Ruth Bader Ginsburg questions whether she could be picked today for the U.S. Supreme Court, given the polarization in Congress, she told a law school audience Friday afternoon.
“Frankly, I wonder if a president would even nominate me today, considering my long affiliation with the American Civil Liberties Union,” Ginsburg told several hundred students and professors at Thomas Jefferson School of Law in downtown San Diego.
“I hope one day we will get back to the system when I was nominated and Justice Stephen Breyer was nominated,” the justice told a question and answer session at the 13th annual Women and the Law conference titled “Her Honor: Women in the Judiciary.”
“I hope people see that the way we are heading now is wrong. We should reverse it and go back to the way it was when there was bipartisan support of the president’s nominee.”
She noted that Southern conservative Strom Thurmond voted for her nomination even though he had opposed her two years earlier when she was named to the U.S. Court of Appeals.
Ginsburg, who turns 80 in March, praised former President Jimmy Carter for his efforts to change the “complexion of the judiciary.”
After Carter commented that he looked at judges and thought they all looked like him, he added minorities and women to the district courts and courts of appeal, she said during 75-minute forum.
Calling the current Supreme Court a “very lively bench,” she said her sisters on the court are “not shrinking violets. They are active participants.”
She joked: “I do think that Justice (Sonia) Sotomayor is in competition with Justice (Antonin) Scalia to see who can ask the most questions.”
Speaking about women’s issues, Ginsburg told the young law students, “The [Equal Rights Amendment] was a very important symbol, and I hope one day that it will become part of the Constitution” because “there is no statement that men and women are of equal stature under the law.”
In a third-floor lecture room, she related stories about historical discrimination against women in work and military settings.
Ginsburg—the second woman on the Supreme Court after Sandra Day O’Connor—said “explicit gender-based discrimination is gone,” but she spoke of an AT&T discrimination case in the 1970s in which men hired other men because “they were comfortable with someone who looked like them. They trusted that person.”
“This unconscious bias is harder to overcome,” she said.
“It belongs in the Constitution,” Ginsburg said of the ERA. “It is a value that is as fundamental as the ones that are already inscribed.”
Asked if she thought court deliberations and decisions were different now with three women on the bench, she quoted a former justice: “At the end of the day, wise old men and wise old women will reach the same judgments.”
But Ginsburg added that each justice adds his and her life experiences—such as growing up female—that can help colleagues understand differences.
She recalled a case several years ago involving a 16-year-old girl who was suspected of having drugs and was strip-searched in a girls locker room.
“Several of my colleagues made light of it,” she said. The male justices recalled changing clothes in the locker room without a thought.
“I spoke about the embarrassment that this would cause in a girl,” Ginsburg recounted. “And suddenly the jokes stopped and they took it seriously.”
Ginsburg called this term an important one for the high court, mentioning the cases including a challenge to the Voting Rights Act, one dealing with DNA samples taken from everyone arrested, Proposition 8 on California’s ban on same-sex marriage and another case involving the Defense of Marriage Act.
A law student who attended President Barack Obama’s second inauguration spoke about an abortion protester in a tree who screamed loudly, making it difficult for those around him to hear the event.
The student asked whether the man’s outbursts were protected under the First Amendment.
Ginsburg first joked that she didn’t hear the protester because she was seated in another area, but then said: “I am glad that we prize speech; we protect even the speech we don’t like.”
Ginsburg said the Supreme Court is a venue for numerous protests, adding that while Justice Elena Kagan has a “front-row seat on all protests,” Ginsburg’s chambers are in the rear of the building.
“As long as they aren’t endangering anyone’s safety, I hope that we will continue to preserve their right to speech that we don’t like,” said the justice since 1993.
Asked if she had any unfinished business, the justice said she doesn’t intend to write her own book.
“There will be a lot written about me, like it or not–mostly not,” she said with a smile.
After the session, Ginsburg talked about Justice Sotomayor’s new book.
In a separate Patch interview, Ginsburg called the biography a “real page turner. I hope that it will be widely read. It’s a great-written story.”
She said she is a third of the way through the book and thinks it’s “wonderful.”
Asked by a law school official about her dissent in the 2010 Citizens United campaign finance ruling, Ginsburg said it was a “very wrong decision” that may be overturned by a future court.
“As a great man once said, ‘It’s not over until it’s over.’”
She later told Patch such a ruling was more likely than a constitutional amendment since such changes to the Constitution are “powerfully hard” to get approved.
A student asked her opinion about cameras in the courtroom, and the justice said that if proceedings were televised, “it would give people the wrong impression of the appellate process, which is mostly writing” and justices trying to persuade each other.
“They will see two lawyers and think the most able advocate will win. That’s not the way it works.”
Ginsburg, who earlier spoke at the U.S. Grant Hotel to the San Diego Association of Business Trial Lawyers, called being a justice the “best and hardest job I ever had.”
“It’s not as easy as it once was,” but added she will remain a justice “as long as I am able to do it.”