“Ruth Bader Ginsburg blinked behind giant, round eyeglasses. It was the first day of her confirmation hearings, in July of 1993, the year after the Year of the Woman, and Joe Biden, the chairman of the Senate Judiciary Committee, was very pleased to see her. Keen to do penance for the debacle of the Clarence Thomas hearings, just two years before—the year before the Year of the Woman—when an all-male committee, chaired by Biden, failed to credit what Anita Hill had to say about George H. W. Bush’s Supreme Court nominee, he could hardly have been friendlier to Bill Clinton’s nominee, a much respected and widely admired sixty-year-old appellate judge. She sat with the stillness of a watchful bird. “Judge Ginsburg, welcome,” Biden said, heartily. “And, believe me, you are welcome here this morning.”
He had more reasons, too, to beam at Ginsburg. Only weeks earlier, Clinton had withdrawn his nomination of Lani Guinier as Assistant Attorney General, an abandonment that had followed the very new President’s unsuccessful nominations of two female Attorneys General, Kimba Wood and Zoë Baird. Clinton and Biden needed a successful, high-profile female appointment, one without a discussion of pubic hair or video porn or nannies. On the way to work on the first day of the Ginsburg hearings, Biden had read the New York Times on the train and found that there was no mention of Ginsburg on page 1, or page 2, or page 3, which, he told Ginsburg, “was the most wonderful thing that has happened to me since I have been chairman of this committee.” He flashed his movie-star grin.
During that first session, scheduled for two and a half hours, the committee members—sixteen men and two lately added women—did nearly all the talking, delivering opening statements. Not until the outset of the second session did Biden sidle up to a question. “The Constitution has to be read by justices in light of its broadest and most fundamental commitments, commitments to liberty, commitments to individual dignity, equality of opportunity,” he said, putting on his glasses, and taking them off again. Ginsburg blinked and stared and waited.
Biden’s question concerned a recent speech, the Madison Lecture, in which Ginsburg had said that in making decisions concerning rights not listed in the Constitution judges should be “moderate and restrained” and avoid stepping “boldly in front of the political process,” as he reminded her. “But, Judge,” Biden said, ‘in your work as an advocate in the seventies you spoke with a different voice. In the seventies, you pressed for immediate extension of the fullest constitutional protection for women under the Fourteenth Amendment, and you said the Court should grant such protection notwithstanding what the rest of society, including the legislative branch, thought about the matter. . . . Can you square those for me or point out their consistency to me?’”