In a speech yesterday at Southern Methodist University law school, Justice Ruth Bader Ginsburg offered a grim assessment of the judicial confirmations process. If she were nominated to the Supreme Court today, her background as a civil rights attorney would likely prevent her from being confirmed:
Ginsburg said that to practice for her Senate confirmation hearings, White House staffers in mock hearings grilled her on her work for the ACLU. During those mock hearings she told them: “There’s nothing you can do to get me to bad mouth the ACLU.”
Such grilling, though, did not happen, she said. She was confirmed 96–3.
“Today, my ACLU connection would probably disqualify me,” she said.
It’s worth noting exactly what kind of work Justice Ginsburg did for the ACLU before she was confirmed to the federal bench. As director of the ACLU’s Women’s Rights Project, Ginsburg was literally the single most important women’s rights attorney in American history. She authored the brief in Reed v. Reed that convinced a unanimous Supreme Court to hold for the very first time that the Constitution’s guarantee of Equal Protection applies to women. And her brief in Craig v. Boren convinced the Court to hand down its very first decision holding that gender discrimination laws are subject to heightened constitutional scrutiny. It is possible that modern doctrines preventing gender discrimination would simply not exist if Ruth Bader Ginsburg hadn’t done the work she did for the ACLU.
And yet, in today’s era of rampant right-wing filibusters, that alone would disqualify her for a seat on the federal bench.