From Newsweek's Archive: Bill Clinton Selects Ruth Bader Ginsburg, But What Kind of Judge Will She Be?

It was a deliberative performance worthy of the finest jurist. For 87 days, Bill Clinton pondered and weighed whom he would name as the 107th justice of the U.S. Supreme Court. From the outset, the president said his choice would be a juridical "home run" rather than the bloop doubles that his two Republican predecessors mostly hit when making their Supreme lineup. Last week Clinton picked Ruth Bader Ginsburg, a judge on the federal appeals court in Washington-and at 60, the oldest highcourt nominee since Lewis Powell in 1971. By all accounts, she's smart and collegial and a cinch to win Senate confirmation by late summer. What more could Clinton want? That depends on which Ginsburg he's getting.

As a lawyer in the late '60s and '70s, Ginsburg was every bit the rebel, taking on the gender discrimination that the American legal system had long countenanced. She had seen it herself at Harvard law school: despite a glowing recommendation from the dean, Justice Felix Frankfurter turned her down for a clerkship in 1960 simply because he wasn't ready to hire a woman. From 1973 to 1979, Ginsburg argued six women's rights cases before the Supreme Court, winning five. Her strategy now seems unremarkable: the 14th Amendment's guarantee of equal protection, which was enacted after the Civil War to protect blacks, applied to women as well. Her success is why so many supporters last week called her the Thurgood Marshall of gender-discrimination law.

But if Ginsburg pushed the constitutional envelope as a litigator, she's sealed it quite shut as a judge. Her record suggests that the "centrist" and "moderate" nomenclature repeatedly used to describe her might have been overstated. On the bench, she's been restrained and nonideological, showing little of the passion that so fueled her earlier work. In her first eight years as a judge, she actually sided with Republican appointees more often than with her fellow Democrats; for example, she voted to dismiss a case brought by a gay sailor discharged by the navy. "You see this picture of her first being in the trenches as an activist," says Prof. Barbara Babcock of Stanford law school. "Then you see her as a good gray jurist, so moderate, so sane."

That is precisely what finally appealed to Clinton in his labyrinthine search to replace Justice Byron White. After Lani Guinier, after gays-in-the-military, the last thing the president needed was to provide fodder to critics claiming he was the same old liberal in New Democrat clothing. While Ginsburg was his fifth choice-New York Gov. Mario Cuomo and Education Secretary Dick Riley said no, Interior Secretary Bruce Babbitt and federal Judge Stephen Breyer lost out for political reasons-she played to rave reviews. Besides the brains and the caution, she would be the first Jewish justice in 24 years and only the second woman. Even the velociraptors of the far right found little to lament, besides her apparent support for at least limited abortion rights.

It is Ginsburg's centrism that has long given some liberal interest groups misgivings, which in turn produced a major countercampaign to get her on the high court. Pro-choice leaders, in particular, worry about a lecture she gave in March attacking the breadth of Roe v. Wade, the 1973 ruling that created the right to abortion. Roe "halted a political process that was moving in a reform direction and thereby...prolonged divisiveness," Ginsburg said. She also hinted she would have supported the court's 1992 Casey ruling, which reaffirmed Roe while giving states power to restrict more abortions. "All I want to know is whether she believes abortion is a fundamental right," said Kate Michelman of the National Abortion Rights Action League.

By the end of the week, Michelman and others rolled back the rhetorical artillery. They had learned of revisions Ginsburg made in the soon-to-be-published lecture; now she criticizes Casey. "I find the clarifications reassuring," pronounced Michelman. Ginsburg's husband, Martin, says the revisions were part of the normal academic process and had nothing to do with his efforts to land her the Supreme Court job. He had orchestrated a letterwriting campaign to the White House from prominent women and professors to allay concern that she was not sufficiently proRoe. He even asked the ACLU to endorse her; it declined.

New rules: There isn't necessarily a tension between Ginsburg the emboldened advocate and Ginsburg the judicial conservative. After all, they are different roles, each with its own traditions. As a lowercourt judge, Ginsburg is constrained by precedent. "She was enforcing conservative Supreme Court law," says Frank Askin, a law professor who worked with Ginsburg in the '70s. For justices, those rules no longer apply. Babcock predicts that her friend will find more maneuvering room at the Supreme Court and will nudge it to re-energize liberal Warren Court decisions that the Rehnquist regime has all but vanquished.

That's one direction Ginsburg could take. There is another. In 1939, FDR appointed one of the great liberals of his time to the court, a man who helped found the ACLU and was an architect of the New Deal. His name: Felix Frankfurter. Liberals rejoiced. But as a justice for the next 23 years, he turned out to be the great proponent of judicial restraint. Liberals hoping that Ginsburg will emerge as a jurisprudential hot dog would do well to remember his name.