Emily Bazelon got the chance to do something many of us would like to — sit down and talk to Supreme Court Justice Ruth Bader Ginsburg (for the upcoming issue of the NY Times Magazine). Pure awesomeness, naturally, followed.
Bazelon's interview — which reads more like a fascinating conversation than a boring profile or Q&A — jumps all over the map from Roe v. Wade to Sonia Sotomayor and what women bring to the court, the bench and public discourse. She's also really stoked about the number of women on the Canadian Supreme Court (where the Chief Justice is also a woman), but blames the difference, too kindly, on the low attrition rate on the American one and not on the fact that dudes keep getting replaced with dudes.
Bazelon asks Ginsburg about the two main criticisms leveled at Sotomayor: her supposed abrasiveness on the bench; and the "wise Latina" comment. Ginsburg dismisses the latter as a combination of imperfect speech and an acknowledgment that judges do bring their own experiences to the table. On the former, though, she's got a story of her own.
Once Justice O'Connor was questioning counsel at oral argument. I thought she was done, so I asked a question, and Sandra said: Just a minute, I'm not finished. So I apologized to her and she said, It's O.K., Ruth. The guys do it to each other all the time, they step on each other's questions. And then there appeared an item in USA Today, and the headline was something like"Rude Ruth Interrupts Sandra."
Just the thought of someone calling her "rude" is kind of upsettingly hilarious, but it also does point to the way sexism manifests itself in terms of how women are expected to behave.
Ginsburg also takes on the idea that Sotomayor, as a beneficiary of affirmative action, is thus unqualified for the bench (and provides an interesting history lesson about affirmative action).
Q: What do you think about Judge Sotomayor's frank remarks that she is a product of affirmative action?
JUSTICE GINSBURG: So am I. I was the first tenured woman at Columbia. That was 1972, every law school was looking for its woman. Why? Because Stan Pottinger, who was then head of the office for civil rights of the Department of Health, Education and Welfare, was enforcing the Nixon government contract program. Every university had a contract, and Stan Pottinger would go around and ask, How are you doing on your affirmative-action plan? William McGill, who was then the president of Columbia, was asked by a reporter: How is Columbia doing with its affirmative action? He said, It's no mistake that the two most recent appointments to the law school are a woman and an African-American man.
Q: And was that you?
JUSTICE GINSBURG: I was the woman. I never would have gotten that invitation from Columbia without the push from the Nixon administration. I understand that there is a thought that people will point to the affirmative-action baby and say she couldn't have made it if she were judged solely on the merits. But when I got to Columbia I was well regarded by my colleagues even though they certainly disagreed with many of the positions that I was taking.
How many Republican Congressmen do you think know that Ginsburg got where she did because of the efforts of the Nixon Administration to force universities to implement affirmative action?
One thing Ginsburg is somewhat less enthusiastic about than Sotomayor is the idea of women's-only associations and groups.
I always thought that there was nothing an antifeminist would want more than to have women only in women's organizations, in their own little corner empathizing with each other and not touching a man's world. If you're going to change things, you have to be with the people who hold the levers.
It's an interesting counterpoint to both all-female networking groups and, more implicitly, to same-sex education.
She's also fairly resistant to the idea that women inherently judge differently than men and encourage all men to judge differently, which tends to be code for "more liberally."
I'm very doubtful about those kinds of [results]. I certainly know that there are women in federal courts with whom I disagree just as strongly as I disagree with any man. I guess I have some resistance to that kind of survey because it's what I was arguing against in the '70s. Like in Mozart's opera "Così Fan Tutte": that's the way women are.
The idea that women are generally more liberal or empathetic than men and encourage men to be so does seem relatively rooted in gendered stereotypes that are harmful to women's progress.
An interesting thing that comes up in the discussion of the recent ruling in favor of the reverse-discrimination case among firefighters in New Haven is Ginsburg's assertion that unions have been the source of a great deal of gender discrimination.
I don't know how many cases there were, Title VII civil rights cases, where unions were responsible. The very first week that I was at Columbia, Jan Goodman, a lawyer in New York, called me and said, Do you know that Columbia has given layoff notices to 25 maids and not a single janitor? Columbia's defense was the union contract, which was set up so that every maid would have to go before the newly hired janitor would get a layoff notice.
By the way, the AFL-CIO is poised to elect Elizabeth Shuler treasurer-secretary — which would make her the highest ranking woman in its history. One assumes that having more women in leadership roles in unions could make a difference in men's ability to collectively bargain away women's jobs.
And, of course, Bazelon and Ginsburg get into abortion rights, which Bazelon argues — and Ginsburg agrees — may eventually become rooted in constitutional law about equal rights rather than the right to privacy. Ginsburg also thinks it's becoming more and more of an issue of economic discrimination.
Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don't know why this hasn't been said more often.
She's also not keen on abortion restrictions, like waiting periods, that pass the Court's "undue burden" test even when they are.
In the interview, which lasted 90 minutes, Ginsburg comes across as sharp, funny and completely as awesome of you'd hope she'd be. More, please?
The Place of Women on the Court [New York Times]
Related: Woman to Seek High Labor Post [New York Times]