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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. As we continue to remember the legacy of US Supreme Court Justice Ruth Bader Ginsburg, who died on Friday, arguably the most prominent liberal defending abortion rights, affirmative action, and other civil rights and liberties as part of the courts increasingly slim left wing. She was appointed by President Clinton in 1993. I want to play a little bit of Justice Ginsburg's confirmation hearing from 1993 before we bring in our race and justice editor, Jami Floyd, who does supreme court analysis on this show as many of you know.

We have the luxury on this two-hour show of a little bit of length, not just your usual media soundbite length. This is a three-minute clip of nominee Ruth Bader Ginsburg, who is being questioned by the chairman of the Senate Judiciary Committee, who in 1993 was Joe Biden. Today, it's Lindsey Graham. In 1993, it was Joe Biden. We pick it up as then appeals court judge Ruth Bader Ginsburg is talking about her notion that the constitution is a living document that can be interpreted to apply to some of today's specific issues.

Ruth Bader Ginsburg: The most eloquent speaker on that subject was Justice Thurgood Marshall when during the celebration of bicentennials, when songs of praise to the Constitution were sung, he reminded us that the Constitution's immediate implementation, even its text, had certain limitations, blind spots, blots on our record. He said that the beauty of this Constitution is that through a combination of interpretation, constitutional amendment, laws passed by Congress, "we the people" has grown ever larger. Now it includes people who were once held in bondage; it includes women, who were left out of the political community at the start. I hope that begins to answer your question that the view of the framers, their large view, I think was expansive. Their immediate view was tied to the circumstances in which they live.

Joe Biden: It does answer the question and I'm delighted, be very blunt about it, delighted with the answer. As I've indicated to you and I've said on numerous occasions over my 20 years in the Senate, that I do not expect a nominee nor demand a nominee to agree with me on substantive issues, but it does make a difference to me and give at least me some insight into the view of the past history and the future of this nation that a nominee has, the vision they have. If I know from which they think, the place from which they believe, our rights are derived, and you have made a fundamental distinction from other nominees that have been before this committee in the past decade.

One of which was, not all, but one in particular. As you're emphasizing-- First of all, you acknowledged there is a ninth amendment. You have no idea what a milestone that is in this committee. I'm being a bit facetious, but we had one nominee who said the ninth amendment was "Nothing but an inkblot on the constitution." Your emphasis and that the whereby we derive the courts over the years have derived, they expanded a concept, which at the time it was written, did not embrace a specific circumstance. You've indicated as I understand your answer, that you start off with the position, as I happen to share, that this is a limited government. We do not derive our rights as human beings from a piece of paper called the Constitution. The government derives its rights from "we the people".

Brian: Ruth Bader Ginsburg at her confirmation hearing in 1993 with Senate Judiciary Committee chairman, Joe Biden. Interesting to hear both of them in that clip. With us now, WNYC is Jami Floyd, our senior editor for race and justice, who among many other things that she has done has covered Ruth Bader Ginsburg for 25 years, and met her more than once over the years. She joins me now. Hey, Jami. Thanks so much for coming on with us. I know you've been working all weekend on this.

Jami Floyd: Yes, indeed. Thank you for having me, Brian.

Brian: Can you reflect first on 1993 and the confirmation hearing in general or the clip we played; what does it tell us about anyone's relationship to the Constitution, including Joe Biden's?

Jami: It tells us so much. I had been in that chamber for the suitor confirmation first. At the very first, I'd covered in a way for my law journal at Berkeley law and for the Thomas confirmation hearings, which of course we all remember famously and infamously. Biden, the chair of the judiciary committee then. Then this one, which I did not visit. I had the honor of meeting Ruth Bader Ginsburg when she was being vetted for this seat because I happened to be working in the Clinton White House at the time and made it my business to meet this extraordinary woman, who would become the "Notorious RBG".

It tells us a lot because there are these different visions of the Constitution, Brian. The living, breathing document that Justice Thurgood Marshall, my hero along with RBG and others, Constance Baker Motley, and we could name many others who believed that the Constitution evolves to protect them rights of the minority against the tyranny of the majority. As she said eloquently there, expands, breathes, and embraces more and more of those who have been previously excluded. It is the Constitution that is aspirational even though it killed us along the way in its evolution since our revolution.

Then there are those who are textualists, those who very closely to the words and the text, and what may be the founders were thinking when they wrote it. Let's look at the contemporaneous writings of the founders and the language doesn't say this and the language doesn't say that and who are those people? Clarence Thomas clearly, Justice Scalia was one; a brilliant thinker, but very much a textualist with some exceptions. Justice Alito. This is the left, the right, the liberal, and the conservative. I don't like those labels, but it does help to explain what we're talking about. There she talks very much in the tradition of Thurgood Marshall, who was the champion of the living, breathing constitution, and Joe Biden underscores his faith in that vision of our constitution and our country.

Brian: By the way, they were book showering love on the ninth amendment.

Jami: Yes. [laughs] That was interesting.

Brian: We don't hear about that one in the news very much.

Jami: No, we don't. It was interesting. That clip was really something that you play that it's one that we don't hear often and it sheds light both on Joe Biden and Ruth Bader Ginsburg. It's the enumeration in the Constitution of certain rights. I can read it too. It's very short quote, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". I can't say it any better than Joe Biden just did.

The bottom line is that the document itself doesn't give us rights. We the people have the rights. None of the three branches of government have more power than the people. We the people have the right. We the people are this democracy. That's the vision of the ninth amendment, at least as I interpret it and clearly as Joe Biden interprets it. I think as Ruth Bader Ginsburg would have interpreted it. I have not gone through her writings in anticipation of a conversation today about the ninth amendment, but I think it's fair to say that is how she would interpret it. That colloquy they just had suggests that they shared that view of the ninth amendment.

Brian: Listeners, what did Ruth Bader Ginsburg mean to you? We mentioned earlier in the program when we were doing the political analysis around the battle over who's going to be the next justice in that seat, that we would take your calls later in the show and now we're here for what Ruth Bader Ginsburg meant to you.

Simply call us and tell us how she influenced you. You can just say anything you want to say. What did RBG mean to you? 646-435-7280. 646-435-7280 or tweet a thought @BrianLehrer. Jami is someone who has covered her for 25 years. Do you want to get personal at all and say what? It's really personal-professional, but what RBG meant to you?

Jami: Yes, sure. I was born, Brian, the same year. I think you know as the Civil Rights Act was passed. I grew up on the Lower East Side on the FDR Drive. We're talking the 1970s in New York. We were still called Bowery kids. Handball, piragua, Chinatown, a little Italy right there too. Brian, the courts were within spitting distance of my neighborhood. When I would go walking with my father, I saw those big-- because he walked me to school and we'd pass the courts and I saw those big limestone columns. I got it into my head that I wanted to be a lawyer, but I was told not to go to law school. "You're just not going to make it kid. Be a legal secretary. That would be very accomplished for you as a woman, especially as a Black girl."

There were these women who came before me to help me believe in myself and Ruth Bader Ginsburg was one of those women. What does she mean to me? The fact that a Bowery kid could grow up not only to become a lawyer but to see these women. First, Sandra Day O'Connor, of course, and then Justice Ginsburg joined the US Supreme Court. They called themselves, Brian, sisters in law, by the way. That's what gives me faith, even as a Black woman in this country, that's what gives me faith in this country. I have a little clip if you don't mind, Brian of Ruth Bader Ginsburg talking about her faith in this country to do right by women.

Brian: We don't have that clip right up, we will get it.

Jami: All right, that's fine. Anyway, it was another clip. We just heard her in the confirmation hearing. It was another little clip of her talking about her expectations for the US Supreme Court and women in her lifetime. Also in terms of BIPOC, people of color, she didn't use BIPOC, but on the bench back in 1993 and her visions for diversity in the courts at her confirmation hearing. Brian, I'll just say I was fortunate to meet her as you've noted because I was working in the Clinton White House.

I will say, Brian, when you asked me, what does she mean to me? For me, it's not just about RBG, and that is the way she would have wanted it. It's about the arc of history, which she wrote about in her dissent in Shelby vs Holder, the voting rights case back in 2013, it's about the fact that a Bowery girl, a little kid from Loisaida, as we used to call it, will grow up not only to become an attorney, but to see these women defy expectations and to have the privilege of knowing these women Justices O'Connor, Ginsburg, Kagan, and Sotomayor, that I could come from the Lower Eastside and then sit in the presence of these great women. That is a sign that our founding documents are more than aspirational. That is the sign that the moral arc of the universe is bending towards justice as Justice Ginsburg believed.

Brian: Now we have that clip.

Ruth Bader Ginsburg: In my lifetime, I expect to see three, four, perhaps even more women on the high court bench; women not shaped from the same mold, but of different complexions.

Brian: Yes, and she said that back in 1993.

Jami: She had seen that. She believed also that true equality would be reflected in a court of nine women. A court of nine women that would not be exceptional. That would be just as normal as all the courts we've seen composed entirely of white men. That day will come. [laughs]

Brian That would be one form of mathematical justice.

Jami: Yes.

Brian: We had 200 years of only men on the supreme court, almost 200 years of only white men on the supreme court. How about 200 years of only women on the supreme court, and then we'll go 50-50.

Jami: [laughs] I think she would enjoy that proposition, Brian.

Brian: Lynn in Bay Ridge. You're on WNYC with Jami Floyd. Hi, Lynn.

Lynn: Hi. Good morning, Brian. Thank you for taking my call. I'm a regular listener of your show and I've learned so much from all your interviews. Thank you.

Brian: Thank you so much. Thank you.

Lynn: I have a very special memory of Justice Ginsburg. We all know by now that Ruth Bader Ginsburg grew up and went to school in the Midwood section of Brooklyn. She attended PS 238 where I taught and was a school librarian for almost 20 years. During that time, I was given the opportunity to reopen and organize a renovation of our school library. When that was completed, our principal, Lawrence Herstick, suggested we renamed the library in Justice Ginsburg's honor.

Afterward, she was invited to visit her former school for a dedication ceremony in the library. She then attended an assembly program for the whole school where she spoke, was lauded by her former classmates who were there, and was asked questions by our students. She was very soft-spoken and modest but imparted many important messages to the children. She said she loved to read as a child and she learned everything she knew from books and that quote is on a plaque in our library of PS 238.

More significantly, I think, was the idea that if you work hard enough and are determined, you can accomplish great things. I'd like to think that this inspired many of our children. It was really a thrilling day for all of us and very memorable. Something that I remember 25 years later.

Brian: That is such a great story, Lynn. Thank you very, very much. Jami, is there anything we haven't heard about Ruth Bader Ginsburg's childhood that you think about that my shed some light on the justice she became?

Jami: It's interesting that we just got a call about that library because her mother, Celia, was very committed to Ruth's education and played an active role in her daughter's education, taking her off into the library. It dovetails with one of the things I wanted to mention. Ruth was very, very smart. She went on from her public elementary school to high school, James Madison. She graduated early at age 15. Sadly, her mother died of cancer the day before Ruth graduated. Celia Ginsburg laid that groundwork for her daughter's path to the supreme court, instilling that love of books.

It's interesting that you ask about her childhood. There were formative events in her childhood and stop me, Brian, if you want to take a call, but I'm going to mention two that I know of; two that people don't talk about much. One was the death of her older sister. Ruth had an older sister, Marilyn. Marilyn is the one who nicknamed her Kiki. We've heard about that nickname a lot, but many don't know that she was nicknamed by her older sister, Marilyn, because she kicked a lot when she was a baby. When Ruth was still a baby, just 14 months old, Marilyn died of meningitis.

I have to tell you, Brian, that I had two very special moments, personal moments with Justice Ginsburg. One was in the 1990s. Shortly after I met her briefly in the White House when she was being vetted. Then I met her at a luncheon shortly after she'd become a supreme court justice way before she was this pop icon RBG. The subject of only children came up, whether to have more than one child. This is when people were still talking about that as an issue. Now it's very much the norm and several people, including myself and Justice Antonin Scalia, were discussing the relative, he was an only child by the way and had nine children of his own, the relative merits of being an only child.

Then there was a lull in the conversation, a rare thing when Justice Scalia was present. Justice Ginsburg quietly inserted that she had not born an only child, but had been raised as if she were one because her sister had died when she was very small. I remembered that phrase "very small" and I still do now all these years later, Brian, because the humanity of that phrase "very small". Not when I was a baby or when I was little or when I was 14 months; when I was very small, the humanity of that.

Until then, Brian, I'd always thought of her and all of the justices as scholars, as intellectual people. I didn't think of them beyond the veil of the bench. It just hit me. "Wow. They're people. They have real-life tragedies, struggles, burdens that we have." I'll make this one really quick. 10 years later at, also in Washington at a luncheon at the chamber of commerce, I was making some small talk and mentioned that my mother had been named Joan, but changed her name. Then Ruth Bader Ginsburg said-- I didn't know this at the time, I now know, that she too had been named Joan. Her real name was Joan Ruth Bader, and then Ginsburg by marriage. Joan was a very common name in the 1930. She was born shortly before my mother and her mother had decided that she should be called Ruth at some point along the way because there were many Joans in that neighborhood.

Brian: So many Joans.

Jami: Yes, so many Joans. There you go. She had this way of looking--

Brian: Everyone will answer when she shouts out the window, "Joan, time for dinner."

Jami: She had this way, Brian, of looking her eye. She had these very piercing eyes and she would look you right in the eye and as our caller said, she was quiet and soft-spoken, but she would look at you with these eyes, even if she was going to make a rather light funny comment about her name. You listened, you leaned in and you listened, and that's how she caught your attention with her intellect and those eyes.

Brian: We have some callers who have stories of personal connections with Ruth Bader Ginsburg. Jami, hang on. We're going to take a short break and come back and take some of those callers with you. Brian Lehrer on WNYC.

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Brian Lehrer on WNYC with our senior editor for race and justice, Jami Floyd, who covered Ruth Bader Ginsburg for 25 years. Let's take a phone call from someone who had a personal connection with her. I think appeared in her courtroom. Spencer in Safran. You're on WNYC. Hi, Spencer.

Spencer: Hey, Brian. I was being arrested in the late '90s by the police for making my art on the streets. I photograph hundreds of nude people for my artworks and my lawyers to prevent myself from being arrested, sued the police commissioner and the city. My case worked its way up to the supreme court where Ruth Bader Ginsburg decided to rule in my favor and uphold the federal court's decision for me to be able to make my nude work.

A few years later, I saw her at the museum. I didn't know it was her. It was an older woman, my mother's age and she was standing in front of my work talking about it and she knew more about it than anyone I had ever known. Then I was introduced to Ruth Bader Ginsburg, standing in front of my work, and she turned to me and she said, "Just don't do it in front of the supreme court."

[laughter]

Brian: What a moment? That's a souvenir moment for the rest of your life, right?

Spencer: Yes, definitely. I think maybe it was a message. [laughs]

Brian: Spencer, wonderful story. Thank you very much. Linda in Hempstead. You're on WNYC. Hi, Linda.

Linda: Hi, it's Linda Longmire. I have a wonderful-- Well, I have a batch of stories actually, but I'll share one because I had to direct Hofstra University summer law program in Sorento, Italy in 2007, I think it was. Where Justice Ginsburg was team teaching with Leon Friedman, also a great civil rights attorney. I had to direct the program at the last minute because there had been some personnel changes.

I had to meet her at the airport with all the security and I was of course excited about this because she had always been a heroine. One of the things that, because we spend every meal together, every adventure-- First of all, she was so energetic, was extraordinary. I put some gaps in the itinerary for her to rest up. She was teaching in the morning, wanted to adventure out in the afternoons and evenings.

She was adamant, "No, fill up every spot in that itinerary." She had so much energy, but she was this tiny person, but so full of life and passion. She knew many things. She had literacy in many fields; was interested in archeology. We talked about Birdman film. She was extraordinary in the breadth of her knowledge and yet the depth where she could go into such incredible detail. She had an amazing memory.

The image, I think, that I'll always have, and it was about two things. One, her compassion, and one of our excursions up I had gotten carsick and here I am supposed to be hosting there a little party of eight. There were four professors and spouses. I had gotten up to go into the bathroom to just stop being nauseous. She is the one who prided in and was kind. She said, "Don't worry. Not a problem. Are you okay?" Then went back and then I remember sitting down at the table and not wanting to eat the food. [laughs] It was probably one of the best deals I would have had in my life, but I couldn't eat it. She just leaned over and said, "My mother used to tell me, 'You don't have to eat it all. You just have to pay for it.'" I thought that was reassuring.

Then the other image though that I'll always have of her was that Justice Scalia had taught in our Hofstra law program this summer before. She had a long list of things that he had recommended she should do and see while in Sorento, but an Italian-American organization had rented a big yacht for him when he was there. Of course, they had taken a tour of Capri and going out for a day. She wanted to do that, but we had a brand new dean at Hofstra that's why I was covering all of this. I had no clear discretion to go out and rent a boat, let alone a yacht. I thought, "Oh no, what am I going to do? This is a problem. She really wants to do this."

Finally, I remembered the US embassy official at the airport lived in the area and she had lots of contacts. I called her. I managed to find a boat, almost a yacht, not quite, but good enough. We went out, again our group of eight, and she just had a glorious time. What was so wonderful, she was dealing with still working while there. Always dealing with everything from death penalty cases to urgent business of the country and in all fields. I'll always have this memory that she was able to just lay down these great burdens at the last minute. All of the things she was dealing with and I saw her go to the front of the boat, bear at the bow, looking out and it was moving because it was just-- she was pointing ahead, pointing to the future. I always remember her that way.

Brian: Another beautiful moment. Wow. My vacation with Ruth Bader Ginsburg, not many people can say that. Linda--

Linda: It was hardly--

Brian: Sorry. It was what?

Linda: It was hardly a vacation. I also had to deal with wild law students, but it was a glorious time and I was grateful for it. [chuckles]

Brian: Yes. Some of those moments sounded like vacation, but I gather, I get it. You were running the thing. Linda, thank you so much. Those are two pretty remarkable stories, Jami. They point to among other things that, how it seems that everyone, including Ginsburg's ideological opponents agree that she was exceptionally smart. We heard the first caller talk about how she knew so much about the art. The second caller was talking about her riffing on foreign films and everything and everything.

Jami: That's right. I got to say the first caller really underplayed both his art and his case. That was Spencer Tunick. He's a photographer and installation artist. He's world-famous. The case was hugely significant. He goes around the world taking pictures of nude people in groups. Sometimes thousands of participants in a single work. The case was the Grab Them By The Ballot case because it was a voter turnout initiative that went viral back in the '90s before we even use that phrase.

She did write the opinion. As he was speaking, this is 1994 that he was arrested multiple times in New York as he said. The case was a 1995, I think, spring opinion. I'm not looking at-- Actually, I probably could be looking at the case since I have a computer in front of me, but still, in my mind, Brian, as he was speaking, that's how significant the case was. As he was speaking, I was trying pull up his last name because that's how well known he is and that's how significant the case is. She wrote it, Brian. It's not just about art and it's not just about politics, it was a case about gender parody. In other words, the law under which he was arrested had to do with the nudity of women, not of men.

The question was, can you punish someone if only women cannot be naked but men can walk around with their shirts off? In other words, we've heard these cases before. Can women exercise without their shirts on if men can exercise without their shirts on? It was a gender parody case as much as it was a political speech case. It was about the female breast. It was about this famous, famous artist. There were a lot of briefs filed in support on his side. It was amazing that he called in. It was quite a story as was the second caller.

You're right. Her political opponents, the Federalist Society, Brian, as we know, they're organizing right now to secure the nomination and appointment of her replacement, but even they have been on the airway saying that she was a brilliant woman, that she was respected and honored, that when she would come to the Upper House, people would stand and applaud people of all political persuasions. It's famously known that she and Justice Scalia were close friends. She is well-regarded across the political-- One of the things in our country that is splitting us apart as a democracy is this political divide. One of the things that seems to unite us is the agreement that this woman was a brilliant thinker committed to her country and in service of it throughout her political life.

Brian: To your comment about gender parody as central to the Spencer Tunick case, let me play one more Ginsburg clip for you. This is from her confirmation hearing in 1993 again. In this case, she compared laws that discriminate against Black Americans to laws that discriminate against women.

Ruth Bader Ginsburg: I tried yesterday to trace the difference between racial distinctions, Jim Crow laws, which were not obscure in the message that one race was regarded as inferior to the other with gender classifications that were always rationalized as favors to women. My position was constantly these classifications must be rethought. Are they genuinely favorable or are they indications of stereotypical thinking about the way women or men are?

Brian: Jami, that's a point of law that I think most of the listeners have never thought about. I have a feeling that you have this premise, if I understood her correctly, that some conservatives rationalized laws blocking women from certain professions and other kinds of official gender discrimination as somehow protecting their right. Maybe the nudity not being allowed to be shown of women, but yes of men is an example of that, but no such subtlety of thought was considered necessary in the many laws barring Black Americans from all kinds of things. What do you think about that clip?

Jami: I'm going to answer this in a way that may be different from what you would expect, Brian. We've worked together for many years, but I'm going to take this a little differently. There's that famous exchange after the Shelby case between Justice Sotomayor and Justice Roberts.

Brian: The voting rights case.

Jami: The voting rights case, 2013. I remember speaking with John Lewis, the late great John Lewis about his devastation in the wake of that case which gutted, in large part, the voting rights case. I think it's just this Ginsburg's greatest dissent, honestly, in my humble opinion. In dissent, the power of dissent is important because Justice Ginsburg famously said, "We write dissents for the future in the hopes that our language and our words in dissent will be used to craft future opinions."

Here's how I'm going to answer it, Brian. Justice Sotomayor reading from the bench in that case, says to Justice Roberts, "It's not purely intellectual this exercise of jurisprudence, it's deeply personal." She said that in other opinions too in affirmative action cases. I think Justice Ginsburg and getting back to the divide we talked about at the very top of this conversation about, is it a living, breathing document for you or are you a textualist? The liberals, for want of a better term, come at this from their humanity.

This is a woman, Ruth Bader Ginsburg, who knew that her mother had been denied a college education when her grandparents sent her brother to college instead. They could only afford to send one child. This deeply affected Ruth. She knew this about her mother, Celia, who was brilliant but hadn't had that education. Then Ruth graduates at the top of her class from Columbia. Those students Columbia Law, those students are virtually guaranteed clerkships in the US Supreme Court, but what happens? She doesn't get one. Justice Frankfurter rejects her because of her gender. This had to sting Brian. He should have known better. He was Jewish. He should have understood discrimination, but he didn't understand that. He didn't transfer that to gender, at least, in the context of his law clerk.

Over and over again, this sense of discrimination, of oppression of minorities is reinforced for her in the lessons of her childhood, in the lessons of her professional life. I would say, Brian, that while she was most assuredly an advocate for women, most of all, she was an advocate for equality, for all people. She could understand that the rights for women were rights for African-Americans, were rights for Native Americans, were rights for the disabled, and for LGBTQ. The Constitution is about access to equality and she felt to her core that if we could just aspire to that equality and in someday achieve it, our nation would be that most perfect union.

Brian: Wow. Jami Floyd, WNYC senior editor for race and justice. Thank you so much for coming on with all your knowledge and even personal experience with Ruth Bader Ginsburg. You know, two weeks from today, the Supreme Court opens in session for the fall.

Jami: I know.

Brian: Going to be even more charged than it would have been before. Maybe set a little time aside for us on Monday, October 5th. I'll maybe talk to you then if you're free.

Jami: Yes. I'll end by quoting Ruth Bader Ginsburg, "Real change, enduring change happens one step at a time."

 

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