WASHINGTON -- Supreme Court nominee Ruth Bader Ginsburg strongly urged Congress yesterday to add an Equal Rights Amendment to the Constitution but gave no clear sign that she would try to get the court to create new women's rights if there is no ERA.
Spending much of her time on her second day before the Senate Judiciary Committee answering questions about discrimination against women, the judge and former pioneering women's rights lawyer repeatedly recited her constitutional view that women are "full and equal citizens."
But, when pressed to say whether that means she favors the creation of new rights by the court, she declined to answer. She said the court had left open, as an unsettled issue, whether to give women as strong a constitutional guarantee of equality as racial minorities have, and offered no personal answer to that.
Judge Ginsburg would be only the second woman to sit on the Supreme Court. Because of her background as a lawyer who had won many of the first landmark rulings giving women constitutional rights, her nomination has raised the issue of whether she would be an "activist" female justice working to expand those rights.
Although she said the Constitution's 14th Amendment guarantee of "equal protection of the laws" definitely extends to women, she insisted "that is not at all taking an activist position" because most people would agree with it.
The day's questioning appeared to be a genuine effort by senators to learn about her judicial philosophy without concern over how her answers might influence votes, since there is no indication yet that any member of the committee or of the full Senate will vote against her.
As yesterday's hearing ran on into the evening, it reached a historic point: the first time a woman nominated to the court was questioned by a female senator. Sen. Dianne Feinstein, a Democrat from California and one of two women appointed to the committee this year, questioned Judge Ginsburg about the Supreme Court's latest abortion ruling narrowing the constitutional right of a woman to end a pregnancy.
The senator, however, had the same lack of success as the others in quizzing the judge on major issues: She got no direct answer. Judge Ginsburg said the abortion issue could come up again.
While many of her answers and comments during the day were vague, and were labeled by Sen. William S. Cohen, R-Maine, as expressions of "Delphic ambiguity," the judge did speak directly and pointedly when questioned by Sen. Arlen Specter, R-Pa., about women's rights.
She confessed openly to "skepticism" that Congress and state legislatures could be trusted to pass new laws to protect women's rights, so long as those chambers are made up mostly of men.
She said she had come from an era when most laws adopted by men to protect women actually worked in reverse, and protected "men's jobs" or opportunities from being shared fully by women. She was instrumental as a lawyer in getting several such laws struck down, under a more expansive reading of the Constitution's guarantee of equal treatment.
In telling the senators of her long-standing support for an Equal Rights Amendment to the Constitution, the nominee several times suggested that that would be important mostly as a "symbolic" gesture -- thus hinting that she did not think there was any practical need at this point for an explicit guarantee in the Constitution for the equality of the sexes.
The core women's rights issue that she noted is still an "open question" for the court is whether the present 14th Amendment "equal protection" clause should nullify any law that treats women and men differently, unless such a law is clearly necessary for the operation of the government.
As a lawyer, Judge Ginsburg had advocated just such an expansion, and she reminded the senators of that. But she refused to say how she should feel about it as a justice.
Among other major issues the judge refused to discuss with the Judiciary Committee yesterday was the constitutionality of the death penalty. Asked if she had any "constitutional scruple" against capital punishment, she said, "My own view . . . is not relevant to any question I am asked to decide. I will be scrupulous in applying the law. My views are not relevant to the job for which you are considering me, as a judge."