WASHINGTON -- Supreme Court nominee Ruth Bader Ginsburg, in her second day of a Senate confirmation hearing, danced away Wednesday from asserting her positions on broad legal principles.
Time and time again, members of the Senate Judiciary Committee tried to get Ginsburg to state her position on the limits of court power, on how rigorous sex discrimination cases should be pursued, or whether the current Supreme Court has lowered the barriers between church and state.
Each time, Ginsburg said she preferred to deal with specific questions, or that the issue concerned cases she might be required to hear if confirmed to the court.
'The way I'm accustomed to operating -- and as a judge that's the only way I can operate -- is with a full record and briefs,' Ginsburg said. The nominee currently sits on the U.S. Court of Appeals for the D. C. Circuit, one step below the Supreme Court.
The verbal bantering produced no acrimony on either side and senators maintained their support for her nomination.
Ginsburg appeared much more relaxed on Wednesday than on Tuesday, the first day of questioning by the committee.
Tuesday night, after more than six hours of sitting, Ginsburg laughingly told a friend the hearings were 'like an endurance test.'
Sen. Patrick Leahy, D-Vt., asked Ginsburg Wednesday whether the current high court had put more emphasis on the First Amendment clause that prohibits the government from interfering with religion than it did on the clause that forbids the establishment of religion.
'The two clauses are on the same line in the amendment,' Ginsburg said carefully.
Leahy then insisted on asking Ginsburg which she thought was superior, or which the current high court thought was superior. When Ginsburg again refused to take a position, Leahy quipped, 'Just trying, judge, just trying.
Earlier, Ginsburg resisted efforts by Sen. Dennis DeConcini, D-Ariz., to find out from her how vigorously the courts should review laws based on gender classification.
DeConcini said unspecified Bush and Reagan nominees to the Supreme Court had sought to weaken the Fourteenth Amendment's equal protection clause when it comes to sex discrimination -- the same protection principle Ginsburg established in argument before the high court as a litagator in the 1970s.
'It has always been my view,' Ginsburg said, 'that distinctions on the basis of gender should be treated most skeptically.' She said that approach should be applied even when laws allegedly protect women.
But Ginsburg appeared to duck the question of whether sex classifications in law should be subjected to the highest level of scrutiny, as she first advocated in the early 1970s, or mid-level scrutiny, as she came to advocate both as a litigator and a judge.
Ginsburg repeatedly refused to be pinned down by DeConcini on whether the courts should be reflecting or leading society in cases of social justice -- despite inaction or adverse action by legislatures.
Ginsburg would only cite landmark cases, such as Brown v. Board of Education, which established integration in public schools, or her own victories over sex discrimination before the high court.
'From my viewpoint' Ginsburg said, the landmark cases 'were reflecting social changes and the ongoing changes in society.'
Ginsburg said she could not predict whether courts, particularly the Supreme Court, would be a leader.
Finally, an affable but exasperated DeConcini gave up.
'I'm going to put words in your mouth,' he said. 'Judge, you are a leader.'
Sen. Arlen Specter, R-Pa., who was criticized for his relentless questioning of Anita Hill about her allegations of sexual harassment against Clarence Thomas during his Supreme Court confirmation hearing in 1991, was much easier on Ginsburg. Specter said he was 'very much impressed' with Ginsburg.
Specter asked her whether the proposed Equal Rights Amendment would give women more protection under the Constitution.
She did not address his question specifically, but said the Fourteenth Amendment gives men and women equal protection of their rights. She said the ERA is 'still important in a symbolic sense.
'I would like to see it for the sake of my daughter and granddaughter' and everyone else's daughter, she said.
A lighter moment came on Ginsburg's use of the term 'gender discrimination' rather than 'sex discrimination' -- a usage that's brought some derision from younger feminists.
Ginsburg said when she was at Columbia University in the 1970s, writing briefs and articles about 'sex discrimination,' her secretary came to her to complain.
'I've been writing this word sex, sex, sex!' her secretary said.
The secretary told Ginsburg the world 'sex' meant gender to her, but it had quite a different meaning to the men who occupied most courts.
The secretary suggested the term 'gender discrimination,' Ginsburg said, which she thought would 'ward off distracting associations' from male judges. Ginsburg said she herself has used that term ever since.
Ginsburg then raised her eyes to the cameras in the hearing room and addressed that early secretary.
'Millicent,' Ginsburg said, 'if you're somewhere watching this, I owe it all to you.'
