In her book, “In My Own Words,” the late Justice Ruth Bader GinsburgRuth Bader GinsburgProgressive group buys domain name of Trump’s No. 1 Supreme Court pick Democratic senator to party: ‘A little message discipline wouldn’t kill us’ Lincoln Project mocks Lindsey Graham’s fundraising lag with Sarah McLachlan-themed video MORE explained how feminism is, at base, a simple concept best captured in the 1972 song “Free to Be You and Me” by Marlo Thomas. That definition defined true feminism as allowing women to decide their values without societal dictates or limits.
This view sharply contrasts with some who define feminism as adhering to a type of liberal orthodoxy. Ginsburg never believed feminism meant removing the “feet off our necks” by her brothers only to have them replaced by the feet of her sisters. True feminism meant allowing women the freedom of choice to find their own voices and values in society.
That is why today’s nomination of a new Supreme Court justice is a testament not just to feminism but to Ginsburg herself. The women on President Trump’s short list all bear striking resemblance to Ginsburg in their independence and clarity of thought. Most, like Ginsburg, balanced family obligations with commitment to professional careers. The only difference is that these women reached different conclusions on how the law is to be read and applied. Clearly, many have good-faith objections on issues like abortion as inimical to women’s rights, but these women are part of the legacy of Ginsburg and her generation in the empowerment of women to reach their own conclusions.
Arguably, the nominee most like Ginsburg is Judge Amy Coney Barrett. Both Ginsburg and Barrett finished law school at the top of their respective classes. Both went on to teach at leading law schools and both started their careers with an emphasis on procreational rights and constitutional interpretation. Deeply religious, both have cited the importance of faith to their careers and convictions.
Like Ginsburg, Barrett has refused to yield to the zero-sum choice of family over profession. Indeed, Barrett has raised seven children (including two adopted children from Haiti) while ascending to national recognition as a brilliant lawyer and jurist. Both women earned a reputation for civility and what Ginsburg described as showing that “You can disagree without being disagreeable.”
The biggest similarity is that Ginsburg came to the Supreme Court with a well-defined, deeply rooted jurisprudence. She was one of the most consistent votes on the court in siding with liberal justices over decades of decisions. In the 5-4 equation of court splits, Ginsburg was the common denominator on the left. A former Supreme Court clerk of late Justice (and Ginsburg’s close friend) Antonin Scalia, Barrett holds the same profile as a jurist with a clear sense of the law and first principles that have shaped her decisions. The principles are different — but not the depth or independence of thought shown by both jurists.
More than any nomination in history, this is a celebration of conservative feminism. Indeed, the nomination comes almost to the day of the confirmation of the trailblazing Justice Sandra Day O’Connor. Yet, O’Connor was selected in part because her record was a virtual blank slate, without notable speeches, positions or opinions. Her vetting team relished the idea of a nominee who was a virtual unknown — a model used repeatedly by subsequent administrations. O’Connor told President Reagan that she could not even remember her position as a legislator on the repeal of abortion rights.
These women, however, have not been subtle or silent in their views. And that is why this nomination is the conservative feminist moment realized. For decades, conservative women have refused to accept that they have second-class status in the feminist movement. The famous “Declaration of Sentiments” signed by pioneer feminists in 1848 spoke to their independence and choices as much as those on the left. Indeed, the first cause of early feminists was to push through prohibition as part of the Women’s Christian Temperance Union, a cause hardly viewed as part of a liberal agenda.
The women on Trump’s short list have all distinguished themselves in claiming the mantle of that long struggle for equality. They fiercely defended values they see in the Constitution, and many overcame incredible obstacles to have their voices heard. For example, Judge Barbara Lagoa’s family fled communist Cuba with nothing, just a year before her birth. She would go from the tough streets of Hialeah, Fla., to graduate from Columbia Law School and become a judge on the 11th Circuit — all while raising three children. Judge Joan Larson is a blazingly brilliant jurist who graduated first in her class at Northwestern University Law School. She would become a law professor at the University of Michigan after clerking on both the D.C. Circuit and the Supreme Court — not too shabby for a kid from Waterloo, Iowa.
For all of his controversial statements about the court and the law, President Trump has selected remarkably strong nominees for the court. Some critics expected Trump to select “Judge Judy” for the court. Instead, he has favored highly respected conservative jurists with stellar records. They have not been blank slates but jurists with well-articulated legal principles. They also have shown a willingness to cross the political divide when those principles require it. This is why I testified in favor of the nomination of Neil Gorsuch, who I view as an intellectual of the first order. Both he and Trump’s second nominee, Brett Kavanaugh, repeatedly have voted against the Trump administration.
The short list for this nomination was equally impressive. These are highly qualified female jurists who have shown the courage of their convictions. They have academic and professional records that easily match those of President Barack Obama’s nominees Elena Kagan and Sonia Sotomayor. These are no empty-portfolio nominees but conservative women who have boldly spoken and written about their views on jurisprudence. Many tried to put a “foot on their necks” but none succeeded — no more than such figures succeeded with the justice to be replaced. They are precisely what Ginsburg liked about Thomas’s song: “Every boy in this land grows to be his own man. In this land, every girl grows to be her own woman.”
Many try to paint such jurists as “ideologues” because they consistently vote on the basis of a conservative viewpoint. However, by this same measure, Ginsburg also would be an ideologue who had one of the lowest number of defections to the other side in major cases. In the Kavanaugh hearing, Senator Sheldon Whitehouse raised this issue, asking: “When is a pattern evidence of bias?” Whitehouse alleged a voting pattern by the “Roberts Five” — “Republican appointees” who “go raiding off together” and “no Democratic appointee joins them.”
But he ignored the “Ginsburg Four” on the other side of every one of those opinions. They were not viewed as ideologues by Whitehouse because, of course, they were deemed to be right. In reality, despite Whitehouse’s complaint and those of his Democratic colleagues, Gorsuch and Kavanaugh have voted repeatedly with their liberal colleagues in major decisions.
This nomination, then, is a great personal moment for the nominee but also a historic moment for conservative feminists. They are all part of the “you” that went with the “me” in Ginsburg’s definition of feminism.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.