Wash. Post still confused about judicial activism and ideology in Supreme Court debate


One day after mischaracterizing a statement by Sen. Ben Nelson (D-NE) to falsely report that "key members of the group" that reached the bipartisan Senate agreement on judicial filibusters in May believe that the agreement forbids filibusters based on a nominee's ideological views, The Washington Post again misrepresented Nelson, falsely contrasting him with other Democrats who have spoken about whether ideology can constitute the "extraordinary circumstances" necessary to justify a filibuster under the six-week-old deal.

Post staff writers Peter Baker and Charles Babington also quoted White House senior adviser Karl Rove's misleading claim that Justice Ruth Bader Ginsburg was perceived as a "liberal" in 1993, but failed to challenge Rove, despite the Post's own reporting at the time that Ginsburg's voting record on the D.C. Circuit Court of Appeals was similar to conservatives Kenneth W. Starr and Laurence H. Silberman. Baker and Babington also reported without correction Rove's misleading claim that Ginsburg did not answer questions from senators about how she would rule on particular issues, including abortion. In fact, Ginsburg made her views on a constitutional right to abortion clear during her confirmation hearings.

In their July 6 article, titled "Are a Nominee's Views Fair Game?" Baker and Babington suggested that Nelson differs from other Senate Democrats in that "judicial activism concerns him more than ideology." In fact, the quotes by Nelson and Sen. Mary Landrieu (D-LA) express nearly identical positions on the relevance of ideology to confirmation -- that ideology constitutes an "extraordinary circumstance" when a nominee allows that ideology, rather than the law, to control his or her rulings:

Sen. Mary Landrieu (D-La.), one of the 14 who fashioned the agreement, said through a spokesman: "A nominee's political ideology is only relevant if it has been shown to cloud their interpretation of the law. ... A pattern of irresponsible judgment, where decisions are based on ideology rather than the law, could potentially be 'extraordinary.' "


Sen. Ben Nelson (D-Neb.), however, said judicial activism concerns him more than ideology. "Are they going to be an activist?" Nelson asked rhetorically in discussing what might cause him to filibuster a Supreme Court nominee. "Their political philosophy may not bother me at all if they're not going to be an activist."

Two other Democrats quoted in the article made statements about "extraordinary circumstances" that were fully consistent with Nelson and Landrieu:

"In my mind, extraordinary circumstances would include not only extraordinary personal behavior but also extraordinary ideological positions," said Sen. Joseph I. Lieberman (D-Conn.), a moderate the White House has been hoping to enlist to give bipartisan backing to the nominee.


Sen. Ken Salazar (Colo.) rejected Republican assertions that he and other Democratic signers must accept a nominee as conservative as Janice Rogers Brown, now confirmed to a seat on the U.S. Court of Appeals for the District of Columbia Circuit, because the agreement allowed her confirmation. "It didn't set a standard" for Supreme Court confirmations, Salazar said. "We would leave it up to each person to define what extraordinary circumstance means."

The Post also quoted Rove claiming that during Ginsburg's confirmation, "[m]any Republicans strongly disagreed with her liberal views and the record she compiled as a top lawyer for the American Civil Liberties Union ... but she was overwhelmingly approved, 96 to 3." The Post did not rebut Rove even though, as Daily Howler editor Bob Somerby has documented, a June 15, 1993, front-page Post report predicted that Ginsburg would be in line with other "centrist-conservatives" on the Supreme Court and cited a study indicating that while on the D.C. Circuit, she had "sided more with Republican-appointed colleagues" such as Starr and Silberman than with Democrats:

If Judge Ruth Bader Ginsburg becomes a Supreme Court justice, the court will belong to the center.

Ginsburg, 60, has straddled the liberal-conservative divide of the D.C. Court of Appeals for the last 13 years. And while she would come to the court with more "liberal" leanings than retiring Justice Byron R. White, her record is a far cry from the traditional activism of retired Justice William J. Brennan Jr. and the late Justice Thurgood Marshall.

Ginsburg has a pragmatic, non-ideological approach that likely would put her most in league with Justices David H. Souter and Sandra Day O'Connor. Those centrist-conservatives, joined on occasion by Anthony M. Kennedy and John Paul Stevens, have controlled the outcome of some of the most fractious cases in recent terms.


On the D.C. Court of Appeals, to which she was appointed by President Jimmy Carter in 1980, she has become a swing vote. A 1988 computer study by Legal Times newspaper found that she had sided more with Republican-appointed colleagues than Democratic counterparts. In cases that were not unanimous, she voted most often with then-Judge Kenneth W. Starr, who became George Bush's solicitor general, and Laurence H. Silberman, a Reagan appointee still on the court.

Additionally, the Post neglected to mention another possible reason that Ginsburg was approved with strong Republican support. Sen. Orrin Hatch (R-UT) wrote in his 2002 autobiography, Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), that he suggested that President Bill Clinton nominate Ginsburg:

I asked whether he [Clinton] had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg [sic].

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

The Post also let Rove cite the Ginsburg nomination as evidence that it is inappropriate to ask a prospective nominee how he or she would vote on issues "such as how they would rule on abortion." But while broad consensus exists that nominees should not be asked about specific cases that they might hear as justices, Ginsburg did answer questions from senators about the right to abortion, first established in the 1973 case of Roe v. Wade.

When then-Sen. Hank Brown (R-CO) asked Ginsburg on July 21, 1993, about a lecture in which she suggested that the 14th Amendment's equal protection clause might better protect a woman's right to abortion than the privacy rights invoked in Roe, Ginsburg stated:

[The right to an abortion] is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.

Posted In
Government, Nominations & Appointments, The Judiciary
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