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Ginsburg has liberal social views, cautious judicial style

During the months when President Clinton was considering a new justice for the Supreme Court and a wide range of well-known liberals were being discussed, Justice Antonin Scalia's law clerks sought to learn his preference.

"If you had to spend the rest of your life on a desert island with Mario Cuomo or Laurence Tribe, which would you choose?," they asked one day at lunch, referring to the governor of New York and the prominent Harvard law professor.

The high court's conservative intellectual had a quick answer. "Ruth Bader Ginsburg," said Scalia, who served four years with her on the U.S. appeals court in Washington.

As Scalia's admiring quip suggests, Clinton's nominee will provide the court with something it now lacks _ an articulate liberal jurist who is fully capable of matching wits with the high-powered and assertive conservatives.

Since the 1990 retirement of Justice William J. Brennan, the court has been without an influential advocate for constitutional rights. "She will add some intellectual force to the left side of the court," said Georgetown law professor Susan Low Bloch.

Perhaps equally important, Ginsburg brings to the court a preference for a one-step-at-a-time style of judging, one that seeks to avoid or minimize abrupt and sweeping changes in the law. As a result, she could prove far more effective than a less restrained justice might in winning the support of the court's all-important swing votes _ Justices Sandra Day O'Connor, Anthony Kennedy and David Souter.

"She's a judge's judge. She likes to decide in narrow, incremental way," said University of Chicago law professor Cass Sunstein.

So what does that combination _ liberal social views and a cautious judicial style _ mean for the future of the court?

First, Ginsburg is likely to cement a majority in favor of striking down most, but probably not all, restrictions on abortion.

If confirmed, she will replace Byron White, who favored throwing out the abortion right entirely.

Last year, a 5-4 majority of the court announced it intended to strike down any laws that placed a "substantial obstacle" on women seeking abortions. The court will soon face cases that test that principle.

Second, she is likely to strengthen the court's stand against sexual harassment and gender discrimination.

In the fall, the justices will reconsider a lower court ruling that dismissed a woman's complaint of repeated sexual harassment on the job because she had not suffered "severe psychological injury." With Ginsburg on the court, the justices are more likely to reject such a rigid standard for finding a violation.

They have also agreed to rule on whether trial lawyers can exclude women from juries because of their gender and whether an anti-racketeering law can be used against organized abortion protesters who seek to shut down clinics.

"She will represent a sea change from Byron White," said Janet Benshoof, director of the Center for Reproductive Law and Policy in New York, noting that the retiring jurist rarely supported women's rights.

Third, Ginsburg may lead a new consensus on outlawing discrimination against lesbians and gays. In recent years, the court has avoided that topic, but will likely face the issue soon.

Northwestern University law professor Jane Larson says she believes Ginsburg will vote to strike down anti-gay ordinances as being unconstitutional. In 1986, White wrote a 5-4 majority opinion that upheld anti-sodomy laws and dismissed the notion that the Constitution protects the freedom of homosexuals.

Ginsburg "has said that society could not base its laws on irrational stereotypes about women. She would not accept intolerant stereotyping of people. I think she will take the same approach with gays and say that laws cannot stand if they are based on irrational bigotry," she said.

During her career as a lawyer and judge, Ginsburg has fiercely championed the view that the Constitution forbids government from enacting laws that restrict a woman's right to full equality, including regulations that restrict access to abortion.

As director of the women's rights project for the American Civil Liberties Union, Ginsburg insisted that the Constitution did not permit government discrimination based on gender. In a half dozen cases over a decade, she made that argument before the high court.

"There is no question she is the Thurgood Marshall of this nation on the issue of gender equality. She forced the court to consider the reality of women's lives," said Benshoof.

Her preference for gradualism is likely to be well received by her colleagues, especially O'Connor, Souter and Kennedy. Last year, they broke away from their more conservative counterparts and insisted that the court follow a cautious, case-by-case approach to resolving controversies.