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Which Judge Ginsburg Will Show Up Tuesday?

Washington. -- Ruth Bader Ginsburg, already something of a national heroine, becomes an even more lasting eminence on Tuesday as she joins the Supreme Court -- only the second woman in history to take a place among 105 men who have been justices.

Strangely, though, almost no one can say with any confidence what kind of justice the 60-year-old Ms. Ginsburg will be. The reason is simple: Some 20 years of public prominence provide no sure answer, and neither do eight weeks of close scrutiny this summer.

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Two decades ago, she began emerging from academic obscurity in America's legal community, and ever since she has been in or near the law's limelight. For the past eight weeks, she has been under Washington's -- and the nation's -- intense study as President Clinton's first nominee to the court, and the first in 26 years to be chosen by a Democratic president.

But nothing that she wrote or said over her years of highly visible celebrity, and nothing she or any of her many supporters or few detractors said this summer, gives a reliable clue of who the real Justice Ginsburg is likely to be -- in her first years on the highest bench, or ultimately.

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She begins work Tuesday on a court struggling to define itself; she will be the fourth new member in five years. No judicial philosophy prevails predictably, no single member is dominant, all alliances seem loose and shifting. On such a court, Justice Ginsburg might be a dynamic leader or a cautious follower.

She begins work as a justice after a career that projected different, even contradictory public images: the precedent-smashing, inventive and liberated professional woman who crusaded for full equality of the sexes; and the careful, sometimes pained perfectionist willing to face an issue only after being (in her own words) "armed to the teeth" with preparation.

The first image is the one that seems to define her career as a women's rights lawyer, from the late 1960s through 1980; the second is the portrait of her life as a federal appeals court judge here since 1980.

From the moment Judge Ginsburg began speaking to the

Senate Judiciary Committee late last month, the contradictory images about her were on display.

She adoringly praised the work of pioneering American women -- reformers Susan B. Anthony, Elizabeth Cady Stanton, Harriet Tubman -- and remarked: "I stand on the shoulders of those brave people."

But then, to describe the style of judging she admired, she used a quotation from a former Supreme Court justice, Benjamin N. Cardozo, a now-dated quotation that is tinged with imagery of woman as a romantic object: "Justice is not to be taken by storm. She is to be wooed by slow advances."

At only one point in the hearings did Judge Ginsburg make comments that sounded like the views of a militant feminist: her expression of skepticism about the virtue of laws supposedly to "protect" women when such laws were passed by legislatures dominated by men.

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The Judiciary Committee tried, with measured diligence, to find out which image fit her best. It failed in that pursuit during three days of nationally televised hearings. Then, it voted 18-0 to approve her despite the abiding mystery. The Senate, learning no more about her, went along, confirming her swiftly last Tuesday by a 96-3 vote.

She had not come before the committee as the "stealth candidate" that Justice David H. Souter had been when he appeared in 1990, a total unknown. Ms. Ginsburg had written 319 court opinions and taken part in some 400 others, had gained fame by the advocacy that coaxed the Supreme Court into taking a late 20th century view of the role and status of women, and had compiled stacks of scholarly and often provocative articles and speeches.

But there was, within that record, too much internal contradiction to define her with anything like clarity: For example, she favored a right to abortion but complained that the Supreme Court had been too bold in the way it fashioned such a right in Roe vs. Wade in 1973, and she accused the court of stifling a movement toward abortion reform in state legislatures.

Ms. Ginsburg's paper trail had been nearly as long as that of Supreme Court nominee Robert H. Bork (defeated in 1987), but his had been marked all along the way by a persistent, strong strain of conservatism.

Sen. William Cohen, Maine Republican, put the Senate's problem with nominee Ginsburg bluntly to her midway through the committee hearings: "There is some suspicion in some circles . . . that you are basically a political activist who's been hiding in the restrictive robes of an appellate judge, and that those restrictions will be cast aside when you don a much larger garment."

So, he said, senators would try "to probe exactly where it is you would likely take yourself -- and perhaps even the court -- on any given decision."

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When the effort was just about over, with only the final tally to be cast in the full Senate, Sen. Charles Grassley, Iowa Republican and a member of the committee, told a few colleagues on the Senate floor last Monday: "Only time will tell whether Judge Ginsburg's cautious approach [on the appeals court] will persist. . . . I am hopeful she will resist the temptation to lead society as some sort of judicial philosopher queen."

It was an odd metaphor, one that no one had thought to apply to her 13 years of modest jurisprudence on the appeals court. Mr. Grassley, in fact, did not seem to be genuinely worried that a Justice Ginsburg would yield to such a temptation. Said he, with some satisfaction: "Fortunately, her activist cases [as a judge] are aberrations in her record of judicial moderation."

The Senate, in a very real sense, voted for her on the basis of its members' hopes, rather than their keen understanding of who and what she is. The liberals' hope that she would again become what she was as a creative feminist advocate, the conservatives' hope that she would be a justice very much like the "gradualist" lower court judge she has been.

Judge Ginsburg had told the committee, with not a whiff of apology, that she was determined to give them "no hints, no forecasts, no previews" of what she would do on the court. Her past record was before the Senate, she said, so judge her on that.

Sen. Alan Simpson, Wyoming Republican, remarked later with some admiration that she had refused to answer general questions because she said judges do not deal in the abstract, but also had refused to answer specific questions because she thought they might become issues before her as a justice.

Sen. Arlen Specter, Pennsylvania Republican, was less accepting. Nominees, he complained, "answer about as many questions as they have to for confirmation" and he made clear he saw her as no exception.

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When Judge Ginsburg did answer, her replies usually were so surrounded in qualifications and digressions, quotations from others, and lengthy recitation of facts that little of her own thinking emerged. And, when she did appear to be saying what was on her own mind, it was not often clear what she actually meant in legal terms.

The clearest illustrations of her style appeared to be her comments on abortion rights. She got a lot of praise from liberals, and some complaint from conservatives, for seeming to speak out anew in favor of a constitutional right to abortion. In fact, it is far from clear that she was making any statement about her present views, or her potential future views, on the subject.

Sen. Hank Brown, Colorado Republican, was questioning here about "your writings" on the abortion question, and said he was not asking for her present views. In a lengthy answer, she described "how my thinking developed on this issue," and she did so by discussing a legal brief she had filed in the Supreme Court in the same year that the Roe vs. Wade case was on the docket.

That, she testified, "is the place where I first thought long and hard about this question." She went on, under further questioning, to describe "the argument" she had made back then "in this case."

Along the way, she made a comment that anti-abortion groups seized upon to attack, a comment that appeared to have produced the three final Senate votes against her by anti-abortion senators. She said about the abortion choice: "This is something central to a woman's life, to her dignity. It's decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choice."

But, as the exchange with Mr. Brown went on, he accepted that comment as being a further recollection of what she had told the court in the 1972 case.

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She also made references to her New York University lecture last March, in which she had criticized the court for sweeping too broadly in deciding the Roe vs. Wade case. Again, she was making no new statement, but simply referring back to past utterances.

When she was asked several times about the Supreme Court's most recent decision on abortion, the 1992 ruling in a Pennsylvania case that appeared to authorize many new legal limits on abortion, Judge Ginsburg seemed not to have understood precisely what the court had done, and thus her comments revealed little about how she might apply that ruling in a future cases.

Sen. Grassley criticized the court for including in that opinion a lengthy and sweeping statement about the court's need, at rare points in history, to try to quiet a national debate over a deeply divisive issue, but the nominee belittled that as "a paragraph" that was not important to the ruling. Justice Souter, however, had put particular emphasis on those broad statements when the court orally announced the 1992 decision.

Although the Pennsylvania decision narrowed significantly the constitutional protection Roe had given to abortion, Judge Ginsburg repeatedly praised it as an advance in a woman's right to choose -- a view that is disputed by activists on both sides of the abortion controversy.

Although the court in that ruling overruled key parts of two prior rulings strongly in favor of abortion rights, the nominee said that the 1992 decision was merely "in tension" with those earlier decisions, and added: "I expect . . . that tension is going to be resolved" in future case.

In answering many questions about the power of judges to recognize new rights not specifically mentioned in the Constitution (such as abortion), she allied herself with past precedents suggesting that the court sometimes may do that, but she gave no indication what she would do if she were confronted with new claims for specific new rights.

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Sometimes, the judge got into trouble for seeming to say something that she did not -- a problem probably traced to her long and detailed answers. One such instance came after she replied to one of the many questions from senators about when the court should boldly step out in front of the country's attitude, to declare some sweeping new legal concept.

Later, conservative senators protested that she had replied to one of those questions by saying that courts might intervene to ** act when "political avenues become dead-end streets." But, in saying that, the judge had expressly noted that she was quoting a law professor's views. She also was accused of saying that courts might have to "legislate a bit" -- but she said that in directly quoting the late Justice John Marshall Harlan.

She got into difficulty with Sen. Jesse Helms, North Carolina Republican, who voted against her confirmation, when she said that all forms of discrimination were "deplorable," and said when asked that discrimination against gay people was, too. But her answers were carefully limited in scope, and she refused, with some emotion, to answer when asked expressly about gay rights under the Constitution.

Discussing the one field where she had made her strongest reputation as a lawyer, women's right to legal equality, Judge Ginsburg would not answer specifically when pressed to say whether she would be in favor of strengthening that right under the guarantee in the Fourteenth Amendment of "equal protection of the laws." She said that further protection remains "an open question" for the court.

In one of her digressions when that question was put to her, she offered a curious interpretation of constitutional equality: she said that, because the Nineteenth Amendment had given women the right to vote in 1920, that made them full citizens, and it was that amendment that then assured that they would get the full benefit of the Fourteenth Amendment's promise of equality -- put into the Constitution in 1868. (That part of the Fourteenth Amendment, however, promises equality to "any person," not just to citizens.)

She made it clear, though, that she was making no promises that, as a justice, she would use that unusual argument to lead the court to expand women's rights.

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Lyle Denniston covers the Supreme Court and legal issues from the Washington bureau of The Baltimore Sun.


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