Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 25, 1993 TAG: 9307250061
SECTION: NATIONAL/INTERNATIONAL PAGE: A-7 EDITION: METRO
SOURCE: Associated Press
DATELINE: WASHINGTON LENGTH: Medium
The former appeals court colleagues are great friends - Scalia once said he'd like to be stranded on a desert island with her - but on the bench their outlooks diverge, Ginsburg told the Senate Judiciary Committee last week.
She called one of Scalia's opinions "disrespectful" to Supreme Court precedent and said she disagrees with his approach in deciding other legal issues.
Ginsburg appears headed for easy committee approval next week. The full Senate is expected by early August to make her the second woman on the Supreme Court and the first justice named by a Democratic president in more than a quarter-century. She would replace retired Justice Byron White.
Ginsburg frustrated many senators during last week's confirmation hearing by refusing to give her views on many issues, such as the constitutionality of capital punishment. But she did offer these insights into her outlook:
A former women's rights lawyer, Ginsburg firmly endorsed the constitutional right to abortion and said she still backs enactment of the Equal Rights Amendment as a "clarion call that women and men are equal before the law."
Asked about discrimination against homosexuals, she said, "rank discrimination against anyone is against the traditions of the United States and is to be deplored." However, she would not say whether she believed discrimination against gays is illegal or unconstitutional.
She implied she disagreed with the Supreme Court's ruling last year that the U.S. government can kidnap people from foreign countries and prosecute them over that country's objection. "The Constitution and federal law should be our guide wherever we are," Ginsburg said while refusing to comment directly on the decision.
Ginsburg said women one day may no longer be exempt from registering for the draft. "It's not unknown in the world that women are obligated to serve their country as men are," she said.
Ginsburg served part of her 13 years on the appeals court with Scalia, whom she called "one of the people in the world who can make me laugh." Reminded of his remark about wanting to be stranded with her, Ginsburg quipped, "Compared to what?"
But she was quick to stake out separate judicial territory.
She said Scalia was disrespectful in an opinion in June that described a landmark legal test on the separation of church and state as being "like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried."
"It's easier to criticize than to come up with an alternative," she said.
Ginsburg brushed aside a favorite conservative view, pushed by Scalia, that when a federal law is unclear judges should not look at congressional documents to try to figure out what Congress intended.
"Yes, I do look at legislative history when the text is not clear, and I approach it with an attitude of hopeful skepticism," Ginsburg said. "A judge has to try to find out what the legislature meant."
Reminded that Scalia sees it differently, she said, "I am well aware of his position."
She also doesn't buy Scalia's method of deciding whether the Constitution protects particular kinds of personal rights.
In a 1989 Supreme Court case involving a man who wanted to be legally considered the father of a child born to a woman married to another man, the justices disagreed on how to decide if society has traditionally protected that right.
Some justices focused on whether the Constitution protects people's broad right to be a parent. But Scalia viewed the matter more narrowly, saying the man must lose because society has not specifically protected someone's parental right to a child whose mother is married to another man.
Ginsburg said she favors the broader approach, which she noted also has been used by former Justices John Marshall Harlan and Lewis Powell.
Ginsburg indicated she is as convinced her methods are right as Scalia is certain of his own.
"I think we will continue to have interesting differences of viewpoint," she told senators.
by CNB