RUTHFULLY YOURS

Justice Ginsburg was present when Mr. Clinton made the comments on Wednesday evening in Washington, but may not have expected the need to address details of a decades-old conversation as alleged by Mr. Clinton.

The former President and the current Justice were on stage along with former Secretary of State Hillary Clinton at Georgetown Law’s second annual Ruth Bader Ginsburg lecture. The three were being interviewed by Georgetown law professors Wendy Williams and Mary Hartnett, who are the Justice’s authorized biographers.

Adam Liptak of the New York Times notes that Mr. Clinton was discussing a 1993 interview with Ms. Ginsburg which occurred while he was considering nominating her to the Court:

“I knew after about 10 minutes that I was going to give her the job,” he said.

They discussed abortion, Mr. Clinton said. Justice Ginsburg, then a federal appeals court judge, had been critical of aspects of Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion.

The Supreme Court had moved too fast, Justice Ginsburg wrote in 1992. It would have sufficed, she wrote, to strike down the extreme Texas law at issue in the case and then proceed in measured steps in later cases to consider other abortion restrictions.

Mr. Clinton said Judge Ginsburg talked freely about all of this. “She made a heck of a case,” he said. “We were just two people alone, and she was telling me what she honestly thought.”

In a video excerpt of the event from ABC News, Mr. Clinton prefaces the story by telling the assembled audience at Georgetown, “There was one thing that we did discuss and I feel that I should tell you because it will illustrate why I thought I should appoint her.” He then explained how abortion had been “a big issue” in his 1992 election and that he had run as a pro-choice candidate. Then Mr. Clinton said:

She knew this perfectly well, that I was under a lot of pressure to make sure I appointed someone who was simon-pure, which I had said I thought was important.

Mr. Clinton then goes on to describe how the potential nominee described her thinking on the issue, which includes a belief that there’s a strong case for abortion rights on equal protection grounds, not just privacy.

Ed Whelan writes in National Review:

By “someone who was simon-pure,” Clinton clearly means someone who would surely support the proposition that the Constitution confers an expansive abortion right… Clinton’s candid account of this conversation strikes me as rather difficult to reconcile with nominee Ginsburg’s sworn testimony to the Senate in 1993. The Senate questionnaire that Ginsburg completed included this question:

Has anyone involved in the process of selecting you as a judicial nominee (including but not limited to a member of the White House staff, the Justice Department, or the Senate or its staff) discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such case, issue, or question? If so, please explain fully.

In response (see p. 108 of hearing record), Ginsburg wrote:

It is inappropriate, in my judgment, to seek from any nominee for judicial office assurance on how that individual would rule in a future case. That judgment was shared by those involved in the process of selecting me. No such person discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.

But Clinton has just stated publicly that he did discuss Roe with her precisely in order to get the assurances he needed on her position on abortion. And he has further stated that Ginsburg “knew this perfectly well.”

Mr. Whelan concludes, “Clinton sure seems to be saying that Ginsburg lied to the Senate.”

It’s hard to argue on Justice Ginsburg’s behalf if one believes that the witness reporting this alleged conversation is credible. But history gives ample reason for doubt. On Wednesday Mr. Clinton was talking about events early in his presidency but it’s worth noting a few of the events that occurred at the very end.

In early 2001 Mr. Clinton admitted that his own sworn testimony had been false when he was attempting to thwart a sexual harassment lawsuit filed against him by Paula Jones, an Arkansas state employee during his time as governor of the state.

In January of 2001 Neil Lewis reported in the New York Times:

Mr. Clinton today agreed to a settlement in which he will avoid the possibility of indictment in exchange for admitting that he gave false testimony under oath and agreeing to surrender his law license for five years…

Mr. Clinton also agreed to pay a fine of $25,000 to the Arkansas Bar Association, which had been considering whether to have him disbarred… In Pulaski County Court in Arkansas, where Mr. Clinton was facing a trial after he left office on charges by a bar committee over his fitness to practice law, a judge today approved the resolution of a five-year suspension of his law license.

CNN reported at the time:

In the end, Mr. Clinton paid $850,000 to settle the Jones case, a $90,000 fine for contempt of court for giving misleading testimony, the new $25,000 fine to settle the disbarment proceedings.

Justice Ginsburg deserves every benefit of the doubt in responding to the new Clinton claim.