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On the October 3 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly challenged guest John Flannery, former special counsel to the Senate Judiciary Committee, about his claim that we know very little about Harriet Miers, President Bush's nominee to replace Supreme Court Justice Sandra Day O'Connor, asking Flannery, "[W]hat about Ruth Bader Ginsburg, though? We didn't know anything about her when she got confirmed almost unanimously." But O'Reilly's assertion that the Senate had no more information when Ginsburg was nominated to the Supreme Court than is available on Miers is baseless.
Ginsburg had an extensive judicial record before being nominated to the Supreme Court in 1993, having spent 13 years on the U.S. Court of Appeals for the District of Columbia Circuit after her appointment in 1980 by President Carter. A review by the Legal Times showed Ginsburg sided more consistently with conservative judges such as Robert H. Bork, Laurence H. Silberman and Kenneth W. Starr than with the Democratic-appointed judges on the court, as Media Matters for America has noted.
In addition, a report by the American Constitutional Society titled "The Confirmation Hearings of Justice Ruth Bader Ginsburg: Answering Questions While Maintaining Judicial Impartiality" details Ginsburg's answers to questions on her judicial views on controversial legal issues such as substantive due process and the extent of First Amendment protections.
O'Reilly's comparison also understates the breadth of Ginsburg's Supreme Court confirmation hearings. Media Matters has previously noted that Ginsburg provided direct answers to questions concerning her views on abortion.
Flannery was appointed by then-Senate Judiciary Committee chairman Strom Thurmond (R-SC) as special counsel to investigate the 1981 confirmation hearings of Reagan labor secretary Raymond Donovan.
From the October 3 edition of Fox News' The O'Reilly Factor:
FLANNERY: No, no. I think that at the very least, when we talk about the constitutional reference between the president and the Senate, if you're going to ask someone to consent, you have to inform their consent. And if you know nothing about the nominee, how can you consent? It's not an informed exercise of discretion.
O'REILLY: Well, what about Ruth Bader Ginsburg, though? We didn't know anything about her when she got confirmed almost unanimously. The Republicans went along with President Clinton's vision.
FLANNERY: Well, I think that's a fair comparison, but if you look at Ruth Ginsburg and you look at Roberts, in both cases, we had some indication. Here, we've reduced to a new low. And one could criticize both of those nominations for the reasons you suggest.