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TESTIMONY RE: RUTH BADER GINSBURG
by: Susan Hirschmann, Executive Director
Eagle Forum
To the Senate Judiciary Committee
July 23, 1993
Ruth Bader Ginsburg's writings show her to be a radical,
doctrinaire feminist, far out of the mainstream. She shares the
chip-on-the-shoulder, radical feminist view that American women
have endured centuries of oppression and mistreatment from men.
That's why, in her legal writings, she self-identifies with
feminist Sarah Grimke's statement, "All I ask of our brethren is
that they take their feet off our necks," and with feminist
Simone de Beauvoir's put-down of women as "the second sex." (De
Beauvoir's most famous guote is, "Marriage is an obscene
bourgeois institution.")
A typical feminist. Ruth Bader Ginsbura wants affirmative
action quota hiring for career women but at the same time wants
to wipe out the special rights that state laws traditionally gave
to wives. In a speech published by the Phi Beta Kappa Kev
Reporter in 1974, Ginsburg called for affirmative action hiring
quotas for career women, using the police as an example in point.
She said, "Affirmative action is called for in this situation."
On the other hand, she considered it a setback for "women's
rights" when the Supreme Court, in Kahn v. Shevin (1974), upheld
a Florida property tax exemption for widows. Ginsburg disdains
what she calls "traditional sex roles" and demands strict gender
neutrality (except, of course, for quota hiring of career women).
Ginsburg's real claim to her status as the premier feminist
lawyer is her success in winning the 1973 Supreme Court case
Frontiero v. Richardson, which she unabashedly praised as an
"activist" decision. She obviously shares the view of Justice
William Brennan's opinion that American men, "in practical
effect, put women, not on a pedestal, but in a cage," and that
"throughout much of the 19th century the position of women in our
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society was, in many respects, comparable to that of blacks under
the pre-Civil War slave codes."
Anyone who thinks that American women in the 19th century
were treated like slaves, and in the 20th century were kept in a
"cage," has a world view that is downright dangerous to have on
the U.S. Supreme Court. She's another Brennan, and no
conservative should vote to confirm her.
Of course, Ginsburg passed President Clinton's selfproclaimed
litmus test for appointment to the Supreme Court — she
is "pro-choice." But that's not all; she wants to write taxpayer
funding of abortions into the U.S. Constitution, something that
72% of Americans oppose and even the pro-abortion, pro-Roe v.
Wade Supreme Court refused to do.
It has been considered settled law since the Supreme Court
decisions in a trilogy of cases in 1977 fBeal v. Doe. Maher v.
Roe, and Poelker v. Doe) that the Constitution does not compel
states to pay for abortions. These cases were followed by the
1980 Supreme Court decision of Harris v. McRae upholding the Hyde
Amendment's ban on spending federal taxpayers' money for
abortions. The Court ruled that "it simply does not follow that
a woman's freedom of choice [to have an abortion] carries with it
a constitutional entitlement to the financial resources to avail
herself of the full range of protected choices."
Ginsburg has planted herself firmly in opposition to this
settled law. In a 1980 book entitled Constitutional Government
in America. Judge Ginsburg wrote a chapter endorsing taxpayer
funding of abortions as a constitutional right and condemning the
high Court's rulings.
"This was the year the women lost," Ginsburg wrote in her
analysis of the 1977 cases. "Most unsettling of the losses are
the decisions on access by the poor to elective abortions."
Criticizing the 6-to-3 majority in the funding cases, Ginsburg
asserted that "restrictions on public funding and access to
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public hospitals for poor women" were a retreat from Roe v. Wade,
as well as a "stunning curtailment" of women's rights.
The phony "concern" expressed by pro-abortion lobbyists like
Kate Michelman is just a smokescreen. Ginsburg's article
criticizing Roe v. Wade, which has received some attention since
her nomination, merely complained that the Court didn't adopt the
"women's equality" theory that she had personally developed in
the 1970s. Ginsburg's article was not a legal criticism, but a
political one: if the Court had been less categorical in its Roe
language, she said, it would not have provoked the "wellorganized
and vocal right-to-life movement." Ginsburg preferred
to legalize abortion with arcane and obtuse legal gobbledegook
that didn't agitate the grassroots.
Feminists Want to Change Our Laws
Ruth Bader Ginsburg is a longtime advocate of the extremist
feminist notion that any differentiation whatsoever on account of
gender should be unconstitutional. Her radical views are made
clear in a book called Sex Bias in the U.S. Code, which she coauthored
in 1977 with another feminist, Brenda Feigen-Fasteau,
for which they were paid with federal funds under Contract No.
CR3AK010.
Sex Bias in the U.S. Code, published by the U.S. Commission
on Civil Rights, was the source of the claim widely made in the
1970s that 800 federal laws "discriminated" on account of sex.
The 230-page book was written to identify those laws and to
recommend the specific changes demanded by the feminist movement
in order to conform to the "equality principle" and promote
ratification of the Equal Rights Amendment, for which Ginsburg
was a fervent advocate. (The ERA died in 1982.)
Sex Bias in the U.S. Code is a handbook which shows how the
feminists want to change our laws, our institutions and our
attitudes, and convert America into a "gender-free" society. It
clearly shows that the feminists are not trying to redress any
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legitimate grievances women might have, but want to change human
nature, social mores, and relationships between men and women —
and want to do that by changing our laws. Despite the noisy
complaints of the feminists about the oppression of women, a
combing of federal laws by Ruth Bader Ginsburg, then a Columbia
University Law School professor, and her staff under a federal
grant of tax dollars, unearthed no federal laws that harm women!
The feminists' complaints about "discriminatory laws" are either
ridiculous or offensive.
Here are some of the extremist feminist concepts from the
Ginsburg book, Sex Bias in the U.S. Code:
. . . in the Military
1. Women must be drafted when men are drafted.
"Supporters of the equal rights principle firmly reject
draft or combat exemption for women, as Congress did when it
refused to qualify the Equal Rights Amendment by incorporating
any military service exemption. The equal rights principle
implies that women must be subject to the draft if men are, that
military assignments must be made on the basis of individual
capacity rather than sex." (p. 218)
"Equal rights and responsibilities for men and women implies
that women must be subject to draft registration ... " (p. 202)
2. Women must be assigned to military combat duty.
"Until the combat exclusion for women is eliminated, women
who choose to pursue a career in the military will continue to be
held back by restrictions unrelated to their individual
abilities. Implementation of the equal rights principle requires
a unitary system of appointment, assignment, promotion,
discharge, and retirement, a system that cannot be founded on a
combat exclusion for women." (p. 26)
3. Affirmative action must be applied for women in the armed
services.
"The need for affirmative action and for transition measures
is particularly strong in the uniformed services." (p. 218)
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. . . in Moral Standards
1. The age of consent for sexual acts must be lowered to 12
years old.
"Eliminate the phrase 'carnal knowledge of any female, not
his wife, who has not attained the age of 16 years' and
substitute a federal, sex-neutral definition of the offense. . .
A person is guilty of an offense if he engages in a sexual act
with another person, . . . [and] the other person is, in fact,
less than 12 years old." (p. 102)
2. Bigamists must have special privileges that other felons
don't have.
"This section restricts certain rights, including the right
to vote or hold office, of bigamists, persons *cohabiting with
more than one woman,' and women cohabiting with a bigamist.
Apart from the male/female differentials, the provision is of
questionable constitutionality since it appears to encroach
impermissibly upon private relationships." (pp. 195-196)
3. Prostitution must be legalized: it is not sufficient to
change the law to sex-neutral language.
"Prostitution proscriptions are subject to several
constitutional and policy objections. Prostitution, as a
consensual act between adults, is arguably within the zone of
privacy protected by recent constitutional decisions." (p. 97)
"Retaining prostitution business as a crime in a criminal
code is open to debate. Reliable studies indicate that
prostitution is not a major factor in the spread of venereal
disease, and that prostitution plays a small and declining role
in organized crime operations." (p. 99)
"Current provisions dealing with statutory rape, rape, and
prostitution are discriminatory on their face. . . . There is a
growing national movement recommending unqualified
decriminalization [of prostitution] as sound policy, implementing
equal rights and individual privacy principles." (pp. 215-216)
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4. The Mann Act must be repealed; women should not be protected
from "bad" men.
"The Mann Act . . . prohibits the transportation of women
and girls for prostitution, debauchery, or any other immoral
purpose. The act poses the invasion of privacy issue in an acute
form. The Mann Act also is offensive because of the image of
women it perpetuates. .. . It was meant to protect from
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villainous interstate and international traffic in women and
girls,' *those women and girls who, if given a fair chance,
would, in all human probability, have been good wives and mothers
and useful citizens. . . . The act was meant to protect weak
-women from bad men." (pp. 98-99)
5. Prisons and reformatories must be sex-integrated.
"If the grand design of such institutions is to prepare
inmates for return to the community as persons equipped to
benefit from and contribute to civil society, then perpetuation
of single-sex institutions should be rejected. .. . 18 U.S.C.
§4082, ordering the Attorney General to commit convicted
offenders to *available suitable, and appropriate' institutions,
is not sex discriminatory on its face. It should not be applied
. . . to permit consideration of a person's gender as a factor
making a particular institution appropriate or suitable for that
person." (p. 101)
6. In the merchant marine, provisions for passenger
accommodations must be sex-neutralized, and women may not
have more bathrooms than men.
"46 U.S.C. §152 establishes different regulations for male
and female occupancy of double berths, confines male passengers
without wives to the * forepart' of the vessel, and segregates
unmarried females in a separate and closed compartment. 46
U.S.C. §153 requires provision of a bathroom for every 100 male
passengers for their exclusive use and one for every 50 female
passengers for the exclusive use of females and young children."
(P- 190)
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"46 U.S.C. §152 might be changed to allow double occupancy
by two ^consenting adults.' . . . Requirements for separate
bathroom facilities stipulated in Section 153 should be retained
but equalized so that the ratio of persons to facility is not
sex-determined." (p. 192)
. . . in Education
1. Sinale-sex schools and colleges, and sinale-sex school and
college activities must be sex-integrated.
"The equal rights principle looks toward a world in which
men and women function as full and equal partners, with
artificial barriers removed and opportunity unaffected by a
person's gender. Preparation for such a world requires
elimination of sex separation in all public institutions where
education and training occur." (p. 101)
2. All-boys' and all-girls' organizations must be sexintegrated
because separate-but-equal organizations
perpetuate stereotyped sex roles.
"Societies established by Congress to aid and educate young
people on their way to adulthood should be geared toward a world
in which equal opportunity for men and women is a fundamental
principle. The educational purpose would be served best by
immediately extending membership to both sexes in a single
organization." (pp. 219-220)
3. Fraternities and sororities must be sex-integrated.
"Replace college fraternity and sorority chapters with
college
'social societies.'" (p. 169)
4. The Boy Scouts, the Girl Scouts, and other Congressionallvchartered
youth organizations, must change their names and
their purposes and become sex-integrated.
"Six organizations, which restrict membership to one sex,
furnish educational, financial, social and other assistance to
their young members. These include the Boy Scouts, the Girl
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Scouts, Future Farmers of America . . . , Boys' Clubs of America
. . ., Big Brothers of America . . . , and the Naval Sea Cadets
Corps. . . . The Boy Scouts and Girl Scouts, while ostensibly
providing *separate but equal' benefits to both sexes, perpetuate
stereotyped sex roles to the extent that they carry out
congressionally-mandated purposes. 36 U.S.C. §23 defines the
purpose of the Boy Scouts as the promotion of '. . . the ability
of boys to do things for themselves and others, to train them in
scoutcraft, and to teach them patriotism, courage, self-reliance,
and kindred virtues. . . .' The purpose of the Girl Scouts, on
the other hand, is
 x. . .to promote the qualities of truth,
loyalty, helpfulness, friendliness, courtesy, purity, kindness,
obedience, cheerfulness, thriftiness, and kindred virtues among
girls, as a preparation for their responsibilities in the home
and for service to the community. . . ' (36 U.S.C. §33.)" (pp.
145-146)
"Organizations that bestow material benefits on their
members should consider a name change to reflect extension of
membership to both sexes . . . [and] should be revised to conform
to these changes. Review of the purposes and activities of all
these clubs should be undertaken to determine whether they
perpetuate sex-role stereotypes." (pp. 147-148)
5. The 4-H Bovs and Girls Clubs must be sex-integrated into 4-H
Youth Clubs.
"Change in the proper name M-H Boys and Girls Clubs' should
reflect consolidation of the clubs to eliminate sex segregation,
e.g., M-H-Youth Clubs.'" (p. 138)
6- Men and women should be required to salute the flag in the
same wav.
"Differences [between men and women] in the authorized
method of saluting the flag should be eliminated in 36 U.S.C.
§177." (p. 148)
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. . . in the Family
1. The traditional family concept of husband as breadwinner and
wife as homemaker must be eliminated.
"Congress and the President should direct their attention to
the concept that pervades the Code: that the adult world is (and
should be) divided into two classes — independent men, whose
primary responsibility is to win bread for a family, and
dependent women, whose primary responsibility is to care for
children and household. This concept must be eliminated from the
code if it is to reflect the equality principle." (p. 206)
"It is a prime recommendation of this report that all
legislation based on the breadwinning, husband-dependent,
homemaking-wife pattern be recast using precise functional
description in lieu of gross gender classification." (p. 212)
"A scheme built upon the breadwinning husband [and]
dependent homemaking wife concept inevitably treats the woman's
efforts or aspirations in the economic sector as less important
than the man's." (p. 209)
2. The Federal Government must provide comprehensive government
child-care.
"The increasingly common two-earner family pattern should
impel development of a comprehensive program of governmentsupported
child care." (p. 214)
3. The right to determine the family residence must be taken
awav from the husband.
"Title 43 provisions on homestead rights of married couples
are premised on the assumption that a husband is authorized to
determine the family's residence. This
 xhusbana s prerogative'
is obsolete." (p. 214)
4. Homestead law must give twice as much benefit to couples who
live apart from each other as to a husband and wife who live
together.
"Married couples who choose to live together would be able
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to enter upon only one tract at a time." (p. 175) "Couples
willing to live apart could make entry on two tracts." (p. 176)
5. No-fault divorce must be adopted nationally.
"Consideration should be given to revision of 38 U.S.C.
§101(3) to reflect the trend toward no-fault divorce." (p. 159)
"Retention of a fault concept in provisions referring to
separation .. . is questionable in light of the trend away from
fault determinations in the dissolution of marriages." (pp. 214-
215)
. . . in Language
1. About 750 of the 800 federal laws that allegedly
"discriminate" on account of sex merely involve the use of socalled
"sexist" words which the ERAers wanted to censor out of
the English language. "The following is a list of specific
recommended word changes" which the feminists want censored out
of Federal laws (pp. 15-16, 52-53).
Words To Be Removed Words To Be substituted
 13
manmade artificial
man, woman person, human
mankind humanity
manpower human resources
husband, wife spouse
mother, father parent
sister, brother sibling
paternity parentage
widow, widower surviving spouse
entryman enterer
serviceman servicemember
midshipman midshipperson
longshoremen stevedores
postmaster postoffice director
plainclothesman plainclothesperson
watchman watchperson
lineman line installer, line maintainer
businessman businessperson
duties of seamanship nautical or seafaring duties
Sex Bias even demands bad grammar to appease the feminists:
"All federal statutes, regulations, and rules shall [use] plural
constructions to avoid third person singular pronouns." (pp. 52-
53)
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2. In another piece of silliness, Sex Bias demands that
Congress create a female anti-litter symbol to match "Johnny
Horizon."
"A further unwarranted male reference . . . regulates use of
the ^Johnny Horizon' anti-litter symbol. . . • This sex
stereotype of the outdoorsperson and protector of the environment
should be supplemented with a female figure promoting the same
values. The two figures should be depicted as persons of equal
strength of character, displaying equal familiarity and concern
with the terrain of our country." (p. 100)
3. On the other hand, Sex Bias shows its hypocrisy by
demanding that the "Women's Bureau" in the U.S. Department of
Labor be continued. Although the authors admit that this is
"inappropriate" (it is obviously sex discriminatory), they simply
demand it anyway. "The Women's Bureau is .. . a necessary and
proper office for service during a transition period until the
equal rights principle is realized." (p. 221)
4. Sex Bias in the U.S. Code makes a fundamental error in
stating: "The Constitution, which provides the framework for the
American legal system, was drafted using the generic term 'man'."
(p. 2) The word "man" does not appear in the U.S. Constitution
(except in a no-longer-operative section of the 14th Amendment,
which is not in effect now and was not in effect when the
Constitution was "drafted"). The U.S. Constitution is a
beautiful sex-neutral document. It exclusively uses sex-neutral
words such as person, citizen, resident, inhabitant, President,
Vice President, Senator, Representative, elector, Ambassador, and
minister, so that women enjoy every constitutional right that men
enjoy — and always have.
Sex Bias in the U.S. Code proves that Ruth Bader Ginsburg's
"equality principle" would bring about extremist changes in our
legal, political, social, and educational structures. The
feminists are working hard — with our tax dollars — to bring this
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about by constitutional mandate (through the Equal Rights
Amendment) OJC by legislative changes ££ by judicial activism.
Ruth Bader Ginsburg has been their premier lawyer for two
decades.
Finally, who but an embittered feminist could have said what
Ruth Bader Ginsburg said when she stood beside President Clinton
in the Rose Garden the day of her nomination for the Supreme
Court: She wished that her mother had "lived in an age when
daughters are. cherished as much as sons." Where in the world has
Ginsburg been living? In China? In India? Her statement was an
insult to all American parents who do, indeed, cherish their
daughters as much as their sons.
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The CHAIRMAN. We are happy to have your testimony. I might
add that I know that some of you did not know whether you wanted
to testify until late in the process, and I particularly appreciate
you coming across the country from California and from Illinois,
and I hope, as this has gone, we have tried to accommodate those
who asked to testify, even when it has been a little down the line.
Mr. Phillips asked early on.
It is nice to see you again, Kay Coles James. The last time we
saw you before this committee, you were a nominee. It is nice to
see you again.
STATEMENT OF KAY COLES JAMES
Ms. JAMES. Thank you, Mr. Chairman. I must admit that I prefer
this seat in terms of the one I had before.
The CHAIRMAN. Being a witness, rather than a nominee.
Ms. JAMES. Exactly right.
Thank you, Mr. Chairman. I would also like to thank the rest of
the committee for this opportunity to contribute to the deliberative
process on Judge Ginsburg.
Judge Ginsburg has presented herself as a moderate and as an
advocate of judicial moderation. Yet, many of her remarks reveal
a philosophy of judicial activism, most notably with regard to abortion,
where she clearly revealed views that I believe are radical and
activist, and I will even argue wrong.
Judge Ginsburg rightly claimed the privilege of refusing to answer
questions that might commit her on issues likely to come before
the Court, and she exercised this privilege on a wide range of
issues, refusing, for instance, either to endorse or reject the view
that sexual orientation is a suspect classification for equal protection
purposes, or the view that the capital punishment violates the
eighth amendment, even though it is specifically contemplated by
the fifth.
But on abortion, Judge Ginsburg not only declined to exercise the
privilege, she reached out, in answering a question from Senator
Brown that could have been answered much less broadly, and delivered
a ringing statement of her pro-abortion position.
Specifically, she said that the abortion right is, in her words, essential
to women's equality and dignity. She said, furthermore,
that when government controls that decision for a woman, she is
being treated as less than a fully adult human responsible for her
own choices.
Let me point out first that there is not a shred of law in that
statement. Right or wrong, it is pure policy. This is a very strange
comment coming from someone who postures as a believer in judicial
moderation.
Though, Senator I don't think that she ever really answered your
question on how she can reconcile her advocacy of a broad policy
driven construction of the equal protection clause with her more recent
advocacy of a restrained judiciary, the answer is not hard to
find in her speeches and, in fact, in her articles.
She believes the Supreme Court can and should promote radical
change, but it should be done slowly, and the slowness is based not
on principle, but on expediency. If the Court moves too fast, the
electorate reacts in the opposite direction, and this is precisely her
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so-called criticism of Roe v. Wade. She understands that the electorate
in the hands of a liberal, yet cautious judiciary is like a frog
in a pot of slowly-heating water. It will never notice the increasing
temperature and will get boiled to death, rather than jump out.
But I will leave equal protections of history to one side, because
I am not an attorney. What I am is an African-American woman
who has put a certain amount of effort into reminding our increasingly
self-obsessed society about the right of the most vulnerable
category of human beings, the only ones who have been held as a
matter of constitutional law to be completely without rights, the
human unborn.
Judge Ginsburg believes that laws that command people to respect
the rights of the human unborn treat the mother as "less
than a fully adult human responsible for her own choices." Mr.
Chairman, a similar critique could be leveled at any law whatsoever.
All laws direct human conduct in some fashion, and, to that
extent, all laws deprive people of absolute autonomy.
Senator Simon is concerned that any Supreme Court nominee he
votes for be someone who will increase freedom. But I don't think
he means he wants someone who will, say, rule that the 1960 Civil
Rights Act is unconstitutional. That act unquestionably limited
what some people regard as freedoms, the freedom to decide whom
to associate with on the job, the freedom to control the use of one's
own property, and so forth. Many employers and restaurant owners
argued, in fact, that the act treats them as "less than fully adult
humans responsible for their own choices." But it passed, as well
it should have, and it continues to command overwhelming support
in the electorate, because the limitations it imposed on freedom
were necessary to protect the rights of other people whose rights
and dignity were being denied, just as the rights and dignity of
children in the womb are being denied today.
Judge Ginsburg frames the abortion right with no trace of having
confronted the question of whether there might be a party other
than the mother with a life-or-death stake in the abortion decision.
One of her formulations of the abortion right is that "women
have a right free from unwarranted governmental intrusion whether
or not to bear children." That is something I myself could say
amen to, were it not for the question of those conceived but not yet
born. But asserting a right not to bear a child, regardless of whether
or not that child has already come into existence, is like asserting
a right to fire a loaded gun, regardless of whether or not there
is someone standing in the path of the bullet.
Finally, I would like to say a few words about this notion that
the right to take the life of the innocent preborn child as necessary
to women's equality and freedom in society. This view, in my belief,
is a total capitulation to the old saw about how it is a man's world.
Those who adhere to it are, in effect, saying that in order to
achieve dignity and standing in the world, women have to have the
equivalent of male bodies, but they don't. Women don't need to mutilate
their bodies or take the lives of their children in order to be
equal to any man. The real feminists are those who say I'm pregnant,
I can bear children, and you had better be prepared to deal
with it. [Applause.]
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The Senate is about to put an advocate of the male assimilation
theory of women's rights onto the Supreme Court and to earn plaudits
from the feminist establishment for doing so, not to mention
plaudits from the media for confirming a moderate.
So it probably won't matter that, for this nominee, moderation is
a political tactic, rather than a legal practice. Nor will it matter
that the nominee's reasoning on abortion is premised on the notion,
to paraphrase the Dred Scott decision, that the unborn have no
rights that the born are bound to respect. But I think it is a tragedy
that we have sunk to the point that this is our idea of a noncontroversial
nominee.
Mr. Chairman, I do thank you and the committee for the opportunity
to come here and say so today.
The CHAIRMAN. Thank you for a reasoned, dispassionate, wellstated
statement. As I said, it is nice to have you back before the
committee and it is nice to know that you would rather be a witness
than a nominee. I guess it is a different role.
Welcome back, Mr. Phillips. One thing for certain, you are nonpartisan
in your criticism. The last time you were here, if I remember—I
mean this to establish your bona fides here—you were not
reluctant to oppose a Republican nominee, and you are not reluctant
to oppose a Democratic nominee.
Mr. PHILLIPS. I am nonpartisan. I am bipartisan.
The CHAIRMAN. That is a better way of saying it. The floor is
yours.
STATEMENT OF HOWARD PHILLIPS
Mr. PHILLIPS. Thank you very much, sir, Senator Hatch, Senator
Specter.
When we are told that a unanimous vote is in the offing, the
American people have the right to ask, in all seriousness, do all
Senators share the same standard of judgment. In 1990, when you
accorded me the opportunity to testify in opposition to the nomination
of David Souter, I asserted that the overarching moral issue
in the political life of the United States in the last third of the 20th
century is the question of abortion: Is the unborn child a human
person entitled to the protections pledged to each of us by the
Founders of the Nation?
The first duty of the law and the civil government established to
enforce that law is to prevent the shedding of innocent blood. As
Notre Dame law professor Charles Rice has pointed out, this is so,
because the common law does not permit a person to kill an innocent
nonaggressor, even to save his own life.
I have no reason to believe that Mrs. Ginsburg has personally
caused human lives to be extinguished, as was clearly the case
with David Souter, when President Bush put his name forward.
Nor do I in any other way challenge Mrs. Ginsburg's nomination
on grounds of personal character. I do, however, urge that Mrs.
Ginsburg's nomination be rejected on grounds that the standard of
judgment she would bring on the overriding issue of whether the
Constitution protects our God-given right to life is a wrong standard.
Instead of defending the humanity and divinely imparted right
to life of preborn children, she would simply be another vote for the
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proposition that our unborn children are less than human, and that
their lives may be snuffed out, without due process of law and with
impunity. As a matter of practice and belief, Mrs. Ginsburg has
failed to acknowledge or recognize that the first duty of the law is
indeed the defense of innocent human life.
If it is Mrs. Ginsburg*s position, and it does seem to be her view,
that the extinguishment of innocent unborn human lives without
due process of law is not only constitutionally permissible, but that
those who engage in the practice of destroying unborn lives should
enjoy constitutional protection for doing so, she may have a perspective
consistent with that held by members of this committee.
But it is not one which is consistent with either the plain language
of the Constitution or with the revulsion toward abortion which
prevailed at the time when our Constitution was drafted and ratified.
While Ms. Ginsburg has disagreed with the reasoning in Roe. v.
Wade, she has at no time expressed dissatisfaction with the millions
of legal abortions which were facilitated by that decision, even
though she would have argued that discrimination rather than privacy
was the core issue. By Ms. Ginsburg's logic, it is unconstitutional
discrimination to deny females the opportunity to extinguish
any lives which may result from their sexual conduct. Her argument
would seem to be with our creator inasmuch as he did not
equally assign the same childbearing function to males. Consistent
with her warped perspective, Ms. Ginsburg as a litigator argued
that pregnancy should be treated as a disability rather than as a
gift from God.
The question of personhood and of the humanity of the preborn
child is at the very heart of the abortion issue in law, in morals,
and in fact. Justice John Paul Stevens expressed his opinion in the
1986 Thornburgh case that there is a fundamental and well-recognized
difference between a fetus and a human being. He admitted
that indeed if there is not such a difference, the permissibility of
terminating the life of a fetus could scarcely be left to the will of
the State legislatures.
In the Roe v. Wade decision, the Supreme Court indicated that
if the unborn child is a person, the State could not allow abortion
even to save the life of the mother. In fact, the majority opinion deciding
Roe v. Wade—in that opinion, the Supreme Court said that
if the personhood of the unborn child is established, the pro-abortion
case, of course, collapses, for the fetus' right to life would then
be guaranteed specifically by the 14th amendment.
Although my reasoning is different, I agree with Justice Stevens
when he argues that if the unborn child is recognized as a human
person, there is no constitutional basis to justify Federal protection
of abortion anywhere in the United States of America. Indeed, on
the contrary, if the preborn child is, in fact, a human person created
in God's image, premeditated abortion is unconstitutional in
every one of the 50 States.
Ms. Ginsburg should be closely questioned by members of the Judiciary
Committee concerning whether she believes the unborn
child is a human person created in God's image. This is the core
issue. If this is not her understanding—and it does not seem to
533
be—she should be asked to indicate by what logic she reaches a
contrary conclusion.
It has been reported concerning Ms. Ginsburg that several of her
writings provide a glimpse into her approach to the Constitution.
In an article in Law and Inequality, a journal of theory and practice,
she wrote that, "a too strict jurisprudence of the Framers'
original intent seems to me unworkable." She went on to write that
adherence to our 18th century Constitution is dependent on change
in society's practices, constitutional amendment, and judicial interpretation.
Furthermore, in the Washington University Law Quarterly she
remarked that boldly dynamic interpretation, departing radically
from the original understanding of the Constitution, is sometimes
necessary. And in a speech this March at New York University,
Judge Ginsburg advocated using the Supreme Court to enact social
change. Without taking giant strides, the Court, through constitutional
adjudication, she said, can reinforce or signal a green light
for social change.
It is not surprising that different people might reach different
conclusions about the intent of the Framers, but it is quite another
thing for a prospective Justice of the Supreme Court to presume to
substitute his or her own opinion for the plain meaning of the original
document, as lawfully amended.
I hope the members of this committee will probe more deeply
into Ms. Ginsburg's present view of the opinions she expressed in
these briefs, articles, and speeches. If she is unwilling to repudiate
them credibly and entirely, then even aside from her apparent failure
to recognize the duty of the State to safeguard innocent humanity,
she would seem to have disqualified herself from a position
in which she is expected to be a guardian of the Constitution. Otherwise,
a vote to confirm Ms. Ginsburg becomes a vote to empower
a permanent one-woman constitutional convention which never
goes out of session.
Indeed, in view of the position taken by Ms. Ginsburg that it is
the duty of Supreme Court Justices to disregard the plain words
and intentions of the Constitution, it is particularly important that
her personal opinions be even more closely scrutinized.
It is the particular obligation of those who might disagree with
Ms. Ginsburg's ideology and policy objectives to either oppose her
nomination on the basis of such disagreement or to henceforth
cease their personal professions of conviction on those particular issues,
whether they relate to abortion, to homosexuality, or to some
other issue where Ms. Ginsburg's philosophical predilections are a
matter of public record.
I see that my time is up, so I will terminate my testimony there,
asking that the balance of it be submitted to the record.
The CHAIRMAN. It will be placed in the record.
[The prepared statement of Mr. Phillips follows:]
534
"A vote to confirm Mrs. Ginsburg
becomes a vote to empower
a permanent one-woman Constitutional Convention
which never goes out of session."
SUMMARY OF TESTIMONY
IN OPPOSITION TO CONFIRMATION OF RUTH BADER GINSBURG
To BE A JUSTICE OF THE U.S. SUPREME COURT
Excerpts from Testimony of Howard Phillips
When we are told that a unanimous vote is in the offing, the
American people have the right to ask in all seriousness: "Do all
Senators share the same standard of judgment?"
By Mrs. Ginsburg's logic, it is unconstitutional discrimination
to deny females the opportunity to extinguish any lives which may
result from their sexual conduct. Her argument would seem to be with
our Creator, inasmuch as he did not equally assign the same childbearing
function to males. Consistent with her warped perspective, Mrs.
Ginsburg, as a litigator, argued that pregnancy should be treated as a
disability rather than as a gift from God.
Indeed, in a 1972 brief, Mrs. Ginsburg argued that "exaltation of
woman's unique role in bearing children has, in effect, restrained
women from developing their individual talents...and has impelled them
to accept a dependent, subordinate status in society."
Moreover in 1984, in a soeech at the University of North Carolina,
Mrs. Ginsburg went so far as to maintain that the government has a
legal "duty" to use taxpayer funds to subsidize abortion.
In an article in Law and Inequality: A Journal of Theory and
Practice, she wrote that 'a too strict jurisprudence of the framers'
original intent seems to me unworkable.' She went on to write that
adherence to 'our eighteenth century Constitution' is dependent on
'change in society's practices, constitutional amendment, and judicial
interpretation.' Furthermore, in the Washington University Law
Quarterly, she remarked that 'boldly dynamic interpretation departing
radically from the original understanding' of the Constitution is
sometimes necessary."
It is not surprising that different people might reach different
conclusions about the intent of the Framers. But it is quite another
thing for a prospective Justice of the Supreme Court to presume to
substitute his or her own opinion for the plain meaning of the original
document as lawfully amended. If she is unwilling to repudiate it
credibly and entirely, then, even aside from her apparent failure to
recognize the duty of the state to safeguard innocent humanity, she
would seem to have disqualified herself from a position in which she
is expected to be a guardian of the Constitution. Otherwise, a vote
to confirm Mrs. Ginsburg becomes a vote to empower a permanent one
woman Constitutional convention which never goes out of session.
Mrs. Ginsburg's views on virtually every subject which might
conceivably be addressed by the Supreme Court are relevant to the
consideration of this body.
It is the particular obligation of those who might disagree with
Mrs. Ginsburg's ideology and policy objectives to either oppose her
nomination on the basis of such disagreement, or to henceforth cease
their personal professions of conviction on those particular issues
whether they relate to abortion, to homosexuality, or to some other
issue where Mrs. Ginsburg's philosophical predilections are a matter
of public record.
Mrs. Ginsburg's nomination should be rejected.