In an apparent effort to set out what they think the standard ought to be for President Bush's first Supreme Court appointment, conservatives are falsely arguing that Justice Ruth Bader Ginsburg is an extremist who nonetheless sailed through the Senate without rigorous questioning. Fox News host Tony Snow miscast Ginsburg as "the most liberal justice in American history." And in an example of a false claim that the media ought to be on the alert to correct, Sen. John Cornyn (R-TX) stated that Ginsburg had not been questioned about a prior writing during her confirmation hearing, when in fact she was asked about it.
Snow claimed that Ginsburg is "most liberal justice in American history"
Snow, guest-hosting the July 1 edition of Fox News' The O'Reilly Factor, claimed -- without any evidence or explanation -- that Ginsburg is the "most liberal justice in American history." But an analysis of voting patterns in the Supreme Court, published in the July 2 New York Times, suggests that Justice John Paul Stevens may, in fact, be more liberal than Ginsburg. The analysis examined every non-unanimous Supreme Court decision from the 1994-95 term through the 2003-04 term to determine how often each justice voted with the other members of the court.
Justices Antonin Scalia and Clarence Thomas agreed on the highest percentage of decisions (79 percent); the two justices that agreed on the lowest percentage of decisions (14 percent) were Scalia and Stevens. Ginsburg actually agreed with Scalia -- among the most conservative members of the court -- on more occasions (28 percent) than did Stevens or Justice Stephen G. Breyer (25 percent).
Cornyn made a false claim regarding Ginsburg's 1993 confirmation hearing
On the July 3 edition of ABC's This Week with George Stephanopoulos, Cornyn misrepresented facts surrounding Ginsburg's 1993 confirmation hearing by claiming that Ginsburg "wasn't asked about her earlier writing about whether laws banning prostitution were unconstitutional":
CORNYN: Ruth Bader Ginsburg was the general counsel for the American Civil Liberties Union, yet she was overwhelmingly confirmed. She wasn't asked about her earlier writing about whether laws banning prostitution were unconstitutional. So I hope that this is a dignified process and we're not asking nominees to take -- to make decisions on how they would decide a case if it were presented.
In fact, during Ginsburg's July 22, 1993, confirmation hearing, then-ranking minority member of the Senate Judiciary Committee Sen. Orrin Hatch (R-UT) addressed her 1974 report regarding the constitutionality of laws banning prostitution:
HATCH: When we have the right in judges to just -- through substantive due process, to just decide cases based upon their own ideas of what is right and wrong rather than what is in the Constitution or is in the statute, we've run into these difficulties. And you know, I would just -- with regard to the generalized constitutional right to privacy, does it encompass the following activities or does it not? Let me just give you one illustration. Some people believe in a right to privacy that would allow almost anything, say, prostitution. Let me note that in 1974, in a report to the United States Civil Rights Commission, you wrote, Judge, quote, "Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions," unquote. That's in "The Legal Status of Women Under Federal Law," page -- in 1972 I believe. You were citing Griswold [v. Connecticut], Eisenstadt [v. Baird], and Roe v. Wade. You could push it further. How about marijuana use in one's own home? Is that a right to privacy that we should --
GINSBURG: I said "arguably." I said it has been argued.
HATCH: I know you were --
GINSBURG: I did not say --
HATCH: You were making an academic point. I understand. I'm not trying to indicate that you were justifying prostitution. But the point is some people believe this right of privacy is so broad you can almost justify anything. Does it justify marijuana use in one's own home? Does it justify physician-assisted suicide? Does it justify euthanasia? Does it justify homosexual marriage, that some people think should happen and shouldn't happen? Does it justify infanticide of newborn children with birth defects? And I use these examples in this hearing not to offer my own views on any of these subjects, on whether or not they should be protected conduct; but it's my point that people who believe such conduct should be protected must under the functioning of our system turn to the legislatures and not to the federal courts to determine whether or not they should be protected. And the point is that under an amorphous constitutional right of privacy, whether or not conduct is protected does not depend on any neutral principle of adjudication but on the subjective predilection of the judge deciding the case, and that is not the rule of law, that's government by judiciary.