According to the New York Times, she first tackled the "problem" — cited by Chief Justice John Roberts at his confirmation hearing — that some justices use rulings from foreign judges when writing opinions. Reports the Times:
Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.
"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.
Apparently, someone forgot to tell her that America is the repository of all wisdom ever.
She also spoke about why it is that it's only in the last 50 years that many other countries instituted judiciaries that have the power to strike down legislation that makes it though the Democratic process.
"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."
Values, like, say, not torturing people and the importance of judicial process? It's a good warning that sometimes elected officials might use the legislative process to subvert that, I mean, we wouldn't want that to happen here.
She covered that, too:
"The police think that a suspect they have apprehended knows where and when a bomb is going to go off," she said, describing the question presented in the case. "Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.' "
The message of the decision, Justice Ginsburg said, was "that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity." Then she asked, "Now why should I not read that opinion and be affected by its tremendous persuasive value?"
"Because you're an American," is probably the answer to that.
Ginsburg also discussed her role in creating the term "gender discrimination," which is a forehead-slapper if I ever heard one.
She helped introduce the term "gender discrimination" as a synonym for " sex discrimination," she said, explaining that her secretary had proposed the idea while typing a brief to be submitted to male judges.
" ‘The first association of those men with the word "sex" is not what you're talking about,' " the secretary said, Justice Ginsburg recalled. " ‘Why don't you use a grammar-book term? Use gender. It has a neutral sound, and it will ward off distracting associations.' "
The Washington Post pointed out that is was in one of the most famous gender discrimination cases of late — the Lilly Ledbetter pay discrimination case — that Ginsburg threw up what she terms "a red flag."
Ginsburg, unlike some of her colleagues, often makes her case in public speeches. And, when she thinks her colleagues have misinterpreted a statute, she writes a dissent that on Friday she called a "red flag," essentially asking Congress to take action.
Her dissent in the court's 2007 decision that threw out an Alabama tire company manager's suit alleging discriminatory pay made Lilly Ledbetter a heroine on the left and led Congress to change the law, presenting Obama with his first major bill to sign.
In other words, she doesn't hide behind her robes.
Of course, she had trouble hiding behind her robes just a little bit.
"Now, there I am all alone, and it doesn't look right," Ginsburg said. She said she watches the number of women at each session of the Supreme Court bar, notices that four of the nine members of Canada's Supreme Court are women, including the chief justice, and sees the female reporters who cover the court.
"It's lonely for me. Not that I don't love all my colleagues. I do," Ginsburg said.
I guess we need just a little thought about gender discrimination on the court in addition to at the court.
Dahlia Lithwick, writing for Slate, thinks we need both.
But in an award-winning 2008 paper titled "Untangling the Causal Effects of Sex on Judging," Washington University's Christina L. Boyd and Andrew D. Martin and Northwestern School of Law's Lee Epstein suggest that women judges really are different. Surveying sex discrimination suits resolved by panels of judges in federal circuit courts between 1995 and 2002, the researchers examined whether male and female judges decide cases differently, and went on to look at whether the presence of a female on a panel of judges affects the behavior of her male colleagues.
Here's what they found: The male judges were 10 percent more likely to rule against alleged sex-discrimination victims. And male judges were "significantly more likely" to rule in their favor if a woman judge served on their panel.
And, Lithwick points out, it's not just conservatives, either.
History proves that you can be the most empathetic, open-minded, and sensitive jurist in all the world-and still be a complete dolt about gender. It's why liberal lion William Brennan could write so expansively about equality and fairness and justice while still refusing to hire female law clerks. It's why Ginsburg was denied a clerkship with the legendary judge Learned Hand. (He refused to hire her because he liked to use salty language.)
Oh, fuck that noise.
Lithwick finally points out that, if and when Obama does have an opportunity to appoint a Supreme Court justice, he'll have plenty of women to choose from.
When it comes time for Obama to appoint a new justice, he'll have an embarrassment of female talent to choose from: To name just a very few, potential candidates include appeals court judges like Diane Wood, Sonia Sotomayor, Kim McLane Wardlaw; his new solicitor general, Elena Kagan; gifted academics such as Stanford Law School's Kathleen Sullivan and Pamela Karlan; Michigan Gov. Jennifer Granholm; and private attorneys like Teresa Wynn Roseborough.
An embarrassment, that is, because Ginsburg is currently the sole woman on the Court despite that kind of legal talent on both sides of the aisle.
Ginsburg Shares Views On Influence Of Foreign Law On Her Court, And Vice Versa [NY Times]
Ginsburg Gives No Hint Of Giving Up The Bench [Washington Post]
The Fairer Sex [Slate]