
into account – “you” being the court – in determining the measure of
respect you give to the top person, what the quality of thinking had been in
the agency as a whole. I thought Michigan Citizens was interesting from
that point of view – how much weight do you attach to a decision that
emerges from a process that would have led to the opposite decision.
Dr. Marcus: Given our government today, that’s a fairly important contribution.
Justice Ginsburg: Yes.285
Dr. Marcus: The next case is D.K.T. Memorial Fund –
Justice Ginsburg: Oh yes.
Dr. Marcus: – v. A.I.D.
Justice Ginsburg: That case involved the United States’ so-called “Mexico City policy,”
which said that not only would United States’ funding of abortion
counseling anywhere in the world be impermissible. Also, the United
States would not fund any organization that, with other money, not United
States’ funds, but say money donated by Planned Parenthood, engaged in
abortion counseling. Again, the question was standing to sue.
The U.S. policy was that a family planning entity in Uttar Pradesh,
India, could not get government money for birth control if it accepted
grant money from a private organization for abortion counseling. The
government took the position that certainly you couldn’t have the family
planning group in India complain, because they’re from India. They have
no rights under the U.S. Constitution. Well, I’m not so sure about that,
because my notion is that U.S. officials carry the Constitution with them
wherever they travel on government business, just as they do the flag, and
the Constitution is a set of limits on official behavior that should guide
U.S. officials, no matter where they are.
But leaving that aside, the standing position that the court focused
on was that of the U.S. family planning organization which said, “The
government is effectively curtailing our speech and our associations. We
want to have partnerships with family planning ventures outside the286
United States to help countries that are struggling with horrendous
overpopulation, to get on their feet. This government policy that prevents
foreign entities from dealing with us is restricting our speech, that is, who
can listen to what we are saying, it’s restricting our associations, limiting
those with whom can we associate.”
My view was, again, that the U.S. groups ought to have access to
the court to say, “We are being hurt because we can’t speak effectively and
we can’t form associations with these groups.” I devoted a small part of
my dissenting opinion to the question whether the Constitution follows the
flag, or whether a U.S. official acting abroad can act in defiance of the
rules that we hold dear, rules about due process, treating people equally.
I think there’s still a debate on that question, whether the
Constitution is just for people who are in the United States or whether it is
a charter of good conduct that governs U.S. officials wherever they are,
and the dissenting opinion in the D.K.T. case spends a little time on that
issue.
Dr. Marcus: And that just remains open.
Justice Ginsburg: Yes.
Dr. Marcus: For further action. Well, Atari Games, there were two cases.
Justice Ginsburg: Yes.
Dr. Marcus: And I wondered why did you choose those?
Justice Ginsburg: That’s another one that fits within the arrogance of officialdom category,
and it also had an important substantive point to make. Atari was the287
originator of the video breakout game, and, as the game’s creator, wanted
a copyright. The Registrar said, “No. These are just simple geometric
shapes and primary colors, not sufficiently original to quality for
copyright.”
Well, the question was, how much originality do you need to be
original for copyright purposes? As the court understood the Copyright
Act, the gatekeeping role of the Registrar of Copyrights is limited. That
is, if there’s anything original about it, the copyright should be given. If an
alleged infringer says it wasn’t original, that can be fought out in court.
But the Congress did not mean to set up the Registrar as a major arbiter of
originality. The Registrar, on the other hand, wanting to show his muscle
and importance as a government official, rejected the breakout game on
the ground that it’s simple geometric shapes and primary colors.
Well, at the oral argument Doug Ginsburg, who was on the panel,
said to the lawyer who was arguing for the Copyright Office, “I just went
across the street to the National Gallery and I picked up this little print and
it shows a mobile by a well-known artist.” He then said, “Do you see
something in here other than primary colors and geometric shapes?”
[Laughter] “So I suppose this wouldn’t be original.”
Dr. Marcus: That’s a good argument.
Justice Ginsburg: It was an amusing note, but it did make the substantive point.
Dr. Marcus: Perfectly. He didn’t even have to say anything after that. Well, I
sometimes feel sorry for government lawyers who have to bring these288
cases. You know, they often don’t agree with what they’re defending.
Justice Ginsburg: But the Registrar was so incensed, he did it again, so the case –
Dr. Marcus: That’s right. So it came up again.
Justice Ginsburg: Yes, and then we had to say the second time around, “We really meant it.”
It’s understandable. It’s human nature to resent being told you’re wrong, so
you try to defend what you have done. But the second time was the end of
the fray, and the modest role of the Registrar has ever since been
recognized.
Dr. Marcus: The next case is one you just commented on, so do you want to skip it?
Justice Ginsburg: I think we can skip it. It’s about the Pizza Connection investigation that
was going after big bad guys and then picked up this little waiter who had
never seen crack in his life. He was just bragging. Somehow he got
snared into this prosecution. So that was, again, the court sensitive to
abuse by people in authority.
Dr. Marcus: Right. This is U.S. v. Iennaco.
Justice Ginsburg: Yes.
Dr. Marcus: The next case is United States v. North, which was an en banc.
Justice Ginsburg: Yes. And I didn’t engage in the big questions in that case. I had a very
small, but I think important point to make, and that is, Judge Silberman
had held the independent counsel to an alleged concession made at the oral
argument. You know, Maeva, that oral arguments can be very fast paced.
Dr. Marcus: Yes.
Justice Ginsburg: And there was an ambiguous colloquy between Judge Silberman and Jerry289
Lynch, who’s now a district judge in the Southern District of New York.
He was a fine lawyer, also a distinguished member of the Columbia Law
School faculty. In that part of the case, Silberman held against the
government on the basis of the supposed concession made at oral
argument. I thought that was unfair. In fact, as I saw it, the concession
was never made. I explained why I thought this was such an unfortunate
thing for the court to do. If a lawyer so fears being trapped by a
concession, the natural inclination would be simply to just say no
whenever the court asks. So the point of this is that judges ought not be
quick to find concessions in a fleeting remark that’s thrown out in the
course of a very intense oral argument. That was the only reason I wrote
separately – to say that judges should exercise restraint and put themselves
in the position of the attorney before determining that the lawyer in fact
conceded point X, Y, or Z.
Dr. Marcus: And that is so important, because I know that happens.
Justice Ginsburg: Yes.
Dr. Marcus: In too many cases where the lawyer is nervous, and doesn’t even realize
that he’s giving away –
Justice Ginsburg: Yes.
Dr. Marcus: – the whole show, and won’t know afterwards, you know. “I didn’t mean
to do that.”
Justice Ginsburg: Yes, yes.
Dr. Marcus: You know, it’s terrible.290
Justice Ginsburg: Yes. So I thought the courts ought to be cautious about doing that kind of
thing. That was the only point of my writing separately.
Dr. Marcus: The last case on your list is Doe v. Dominion Bank of Washington.
Justice Ginsburg: Yes. Then we get back to courts operating as good old common-law
lawyers responsible for the reasoned development of tort law. This was a
case of a building in D.C. that had deplorable security conditions. The
landlord was neglecting the property, and all kinds of unsavory characters
were walking in and around the building. One day a woman who was
employed in one of the offices pressed the wrong button on the elevator,
got out on a floor where construction was underway. A fearsome man
dragged her to an office and horribly raped her. She sued the landlord for
lack of adequate security, and the landlord’s answer was, “How could I
ever have predicted that there was going to be some bad guy on the floor,
that she would press the wrong button and there’d be some guy on that
floor who would rape her?”
The court’s point was, “You might not have been able to predict
precisely what happened, but this was a tinderbox. You had no security at
all in this building. So anything could have happened, and this disaster
did. The point is that the landlord has an obligation to maintain decent
security on the premises, and if that isn’t done, then the landlord will be
held liable for it.”
This was a far from established proposition. There had been a
notion that the landlord is answerable only to the tenant, that they have291
obligations and rights running between them, but for third parties, the
landlord has no responsibilities. “It’s your building,” we held, “Yes, you
do.” The concept we used to determine whether one person is responsible
for another person’s damages was – was it foreseeable? Was it in your
control to prevent this from happening? We said the precise injury might
not have been foreseeable, but was it in the landlord’s control? Yes, the
landlord could have had decent security on the premises and didn’t. So we
get back to how judges –
Dr. Marcus: Where you started. Right.
Justice Ginsburg: – work, filling in gaps and spaces in the law.
Dr. Marcus: Wow. Well, these are all of the cases that you had chosen specifically,
and I’d like to know, after reviewing this in your mind, and I’m sure you
think of this fairly frequently, how has your experience on the court of
appeals affected your work on this Court?
Justice Ginsburg: What I tried to describe as the way a good judge works in the common-
law system is something that by chance – well, not entirely by chance – I
had an opportunity to describe in March of 1993. I was invited to give a
Madison Lecture at NYU Law School, and I decided to use it for two
purposes. One was to get across my idea of the way judges should work;
that is, that their job is to develop the law incrementally. I concluded with
a quotation from Learned Hand that made the point elegantly.
I had an opportunity to sit down and think about how judges and
lawyers relate, both the civility aspect of it and what’s within the bounds292
of the judge to do and what’s not. That thinking has stayed with me. What
I wrote in that Madison Lecture I still believe about the proper role of a
judge.
It happened that just around the time I gave the lecture, but long
after I’d written it, Justice White announced that he was stepping down,
and I think my statement of views on the way judges should work was a
factor in my nomination.
Dr. Marcus: We can go right into your nomination, then, because I was going to say, in
reading – I attended a couple of the hearings, but not all of them, but I did
read them all, your lecture played a big part.
Justice Ginsburg: Yes.
Dr. Marcus: I kept seeing the references to it over and over again.
Justice Ginsburg: One of the reasons was that the lecture repeated something I had said in a
much earlier piece about Roe v. Wade: “Was the Court moving too far, too
fast?” And for people who regard it as a sin to say anything critical about
that decision, including many feminists, that was something I should not
have done. The talk was controversial for that illustration. I had, on the
one hand, people who very much agreed with what I said about the role of
a judge, and others who said, “Roe v. Wade is a sacred cow. Don’t touch
it.”
Dr. Marcus: I don’t know if you can even tell me how you came to be chosen by
President Clinton.
Justice Ginsburg: You can read accounts in various books.293
Dr. Marcus: I know. I know. You must think about it yourself.
Justice Ginsburg: I think luck had so much to do with it. I would describe myself as the last
person left standing.
Dr. Marcus: I don’t think quite that. [Laughter]
Justice Ginsburg: There were people knocked out for the babysitter’s –
Dr. Marcus: Yes, yes.
Justice Ginsburg: – problem, including Breyer. It was unfair, as it turned out, but he had a
housekeeper.
Dr. Marcus: Really? In that first go –
Justice Ginsburg: Yes.
Dr. Marcus: Because his name was definitely in there, I remember.
Justice Ginsburg: Yes. Various people either didn’t want the job, like Cuomo, or had a
problem, like they were from Arkansas. So I do think I was the last one
left standing. Of course, I had a very, very important, can I call him rabbi
– a grand supporter, and that was Pat Moynihan.
Dr. Marcus: Yes. But how about your relationship with Bernie Nussbaum? Do you
think that made a difference?
Justice Ginsburg: I’ve never asked Bernie point blank, but I don’t think I was originally his
preferred candidate.
Dr. Marcus: Really?
Justice Ginsburg: I think there was someone else he would have preferred. In the end, he
did prefer me when his favorite was eliminated. I’m not sure even who it
was, but I think in the beginning there was someone else.294
Dr. Marcus: Was it Senator Moynihan who brought your name to the President’s
attention, or someone else, or someone in the Justice Department? Do you
know?
Justice Ginsburg: I was on a list.
Dr. Marcus: A list.
Justice Ginsburg: A list of I don’t know how many names. Many names. It was by chance
that the President and Moynihan were going to a fundraiser in New York
and were on a plane together, and the President asked Senator Moynihan,
“Pat, if you were making the selection, who would you choose as the
nominee?” And Moynihan’s first response was, “Mr. President, I’m not a
lawyer. I really shouldn’t give you an opinion on that question.” And the
President said, “But I value your judgment. Who would you pick?” And
then Moynihan said not just that he would pick me, but he gave reasons
why he would. And that’s how my name got up to the top rung.
Dr. Marcus: So how did you feel when you learned you were even in the running?
Justice Ginsburg: I felt – well, very good. I thought it was unlikely I would get the
President’s first nomination, but there was a chance, an outside chance, I
would get the second one.
Dr. Marcus: And then when you learned that you were the one?
Justice Ginsburg: It happened very late. I had seen the President in the morning, and we had
a nice talk. I had been misinformed by Bernie. I’d just flown in from
Vermont, and Bernie said, “It’s okay to go as you are, in your plane
clothes, because he’ll just be coming off the golf course.”295
Well, instead, he was just coming back from church services, so he
was in his Sunday best and there I was in my plane clothes. Nevertheless,
we got on fine. We had a very good conversation. But then I didn’t hear
anything.
Dr. Marcus: Could I just ask you something about the conversation? You don’t have to
reveal it all, but, of course, President Clinton is a lawyer and I believe he
taught constitutional law –
Justice Ginsburg: Yes, yes.
Dr. Marcus: – back in Arkansas, which is not true of all of our past Presidents who’ve
had discussions with potential nominees. Was he very substantive?
Justice Ginsburg: Yes, he was.
Dr. Marcus: Yes? How interesting.
Justice Ginsburg: He asked about many different constitutional law doctrines. I was
pleasantly surprised about the extent to which he had read Supreme Court
decisions and understood major lines of doctrine. Our conversation was
almost all substantive.
Dr. Marcus: Okay. Now you can go on. I’m sorry I interrupted you. You said that you
had been interviewed in the morning.
Justice Ginsburg: Yes, and while I was at the White House, people from Bernie’s office,
including Vince Foster, were in my living room looking over our tax
returns and Social Security returns, and Marty made lunch for them.
Dr. Marcus: [Laughter] That should have won you something, I think.
Justice Ginsburg: Then there was a quiet time after they left. For hours, I didn’t hear296
anything. Finally, around midnight, the President called me, and said he
had just announced, or was going to announce my nomination if I would
accept. The P.S. was, “And be at the Rose Garden,” at whatever hour in
the morning, with acceptance remarks. So I knew as high as I was with
this great news, I had to settle down and write some remarks that I could
deliver the next day.
Dr. Marcus: That must have been difficult, but it certainly was successful. I cried
when I heard the remarks at the Rose Garden. My mother was all excited.
It was really a wonderful moment.
Justice Ginsburg: The D.C. Circuit judges – it had become traditional by then – had a party
for me, once we knew the nomination wasn’t going to be in any trouble,
and they were all helpful to me during the confirmation process. Most
helpful of all was David Sentelle.
Dr. Marcus: Really.
Justice Ginsburg: Because the President moved late – I wasn’t nominated until June
fourteenth. Congress was going to close down by August. Any senator
could have put a hold on me. It didn’t have to be a member of the
Judiciary Committee. I talked to David Sentelle about his friend Jesse
Helms. I suspected that Senator Helms would not be in my corner, and I
didn’t care about that. But I didn’t want him to put a hold on me. David
Sentelle said he’d do what he could.
He came into my chambers one day, gave me a big bear hug, and
said, “Ruth, Jesse’s not going to vote for you, but he won’t put a hold on297
you.” I knew then that I would get through the Senate before it recessed.
After that the D.C. Circuit scheduled the party for me.
Dr. Marcus: So everybody was excited on the D.C. Circuit when this happened.
Justice Ginsburg: Well, there was some –
Dr. Marcus: This was like the third one in how many years?
Justice Ginsburg: Yes. And almost a fourth one, because D.H. Ginsburg came very close.
Dr. Marcus: Yes. So before your nomination was actually announced, there doesn’t
seem to have been much process that you were involved in. You know
how candidates are vetted at the Justice Department and –
Justice Ginsburg: Yes. I didn’t have any communication from anyone in the White House
until the weekend just before. I was at our Circuit Judicial Conference. It
was a judges-only conference that year. Joel Klein, who was then working
on a part-time basis with Bernie on judicial nominees, called me and said,
“What are your weekend plans?” I replied, “Well, we’re going from the
D.C. Circuit conference, which ends Friday, to Vermont for a wedding the
next day.” And Joel said, “Can I call you later about maybe canceling
attendance at the wedding?” And I said, “Okay.” I told him when we
were leaving the Conference. It was on the Eastern Shore. What is the
name of that inn?
Dr. Marcus: The Tidewater?
Justice Ginsburg: Tidewater Inn. In the meantime, Ralph Mecham, head of the
Administrative Office for U.S. Courts, who was presiding over a session,
announced to the full Conference, the full D.C. Circuit Conference, “It’s298
Breyer, subject to lunch.” By that time I had received a half dozen phone
calls from the White House. I wondered how he had that inside
information, because the information I was getting was that Breyer would
not be the nominee.
Dr. Marcus: It’s not the first time Ralph’s done something like that. [Laughter]
Justice Ginsburg: And I think he’s always just slightly embarrassed when he sees me,
because he remembers that.
Dr. Marcus: Well, that works in my favor. [Laughter]
Justice Ginsburg: And I couldn’t say anything to anyone at that time. Anyway, the call,
when I got back to D.C. that Friday night was, “Go to Vermont. It’s okay
to go to Vermont.” So I went to Vermont, thinking, “Well, I’m out of the
running.”
Soon after we checked in at the hotel, and we got there late Friday
night, Bernie Nussbaum called, saying, “Come back.” [Laughter] I said,
“I came this far. Suppose we go to the wedding and then get the first
plane back to D. C. Sunday morning. Will that do?” And that’s how it
worked out.
I had been hearing all kinds of rumors, but never had any direct
contact from the White House until the weekend before.
Dr. Marcus: Once your nomination was announced, who helped you prepare for the
Senate hearings?
Justice Ginsburg: Many people. These were early days for the Administration. They didn’t
have a polished operation the way the Bush White House did for Thomas.299
Dr. Marcus: Michael Luttig helped Thomas, I remember.
Justice Ginsburg: We did it this way. It was a great way. Joel Klein and Ron Klain, who
was also involved, said, “Pick the people you would like to be your
teachers in particular fields, the people you respect, and we’ll team each
one of those experts with a former law clerk of yours, and we’ll give you a
tutorial.” So in labor law I had Bob Gorman as my teacher. For the
religion clauses of the Constitution, I had Kathleen Sullivan. I had one
solid week of background reading and close discussion with people I
regarded as very high-quality scholars in the various fields, plus a law
clerk to take notes. That week was wonderful. I enjoyed it thoroughly.
The following week was not so good. That week was devoted to
simulated hearings. People from the White House would take the parts of
various Judiciary Committee members, and they would barrage me with
questions. The principal questions concerned my ACLU affiliations. At
one point they asked this kind of question: “Were you on the ACLU Board
in such and such year, when they adopted a resolution on such and such a
subject? And how did you vote?”
At that point I said, “Stop. There’s nothing you people can do that
will lead me to badmouth the ACLU. That’s just not going to happen, so
why don’t we just leave it at that. I will handle the questions about the
ACLU.” The ACLU never came up in the hearings. No Committee
member questioned me about my ties to the Union. But they were really –
Dr. Marcus: They were concerned.300
Justice Ginsburg: They couldn’t find anything else troublesome in my background. This
they thought would be. I didn’t enjoy that week and I particularly didn’t
enjoy the day they showed me two videotapes. One was, “This is the way
to do it,” and the other, “This is the way not to do it.” The way not to do it
was Bob Bork, and the way to do it was David Souter. Watching the tapes
of a very proud, highly intelligent man being brought down was painful.
It was just painful to watch those tapes. Bork had refused any White
House or Justice Department assistance at all. He had been a teacher of
constitutional law and he was going to handle the hearing unaided. But he
isn’t a man of the people. He didn’t realize it wasn’t the content of his
responses so much as the way he communicated them.
Dr. Marcus: I heard this from people on the Senate side, that it was really the
arrogance.
Justice Ginsburg: Yes.
Dr. Marcus: That’s what killed it.
Justice Ginsburg: Yes.
Dr. Marcus: Because everybody realized that he was very intelligent, and there was a
lot of talk about his views on this, that, or the other things, but not so
different from people on the Court.
Justice Ginsburg: Yes. It was a great tragedy. Had he accepted coaching on dealing with
the Committee, he might have done all right. His whole life has been
warped by this episode.
Dr. Marcus: I think it’s understandable in the sense that it’s not only a private event; the301
whole world was watching this.
Justice Ginsburg: Yes.
Dr. Marcus: It’s got to be very, very difficult to deal with. I know you had an opening
statement. Did you write it or did you –
Justice Ginsburg: Yes.
Dr. Marcus: You wrote it by yourself?
Justice Ginsburg: Yes.
Dr. Marcus: Really? That’s a lot of work, too.
Justice Ginsburg: Yes. Unlike the Rose Garden speech, which they couldn’t get in advance,
they just looked it over about a minute before I gave it, I wrote out the
Senate opening statement and gave it to the White House people days in
advance. I made some changes I regarded as harmless in response to their
concerns.
Dr. Marcus: How about all of the written material that you have to submit, which
seems to be a ton? It’s ridiculous.
Justice Ginsburg: Yes.
Dr. Marcus: And it’s repetitive, I think.
Justice Ginsburg: Yes. First you do it for the White House. No, first you do it for the FBI
and then the White House, then the American Bar Association and then
the Senate. And the Senate was by far the worst.
Dr. Marcus: It takes a tremendous amount of time to do all of that.
Justice Ginsburg: Yes, and there came a point when I thought we had done everything we
could. For example, the ACLU – I obviously couldn’t remember how I302
voted on every resolution, so we just gave them, en masse, all the minutes
of all of the board meetings I attended during the period 1973-1980. They
wanted every speech I had ever given. Well, in the middle seventies I
gave many talks about the Equal Rights Amendment. They were all
basically the same, variations on a theme. I could give them one or two
texts, but I couldn’t give them the variation I gave in Columbus, Ohio, or
Albany, New York, for example.
So there came a point at which I felt that we had everything
together, all the attachments anyone could possibly want. Marty and I
were going to celebrate and go to the movies that night. And then the
White House called to say, “It’s not enough. Justice Thomas submitted
more paper than you did.” [Laughter] So I said, “Well, I can file this set
of papers for myself.” “Oh no, you can’t. We have to do it.” “Why not?
I’m the nominee.”
We compromised. I added few more things. I don’t even recall
what they were. We didn’t go to the movies that night, but we filed in the
Senate the next day.
Dr. Marcus: How much of this do you really think is necessary?
Justice Ginsburg: A comprehensive disclosure, I think, is important. But once is enough.
Whatever one submits to the White House can be shared by the ABA, and
later by the Senate. One comprehensive submission should be enough.
What the Senate submission did, it gave staffers – it provided business for
staffers or summer interns. They could go through the reams of paper. No303
senator went through those materials to any extent, just the staff.
Dr. Marcus: I think it discourages people, because yours was – or a Supreme Court
justice may have to do the most, but even on a lower level, there’s such a
tremendous amount of paperwork that is really not needed. It’s very
discouraging, the whole business, and you want good people to be in
public service. I don’t know what we do about it, but it’s certainly gotten
to a point where it would be nice to do something.
I need to stop and put in a different tape.
Justice Ginsburg: Okay.
[Recording begins in mid-conversation.]
Justice Ginsburg: … the D.C. courts and the city itself, their overseer is a committee of
Congress. There was good cause, I thought, for doing the gender bias
study together with the District of Columbia courts rather than duplicating
the effort in the local courts and the federal courts. But that proposal was
rejected. So the D.C. courts went ahead, and their report was well under
way.
Then a group of judges – the circuit council appointed two court of
appeals judges and two district court judges to do our study. Clarence
Thomas chaired the committee at the outset.
Dr. Marcus: Yes, I think that’s right.
Justice Ginsburg: He had been head of the EEOC. He said he knew there had been several
studies of this nature. He wanted to be extremely well prepared, so he
planned to take several months to look into the whole question. Then he’d304
come up with a plan of operation for us.
At the end of several months, we had a meeting at which he
announced he was going to recommend against going forward with this
kind of a study – by then it was to be a study of race as well as gender bias
– because he had collected all of the jury polls, the post-service jury polls.
Jurors are asked a number of questions about their experience. He said in
not one of those responses in the last five years did anyone ever complain
of either gender bias or race bias, which showed that there really was no
problem in this circuit and therefore no need for the study.
Those of us who disagreed that the jury polls were dispositive
decided to go on, and Joyce Green became the committee’s head. There
was considerable resistance, much more among the circuit judges than the
district court judges. The reservations centered on judicial independence.
“You’re asking questions about judges’ employment practices. It’s not
proper for outsiders to so inquire.” There was tension throughout. Some
of the judges refused to have any conversation with any task force
representative. Others were quite open and willing to engage in discussion
with them.
In New York, where the now chief judge, Judge Walker, headed
the task force —- he knew about the D.C. Circuit’s experience, he wanted
it to be done right in his circuit from the start. He played a very active and
supportive part from the beginning. The judges and the people on the
Second Circuit task force worked together very well. In the D.C. Circuit,305
that just didn’t happen.
Dr. Marcus: Almost before anything happened, I gather three of the court of appeals
judges just said, “No, we don’t want to participate in this. We don’t think
you should be doing it,” and then when a preliminary report or an outline
of the research that was going on was actually presented, there were a
good number of court of appeals judges who disapproved of that.
Justice Ginsburg: Yes.
Dr. Marcus: And disassociated themselves from the findings.
Justice Ginsburg: And it was largely on judicial independence grounds.
Dr. Marcus: Now, do you know whether – I know the reports are out now. I spent my
Labor Day weekend looking at them. Have any of the recommendations
been implemented here in the District?
Justice Ginsburg: The only one they said they were going to implement concerned sexual
harassment on the job. That’s all. Nevertheless, I think the task force
report served its essential purpose, which was to sensitize people to
unconscious bias, including who gets to attend meetings when training is
offered, things people just didn’t –
Dr. Marcus: Like who participates on court committees and things of that sort.
Justice Ginsburg: Yes.
Dr. Marcus: I agree. And would you say gender and race – I mean, when you look at
the two reports, you see that their suggestions are almost equal. It’s the
same kind of thing. They consider them separately and there were
separate studies of gender bias and race bias, but they come pretty much to306
the same conclusions and recommendations that people have to be more
sensitive in their behavior, just very small, concrete things that can be
done.
Justice Ginsburg: Yes.
Dr. Marcus: So maybe it will be revisited a few years hence, not in such a big way, but
just to see.
Justice Ginsburg: Yes. I think there are changes. Women are being appointed to
committees. The tendency of a decision-maker to choose someone who
looks the same, the same background, that’s just human nature. So if you
want to be more inclusive, you have to become conscious of something
you’ve not been conscious of. You have to say, “How come I never select
a woman for this committee?” Or as a bankruptcy trustee.
It’s what Carter did when he put women in numbers on the federal
courts. He said, “I am deliberately going to look for people who are not
like me, people who have been forgotten, ignored before, because they are
part of America and they should be included in its decision-making
tribunals.” So it’s that simple idea, what’s called in Europe “positive
discrimination,” thinking about including people who’ve been left out of
the decision-making process. And that’s happening in all the federal
courts.
Dr. Marcus: I think so. Well, do you have anything else you want to say?
Justice Ginsburg: No.
Dr. Marcus: I have one other thing. We can’t end the interview without putting on the307
record how the D.C. Circuit Historical Society got started. I mean, after
all, this interview is a result of that whole effort, and you were certainly
part of that.
Justice Ginsburg: Remind me. Dan Gribbon – was he our first?
Dr. Marcus: He was the first president, but the idea must have come from the court, not
from him.
Justice Ginsburg: Yes. It wasn’t original with the D.C. Circuit. Some other circuits – the
Ninth Circuit –
Dr. Marcus: They have history, but who was it on the D.C. Circuit that said, “Look.
There are other histories, history societies on circuits. We should have
one”?
Justice Ginsburg: I was one of the promoters of having the Historical Society. Who else was
on – it must have been whoever was the chief judge at the time.
Dr. Marcus: Was it Pat Wald?
Justice Ginsburg: It may have been. It may have been Pat. And I think another impetus was
the book that had been done in the Second Circuit.
Dr. Marcus: Right.
Justice Ginsburg: The book on the history of the Second Circuit that Jeffrey Morris had
done.
Dr. Marcus: Is that a reason you came to the conclusion that the D.C. Circuit needed a
scholarly study?
Justice Ginsburg: Yes, because all there was, was that little book.
Dr. Marcus: By Barrett Prettyman.308
Justice Ginsburg: Right. And that seemed very skimpy next to what other circuits were
doing, and particularly the Second Circuit. So we had a meeting, I
remember, with Mike Seymour, who had spearheaded the Second Circuit
effort. We talked to him about what they had done. In addition to the
history, they were presenting exhibitions.
Dr. Marcus: In the courthouse.
Justice Ginsburg: Yes. And then the oral history became part of it. Originally we had
advice from the people at the Columbia oral history project.
Dr. Marcus: Well, we investigated it, but it never worked out that they actually did
something, I think.
Justice Ginsburg: No, but they did come up to talk to us.
Dr. Marcus: Oh, they did. Oh yes, I remember that. But I think the impetus for the
oral history was the Jeffrey Morris book. In other words, in doing his
work, he realized how valuable having oral histories would have been.
Justice Ginsburg: Yes.
Dr. Marcus: And encouraged us to do some. I think he hoped to have some benefit of
it. I don’t think he did, but I think that was the idea.
Justice Ginsburg: I think he – didn’t he do the history with Gary Gesell speaking?
Dr. Marcus: Gesell, who died before it was finished. Yes. He was really hoping to use
that for his book. I think that’s right. Now, who decided on Jeffrey
Morris? Was it just that he had done the Second Circuit and seemed like a
likely –
Justice Ginsburg: We had a committee, and Pat Wald was definitely on that committee. We309
had Jeffrey Morris’ Ph.D. –
Dr. Marcus: Dissertation.
Justice Ginsburg: – that he had done on the – it was just on the D.C. Circuit, not the district
court. And we were all favorably impressed with that, plus the work that
he had done on the Second Circuit. The only question in my mind was,
was Jeffrey going to be tired, having done the Second Circuit story and
having done his Ph.D. thesis, would he be reluctant to engage once again
in such a project.
Dr. Marcus: And it is an enormous project. It was very good. When we decided to do
the oral history project, do you remember if there were difficulties getting
the approval of the judges on the court?
Justice Ginsburg: Nothing like the gender bias project, no. No.
Dr. Marcus: I mean, everyone’s cooperating, as far as I know.
Justice Ginsburg: Right. I suggested people who would be good to be on the Society board,
and it was also something the district court was enthusiastic about, as well
as the court of appeals.
Dr. Marcus: Certainly I think those of us who have been involved in it think it was a
very good idea.
Justice Ginsburg: Yes.
Dr. Marcus: And are really happy that it’s going on and hope that it will continue for
many years to come, with other people to carry on the work.
Justice Ginsburg: Yes.
Dr. Marcus: We hope. I thank you, Justice Ginsburg, for doing this interview. I know310
it has been very long and a great effort.
Justice Ginsburg: But we made it and there’s still time for me to do a few things before
meeting with my trainer.
Dr. Marcus: Good. Okay.
Justice Ginsburg: It’s six o’clock.
END OF SESSION SEVEN