A Terrible Process, and Not Much of a Choice


The conventional wisdom on Ruth Bader Ginsburg's nomination to the Supreme Court is that a bad process led to a good nominee. The conventional wisdom has got it half right: It was a terrible process, but Ms. Ginsburg isn't much of a choice, either.

Predictably, the choice has been greeted with acclaim by the press, the legal community and feminist groups. None of these groups can really be trusted on this. The press is uncomfortable applying any standard of excellence to public figures, preferring instead to focus on gaffes or personal tidbits.

Lawyers and law professors always say nice things about nominees, particularly at first, because they never know when they might have to argue a case before a justice they called lackluster before confirmation. Even Clarence Thomas got good press in the days immediately following his nomination.

As for feminist groups, they continue to be mesmerized by the ghost of Roe vs. Wade, even though the presence of a Democratic president and Congress all but guarantee that the right to abortion will remain a fixture. Justice Ginsburg will decide many important cases in the decades to come, but you read it here first: Virtually none will involve abortion.

It is said that President Clinton was attracted to Ms. Ginsburg because she has a compelling life story. That's great, but so did Clarence Thomas. Mr. Clinton's job was to pick a justice, not the star of a miniseries. Despite the hype, the evidence suggests he could have done a lot better.

Ms. Ginsburg's supporters are claiming that she is the Thurgood Marshall of the women's movement, but as they say, I knew Thurgood Marshall, etc., etc., and Ms. Ginsburg is no Thurgood Marshall. True, she litigated some path-breaking cases and is a serviceable judge. But what distinguished Marshall's career was the fact that as a jurist his liberal vision was extended to other groups besides his own that needed legal protection -- women, death-row inmates and environmentalists, to name a few.

In contrast, Ms. Ginsburg's record as a judge on the U.S. Court of Appeals for the District of Columbia Circuit reveals that while she's strong on women's rights -- in which she had a direct interest -- she's been no friend to other groups such as environmentalists, gays or public interest advocates.

That doesn't make her a visionary; it makes her something of a narcissist, which is one reason why Chief Narcissist Clinton may have been attracted to her and found himself unable to stop blubbering at her rather self-congratulatory acceptance address.

A glance at Ms. Ginsburg's judicial career reveals that she's notable for not standing for much of anything. There have been judges who made their mark on the D.C. Circuit or other similar courts: Skelly Wright, David Bazelon, Richard Posner -- even, some say, my mother-in-law, Patricia Wald, who apparently was never under consideration for this appointment, had absolutely nothing to do with this piece or its contents and will probably kill me when she reads it.

But it's in vain that one searches for anything really memorable that Ms. Ginsburg has said or done on the court.

Saying she decides things on a narrow "case by case" basis is another way of saying she's a proceduralist without a core or a philosophy -- the David Gergen of the judiciary.

Moreover, pause for a minute to look who's praising Ms. Ginsburg. Robert Bork had nice things to say, and Antonin Scalia is already on record as liking the choice. The Wall Street Journal editorial page seems happy, as does the "running to the right" New Republic. In her White House address, Ms. Ginsburg didn't quote Brandeis, Warren, or Black; she cited Rehnquist and O'Connor.

Excuse me for asking, but wasn't a Democrat supposed to make this appointment?

There are at least a few people out there who thought the election of a Democrat would mean a president who appointed justices who believed in Democratic ideals. What's happened instead is that anyone who fought the good fight for those ideals over the past 12 years against great odds -- whether your name is Larry Tribe or Abner Mikva -- has been banished to the woodshed. If you had the courage to fight Mr. Bork, you're gone. If you're a friend of Ted Kennedy, forget it.

At least give the Republicans credit. When they got elected, they had the guts to select strong proponents for their point of view whether the name was Scalia, Bork, or Douglas Ginsburg. In other words, there's good news and bad news on the horizon. The good news is that Bill Clinton has finally found someone he can stand up to. The bad news is that it's his friends.

As for the insanity of yet another Clintonian process that publicly sullied the reputation of able public servants such as Bruce Babbitt and Steven Breyer, enough has been said. Let's leave the postscript to F. Scott Fitzgerald, who, in "The Great Gatsby," described Tom and Daisy Buchanan.

"They were careless people," he wrote. "They smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it was that kept them together, and let other people clean up the mess they had made."

Tom and Daisy, meet Bill and Hillary.

Steven Stark is a columnist for the Boston Globe.

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