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Jewish Groups Like What They See in Court Nominee’s Legal Writings

June 23, 1993
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Ruth Bader Ginsburg, President Clinton’s nominee to the U.S. Supreme Court, has drawn initially favorable reviews from the Jewish community, based on her judicial writings.

But Jewish organizational officials say they are just beginning to sift through the record amassed in the decades of Ginsburg’s legal career.

Ginsburg, who currently sits on the U.S. Court of Appeals here in Washington, would be the first Jewish woman ever to sit on the high court and the first Jewish member since Justice Abe Fortas resigned in 1969.

The Senate Judiciary Committee plans to begin hearings July 20 on Ginsburg’s nomination to replace retiring Justice Byron White.

Since the president’s announcement last week that he was selecting Ginsburg, Jewish groups have been studying the judge’s past decisions, speeches and writings, looking for information on relevant issues.

One issue on which Ginsburg’s views have been controversial is the Supreme Court’s 1973 Roe vs. Wade decision, which provided a constitutional basis for legalizing abortion.

Much of the Jewish community supports abortion rights, and Jewish organizational officials say they believe Ginsburg is pro-choice as well, despite her criticisms of the Roe decision.

Ginsburg has argued that instead of finding a basis for legalizing abortion in some vague constitutional right to privacy, the court should have used other grounds, such as the 14th Amendment’s equal protection clause.

To some in the Jewish community, it makes perfect sense that Ginsburg, a pioneer in the field of women’s rights legislation, should find the right to abortion in the equal protection clause.

Ginsburg sees the case “through her own gender-discrimination-colored glasses,” said Michael Lieberman, associate director and counsel in the Anti-Defamation League’s Washington office.

Her arguments, some said, reflect the debate within the pro-choice community over the best way to ensure freedom of reproductive choice.


Another issue on which Ginsburg has taken a noteworthy stance is her 1984 dissent involving the case of S. Simcha Goldman, a Jewish soldier who contested a military policy barring him from wearing a yarmulka on duty.

Ginsburg wanted the full appeals court to hear Goldman’s case, but the majority of the court ruled the other way.

Ginsburg wrote that Goldman had “long served his country as an Air Force officer with honor and devotion.”

“A military commander,” she continued, “has now declared intolerable the yarmulka Dr. Goldman has worn without incident throughout his several years of military service.”

“At the least, the declaration suggests ‘callous indifference’ to Dr. Goldman’s religious faith,” she added.

Another controversial case in which Ginsburg played a role was that of Jonathan Pollard, the convicted spy for Israel who received a life sentence in prison.

Ginsburg was one of the judges who, last year, rejected Pollard’s appeal of his life sentence.

Pollard claimed his 1987 sentence was a miscarriage of justice. His lawyers argued that the government had violated a plea bargain agreement by implying its desire for the maximum sentence.

But Ginsburg and Laurence Silberman, another Jew on the three-judge panel hearing the appeal, rejected Pollard’s argument, while the non-Jew on the panel, Judge Stephen Williams, dissented from their ruling.

The Pollard case has divided the Jewish community, and most Jewish officials did not want to take a position this week on how Ginsburg’s ruling bears on her nomination.

One official expressing disappointment with Ginsburg’s decision in the Pollard case was Abba Cohen, Washington representative of Agudath Israel of America, a group representing fervently Orthodox Jews.

Most in the Jewish community say they are still not clear exactly what Ginsburg’s positions are on such issues as church-state separation and First Amendment rights.


But some feel her presence on the bench could change the court’s direction on religious issues.

Lieberman of ADL said the departure of White could tilt the court in the other direction in such cases as one last week, in which a slim 5-4 majority ruled that it is constitutional to use public funds to provide a sign-language interpreter for a deaf student at a parochial school.

That decision, in Zobrest vs. Catalina Foothills School District, split the Jewish community, and ADL was on the losing side.

Lieberman pointed out that White was one of five justices who did not find the practice to be a violation of the First Amendment’s ban on government establishment of religion, “in what we consider a clear violation.”

Cohen of Agudath Israel, who was on the other side of the Zobrest decision, also said White’s departure could tilt the balance of the court on religious cases.

Orthodox groups, unlike most of the Jewish community, have tended to agree with White’s support of government funding for religious institutions.

Jerome Chanes of the National Jewish Community Relations Advisory Council said his umbrella group planned to send a letter to the Senate Judiciary Committee expressing support of Ginsburg’s nomination but suggesting that the committee probe her views on church-state issues, including the so-called “Lemon test.”

The Lemon test, named after the 1971 case Lemon vs. Kurtzman, is a legal doctrine requiring all government activity and law to meet three criteria: its principal purpose must be secular; its effect must neither enhance nor inhibit religion; and it cannot involve excessive government entanglement with religion.

Many Jewish groups back the Lemon test because it provides a strict standard for ensuring separation of church and state. But some Orthodox groups oppose the doctrine because they feel it has created a climate hostile to religion.

Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, said Ginsburg’s record looks good on such issues of Jewish concern as the free exercise of religion, First Amendment rights and discrimination. He said that while her record on the establishment of religion clause is murkier, he does not foresee any problems.


Saperstein said Ginsburg does not tend to write lengthy concurrences or dissents, and therefore it is often hard to pinpoint her views on some issues.

But, for the most part, he said, “she’s going to be very strong on protecting the constitutional liberties the Jewish community cherishes so deeply.”

Jewish officials had positive things to say this week about Ginsburg’s stand on women’s issues and other issues concerning discrimination.

The fact that Ginsburg and her husband “took themselves out of clubs that discriminate tells you something about her thinking,” said Warren Eisenberg, director of B’nai B’rith’s International Council.

“Her stand on gender equity issues is legendary,” said Sammie Moshenberg, Washington representative of the National Council of Jewish Women.

Ginsburg, 60, has had some involvement with Jewish organizations in the course of her career.

She has served on the American Jewish Congress Commission on Law and Social Action and currently is a member of the International Association of Jewish Lawyers and Jurists, according to her husband, Martin, a professor of law at Georgetown University.

Martin Ginsburg told the Jewish Telegraphic Agency this week that he and his wife of 39 years sent their two children to religious school, but that when the Ginsburgs moved to Washington, their children were grown and the couple did not join a synagogue.

“We’re not wildly observant,” Ginsburg said, adding that at Passover, for example, he and his wife join more observant relatives at the seder table.

Last year, Ruth Ginsburg spoke at an AJCongress function honoring Justice William Brennan.

She traveled to Israel in the 1970s as part of a conference discussing the position of women under secular and halachic laws in Israel and America, her husband said.

And as a child at camp, he added, his wife held the position of “junior rabbi,” requiring her to lead occasional prayers on Saturdays.

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