It’s funny how much can change in 17 years. Yesterday I was reading through Supreme Court nominee Elena Kagan’s written responses to questions from the Senate Judiciary Committee during her confirmation hearings last year to be Solicitor General. I was struck by one about her time working on Justice Ruth Bader Ginsburg’s confirmation. The committee asked Kagan:
In 1993, you worked on Justice Ginsburg’s confirmation hearing. Prior to Justice Ginsburg’s confirmation to the Supreme Court, she wrote on a number of women’s issue. She had written that the age of consent for women should be 12, that prisons should house men and women together in order to have gender equality, that Mother’s and Father’s Day should be abolished because they stereotype men and women, and that there is a constitutional right to prostitution. In a 1995 book review, you called Justice Ginsburg a “moderate.” Do you believe these are moderate positions?
Kagan, naturally, sprinted away from Ginsburg and claimed she wasn’t even aware of some of her more liberal positions. (Kagan is, of course, pro-Mother’s Day.) But what struck me about the question was just how impossible it would be today for someone with Ginsburg’s career as an advocate to make it on to the federal bench at virtually any level, much less the Supreme Court. I mean, arguing to abolish Mother’s Day? A constitutional right to prostitution? Any one of those things would be the kiss of death in today’s polarized world. Yet Ginsburg’s nomination wasn’t the least bit controversial. She was confirmed overwhelmingly in a 96 to 3 vote. Only a single witness testified against her.
What’s depressing about how much the confimration process has changed is that it hasn’t kept judges (or justices) with extreme views off the bench. It’s just made aspiring justices better at hiding those views, at least until they get a lifetime appointment, at which time they are free to say, rewrite 100 years of campaign finance laws in favor of big corporations.