Carol Platt Liebau: The "Ruth Marcus" Fallacy

Tuesday, November 15, 2005

The "Ruth Marcus" Fallacy

Here, Ruth Marcus of The Washington Post tries to rewrite history in a piece called "The Ginsburg Fallacy." She claims that Ruth Bader Ginsburg was effectively a bipartisan consensus pick pushed by Republicans for the Supreme Court -- and that "Ginsburg [is not] to liberal as Alito is to conservative."

Wrong. In support of her "consensus pick" theory, Marcus cites only . . . Orin Hatch. And the fact that Orin Hatch "pre-approved" RBG doesn't mean that he agreed with her; the fact is that Republicans haven't made pro-Roe views a disqualifying factor in considering Supreme Court nominations as Democrats have made anti-Roe views.

More importantly -- I was a Senate staffer at the time, in charge of nominations for the senator for whom I worked. And Marcus is just incorrect in suggesting that Republicans were relatively complacent about the nomination. They weren't. Almost every Republican senator knew what RBG stood for, knew how she would vote on the Court (as she has -- consistently with the left), and was unhappy about it.

In fact, some young Senate staffers :) wanted to launch a fight against the nomination. But we were told point-blank that the Republican senators simply weren't going to let it happen: The President was entitled to his picks -- even if we were adamantly opposed to all they stood for -- so long as they were within the relatively wide goalposts of American judicial thought, left or right, and had no ethical or temperament problems.

That, Ms. Marcus, is the real story of how RBG got on the Supreme Court. And when Marcus writes: "Either those peddling this conveniently muddled version of events don't remember it correctly or they are betting that others won't" -- well, she is actually describing herself, whether she means to or not.

Update: Marcus disingenuously cites the following statistic: "According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats." As a preliminary matter, that's one year -- out of the twelve that Ginsburg spent on the DC Circuit (1981-1993). Moreover, speaking as a former clerk on the D.C. Circuit, although it handles veryimportant and sometimes complex matters, many of the cases have to do with arcane administrative law matters, which don't necessarily implicate a judge's ideology. So even if, for one year, RBG agreed more with the Republican appointees than the Democrats, that proves little -- and don't think that the Republican senators wouldn't have known that.


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