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Justice Ginsburg: An Affirmative Action Baby?

Thursday, July 9, 2009 10:18 AM - By David Lat

Ruth Bader Ginsburg cancer surgery.jpgThe Nine are all divine — but not all Supreme Court justices are created equal. Some are smarter than others. If you quiz former Supreme Court clerks, as we have, you’ll find that the Elect have strong opinions about who the smartest and most capable members of the Court are. (Depressingly enough, even after you became a justice of the United States Supreme Court, people will still rank you by your smarts.)

Liberal and conservative clerks alike generally cite Justice Ruth Bader Ginsburg as one of the sharpest and most self-sufficient — i.e., least clerk-dependent and clerk-driven — of the current justices. So some may be surprised by these tidbits, from RBG’s fascinating interview with Emily Bazelon (herself a descendant of Article III aristocracy, the granddaughter of David Bazelon, former chief judge of the Most Holy D.C. Circuit)

What do you think about Judge Sotomayor’s frank remarks that she is a product of affirmative action?

JUSTICE GINSBURG: So am I. I was the first tenured woman at Columbia. That was 1972, every law school was looking for its woman. Why? Because Stan Pottinger, who was then head of the office for civil rights of the Department of Health, Education and Welfare, was enforcing the Nixon government contract program. Every university had a contract, and Stan Pottinger would go around and ask, How are you doing on your affirmative-action plan? William McGill, who was then the president of Columbia, was asked by a reporter: How is Columbia doing with its affirmative action? He said, It’s no mistake that the two most recent appointments to the law school are a woman and an African-American man.

And was that you?

JUSTICE GINSBURG: I was the woman. I never would have gotten that invitation from Columbia without the push from the Nixon administration. I understand that there is a thought that people will point to the affirmative-action baby and say she couldn’t have made it if she were judged solely on the merits. But when I got to Columbia I was well regarded by my colleagues even though they certainly disagreed with many of the positions that I was taking. They backed me up: If that’s what I thought, I should be able to speak my mind.

Of course, the case for affirmative action back then, over 30 years ago, may have been stronger than it is today.

More discussion, plus the chance for you to sound off in the comments, after the jump.

Nobody would question the legal abilities or intelligence of Ruth Bader Ginsburg. She made law review at both Harvard Law School, where she finished her first year of law school, and Columbia Law School, where she graduated first in her class.

Despite these laurels, she landed “only” a district court clerkship (although, to be fair, it was with the S.D.N.Y. — Judge Edmund L. Palmieri). One would have expected someone with her academic credentials to have ended up with a prestigious circuit clerkship, perhaps on either the D.C. or Second Circuit.

One might also have expected her to join the ranks of the Elect. But Justice Ginsburg failed to secure a Supreme Court clerkship — and it may have had something to do with her gender. From an interesting 2006 article, by Linda Greenhouse for the NYT:

It was not until the 1940’s that any justice hired either a female or black law clerk.

Justice William O. Douglas hired the first female clerk, Lucille Lomen, in 1944, and it was 22 years before Justice Hugo L. Black hired the second, Margaret Corcoran. The first black clerk, William T. Coleman Jr., who is still practicing law here, was hired by Justice Felix Frankfurter in 1948.

Justice Frankfurter was not, however, ready to hire a woman when the dean of Harvard Law School strongly recommended a former star student in 1960. He turned down Ruth Bader Ginsburg.

So affirmative action may have been needed back then, decades ago. Does it still make sense today? Or is it the case that — to paraphrase one of RBG’s colleagues, Chief Justice John Roberts — the way to stop discrimination on the basis of race and gender is to stop discriminating on the basis of race and gender?

The Place of Women on the Court [New York Times]

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