Fox News host Sean Hannity repeated the false claim that Supreme Court Justice Ruth Bader Ginsburg had supported both “legalized prostitution” and lowering “the age of consent to 12” prior to her 1993 confirmation hearing. A 1974 report co-authored by Ginsburg did address the constitutionality of prohibitions on prostitution and did refer to legislation that set the age of consent at 12 years. But Ginsburg did not assert a position on either issue, as Media Matters for America previously noted in response to a nearly identical claim made by Wall Street Journal columnist Manuel Miranda.
During an interview with Sen. John McCain (R-AZ) on the October 31 edition of Fox News' Hannity & Colmes, Hannity brought up what he called the “Ginsburg rule” -- commonly known as the “Ginsburg precedent.” This is the deceptive argument -- hatched shortly after the nomination of Chief Justice John G. Roberts Jr. -- that Senate Republicans responded to Ginsburg's 1993 nomination by putting aside their ideological differences and not requiring her to answer questions that would signal how she would decide future cases, thereby establishing a precedent for the opposition party's handling of future Supreme Court nominees. Hannity went on to detail Ginsburg's “very left-wing” record:
HANNITY: I guess where I am on this, if you look at Ruth Bader Ginsburg, I mean, she -- the Ginsburg rule, she doesn't have to answer specific questions, clearly pro-choice going in, thinks there may even be a constitutional right to polygamy, has a controversial view we should lower the age of consent to 12, supports legalized prostitution, very left-wing.
But Hannity's claims regarding Ginsburg's views on prostitution and the age of consent rely on a distorted reading of her 1974 report titled "The Legal Status of Women Under Federal Law." On the issue of prostitution, the report read: “Prostitution as a consensual act between adults is arguably within the zone of privacy protected by recent constitutional decisions.” While Hannity and Miranda have misconstrued this sentence as an argument in favor of constitutional protection for prostitution, Ginsburg was merely stating that an argument could be made that such activity is protected by the Constitution. Indeed, during her 1993 confirmation hearing, when Sen. Orrin Hatch (R-UT) noted this passage, Ginsburg highlighted the presence of the term “arguably.” Hatch went on to concede that the sentence could not be construed as a stated position: “You were making an academic point. I understand. I'm not trying to indicate that you were justifying prostitution.”
The claim that Ginsburg put forth the “controversial view we should lower the age of consent to 12” is also false. In a section of the 1974 report objecting to the “traditional sex discriminatory fashion” in which the United States Code defined rape, Ginsburg cited a 1973 Senate bill as an example of legislation that better “conform[ed] to the equality principle.” One of the three circumstances that the bill established as constituting rape read as follows: “the other person is, in fact, less than twelve years old.” But Ginsburg was noting with approval only the measure's gender-neutral language; she never directly addressed the clause regarding “age of consent.” In a September 16 column taking issue with this particular criticism of Ginsburg, Slate.com's Timothy Noah wrote: “What, then, is Ruth Bader Ginsburg's true crime? In discussing how to rewrite the federal law addressing statutory rape, Ginsburg failed to state an opinion about what the age of consent should be.”