The Nine [38]
At the time of the Clinton presidency, Ginsburg led a cosseted life in her apartment at the Watergate, but her voice still bore traces of her hardscrabble upbringing in Brooklyn. Ruth Bader’s sister died in childhood, and she lost her mother to cancer when she was seventeen, the day before she graduated from high school. She went to Cornell, where she met her husband, Martin, and they both went on to Harvard Law School, where she was one of nine women in a class of more than five hundred students. There, shortly after the birth of their daughter, Martin was struck by testicular cancer. Through his long and difficult treatment, Ruth cared simultaneously for him and their child, attended class and took notes for both of them, typed his papers, and made law review herself. Perhaps as a consequence, in later years Ginsburg had less sympathy than some judges for complaints of overwork from her clerks.
Martin and Ruth Ginsburg settled in New York, where Martin practiced tax law and Ruth began a career teaching law, first at Rutgers and then, in 1972, as the first tenured woman at Columbia. She joined the American Civil Liberties Union and led its early efforts in what was then known as the women’s liberation movement. Ginsburg was hardly a radical, and she became famous for canny strategy by litigation jujitsu. Her goal, of course, was to end the discrimination that was then pervasive against women, but she needed a way to dramatize the issue in front of judges who were invariably male.
So Ginsburg looked for cases where laws reflecting gender stereotypes actually penalized men, not women. In one, husbands of military officers had to prove that they were “dependent” spouses to receive certain benefits. In another, Oklahoma law allowed young women between the ages of eighteen and twenty to buy near beer, while men of the same age could not. The Supreme Court struck down the provisions in both cases, ruling that laws could not survive if they were based solely on stereotypes and assumptions about gender differences. These cases, which nominally benefited men, led to the downfall of many more laws that penalized women. In all, Ginsburg won five out of the six cases she argued before the justices. In 1980, President Carter named her to the D.C. Circuit, the second most important court in the nation.
In light of this background—and Clinton’s commitment to diversity on the bench—it is surprising that Ginsburg’s name came to the fore so late in the process. She had been on Klain and Dellinger’s original list of fifty, but Ginsburg’s tenure on the court of appeals had earned her some skepticism among the more liberal members of the administration. Ginsburg had been a moderate-to-conservative judge, especially on criminal matters, and she often found herself aligned with one-time colleagues Robert Bork and Antonin Scalia. (Scalia and Ginsburg struck up a friendship on the appeals court, based in part on their shared love of opera, and their families celebrated New Year’s Eve together for many years.) In her academic writing, Ginsburg had even criticized Roe v. Wade, which won her even greater suspicion.
But Clinton was intrigued when Klain came back with Reno’s endorsement of Ginsburg. “Pat Moynihan has been calling me every day saying we should nominate her,” Clinton said. That Moynihan, a New York Democrat, was also chairman of the Senate Finance Committee, which had primary jurisdiction over Clinton’s health care plan, made a gesture to him doubly appealing. Nussbaum added that he had been similarly lobbied by Marty Ginsburg, an old friend of his from New York legal circles, who was as voluble as his wife was reserved. (It was no coincidence that the first two women on the Supreme Court were both married to successful lawyers who were secure in their own careers and enthusiastic backers of their wives’ ambitions.)
Klain had one caution for Clinton—Ginsburg’s position on Roe. “She’s not where most of the groups are on the issue,” he said. With the Guinier nomination, Clinton