EDITORIAL ON THE LEGACY OF RUTH BADER GINSBURG
https://www.nysun.com/editorials/ruth-bader-ginsburg/91263/
The death of Justice Ruth Bader Ginsburg, coming at the beginning of what her co-religionists call the Days of Awe, is a moment to lay aside the politics. The time for that will arrive soon enough. President Trump is signaling he’ll make a prompt nomination to replace the Supreme Court’s most liberal justice. Yet tonight we find ourselves thinking of what Ginsburg meant to millions of Americans, particularly young women.
To them, and not only them, she was an enormously inspiring role model — a fighter who, like, say, Justice Thurgood Marshall, pursued a great cause through the practice of law. Her cause was the rights of women themselves. And by sticking to it, she built historic career in the law that was capped with a seat on the highest bench in the land. No wonder America’s daughters, and sons, admire her and thrill to her triumphs.
We began covering her story in 1993, when, in a gathering in the Rose Garden, she was introduced by President Clinton as his nominee to replace Justice “Whizzer” White. He noted that she had argued before the Supreme Court six cases on behalf of women and won five of them. He pointedly likened her to Marshall. He predicted that she would be a unifying figure on the high bench. When she spoke, the President teared up.
At Ginsburg’s confirmation hearing, there was a remarkable moment. It came when Senator Carol Mosley Braun erupted angrily over something said by Senator Orrin Hatch in reference to the Dred Scott case. Ms. Braun demanded to speak on a point of personal privilege in her capacity as “the only descendent of a slave” in the hearing. Judge Ginsburg sat still, declining to correct the senator. We clapped our head in disbelief.
For Senators Metzenbaum, Feinstein, Cohen, and Specter were, among others present, either Jewish or descended from Jews, and the future justice herself was Jewish. So we thought she could have pointed out that every year, for three millennia, Jews have made a point of beginning the Passover Seder by remembering precisely that they were slaves in Egypt. It was not that we wanted to mark that Ms. Braun was wrong.
The point we’d wanted Ginsburg to have made is that she comprehended fully that slavery can mark a people for millennia — that it can never be forgotten. We thought it would have underscored Senator Braun’s fury and sketched a unifying view. Yet Ginsburg had just sat “quiet as a mushroom,” we once wrote, and let the moment pass. Soon enough we came to realize that she took the wiser course.
She got confirmed, after all, and by a vote of 96 to three. Yet it would be hard to describe the role Justice Ginsburg played once she was seated on the high bench as unifying. She proved to be a pedantic justice, tending to rule on narrow, legalistic terms (sometimes a great virtue). We came to see in her a truculence. It was glimpsed when she got, as we once put it, “lost in Egypt.” It was a reference to a television interview she gave in Cairo.
The local interviewer, in a thoughtful conversation, noted that Egypt was writing a new constitution and asked whether it should look to the constitutions of other countries as models. “I would not look to the U.S. constitution if I were drafting a constitution in the year 2012,” Justice Ginsburg said. She recommended the longer, more detailed bills of rights in the constitutions of Canada, South Africa, and Europe.
The answer shocked us down to the ground. Not because we doubted the Justice’s patriotism (not even for a moment). Rather, it was that the constitutions to which she was directing her interviewer gave positive rights, meaning that the constitutions granted them. Our Constitution rarely grants rights. It establishes negative rights, meaning prohibitions on government interfering with rights granted by God.
The idea that rights are man’s to give or deny helped, in our view, to tug Justice Ginsburg to the left edge of a court that the president who nominated her predicted she would lead from the center. Perhaps she thought of herself as holding the centrist view while the court moved right. Or it may be that she was radicalized by events. Or simply that it’s folly to try to forecast how a justice will evolve — something for all our leaders to remember as they try to fill her enormous shoes.
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