by Matt Barr

Fish in a barrel, New York Times Supreme Court endorsement division

Reading the New York Times' endorsement of the confirmation of Judge Ruth Bader Ginsburg on July 25, 1993 (go buy it from their paid archives if you want; I did), you would think that a nominee who is obviously smarter than his Senate interrogators would be a blue chip choice for the Court.

While members of the Senate Judiciary Committee droned through Ruth Bader Ginsburg's hearings last week, the nominee could have been forgiven for thinking, Don't scoff, hang on a little longer and you're in. Endure she did, showing not only knowledge, but also the patience and courtesy befitting a justice of the highest court.

No thanks to the committee, the hearings displayed the workings of a focused legal mind. She dwarfed not only her questioners but all the recent nominees to the Supreme Court she will soon join. Fortunately the senators realize this much: She deserves speedy confirmation.

You'd think an impressive legal resume would only boost a nominee's stature.

Judge Ginsburg -- teacher, women's advocate and for 13 years a member of the U.S. Court of Appeals in Washington -- outclassed those entrusted to advise and consent on her nomination to replace retired Justice Byron White. Fittingly, most of the senators admitted they were not in her league, although the chairman, Joseph Biden, and other preening members insisted on their own shows, largely in the form of erratic questions.

And especially, you'd think nominees chosen only for their ideology would be no-nos.

While the politicians repeatedly pressed for bottom lines on particular issues like the death penalty and gay rights, Ms. Ginsburg asked to be judged as a judge, not as an advocate. Senators who could not be educated yielded anyway -- to the reality that Judge Ginsburg enjoys overwhelming Senate support....

Nominees chosen for ideology, or with sparse credentials out of political necessity, by increments have depressed the Court's performance, professional standing and fidelity to law. President Clinton's nominee brings a touch of class to the Supreme Court.

And yet while "[f]ew lawyers in America can compete with Mr. Roberts in professional accomplishments," that's necessary but not sufficient. "If the test were legal skill alone, Mr. Roberts would certainly pass." It's not? No: "the stakes are simply too high. Senators should vote against Mr. Roberts not because they know he does not have the qualities to be an excellent chief justice, but because he has not met the very heavy burden of proving that he does."

No "class," or anything?

We don't want nonimees who are chosen only for their (icky Republican) ideology, "[b]ut the unknowns about Mr. Roberts's views remain troubling." In the face of being "repeatedly pressed for bottom lines on particular issues," you mean?

Shouldn't "Senators who could not be educated yield[] anyway" to the reality that Roberts likely has enough votes for confirmation? Or is "overwhelming" support necessary, sort of a "super duper" support requirement?

The Times is talking out of both sides of its mouth. Ginsburg deserved "speedy confirmation" because she outclassed the Senators questioning her. Well? On repeated pressing for a bottom line on specific issues, it was a mark in her favor that she deferred. Well? She contrasted with obvious ideologue nominees. Well? She's classy. Well? Setting aside the unstated but obvious, am I missing a published argument in the Times in 1993 in favor of Ginsburg's "speedy confirmation" that doesn't apply to Roberts in 2005?

Oh, there was this fanboy bit, too:

For the first time in years a nominee displays the potential to become a justice on the order of John Marshall Harlan, rightly one of Judge Ginsburg's judicial heroes....

The bridge she builds to justices like John Harlan, who served from 1957 to 1971, is a reminder of the mediocrity of so many appointees of the Bush-Reagan years.

Ms. Justice Ginsburg, you're no John Marshall Harlan:

Harlan was called a "lawyer's judge" as well as a "judge's judge." His opinions were so closely reasoned and so clearly written that lawyers often turned to him first for a succinct, fair statement of the issues. In reviewing his career, newspapers spoke of him as the court's conservative conscience.

He was a strong believer in states' rights and an ardent defender of the rights of the individual. When the Court laid down its one-man, one-vote rule for state legislatures in 1964 he dissented, because he believed the vitality of the American political system was weakened by reliance on the judiciary for political reform; "the Constitution," he said, "is not a panacea for every blot upon the public welfare."

For a sense of why Harlan's grandfather might nearly make a Supreme Court Mount Rushmore (no, I didn't mention him), read this.

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