The Law According To Ruth

It was 1959, and Ruth Bader Ginsburg was about to graduate from Columbia Law School, where she had transferred after two years at Harvard to be with her husband Martin. She had been an oddity at Harvard, one of only nine women law students in her class. She remembers wanting to drop through a trapdoor when the dean at Harvard asked her to justify taking up the place where a man could be. Still, she was surprised when being on law review at both Harvard and Columbia and first in her class at Columbia did not make her a sought-after hire. She remembers the humiliation after all these years. Last week, standing next to the President of the United States, who had just nominated her to be the 107th Justice of the Supreme Court, she said, "Not a single law firm in the entire city of New York bid for my employment."

But were it not for those doors clicking softly shut, one after another, at the leading law firms of Manhattan, Ginsburg, 60, might not have been standing in the Rose Garden and the course of American jurisprudence would certainly have been different. Steel entered her soul, says a judge who knows her, and she did not fall prey to what had stopped women for so long -- the sense that it was one thing to be the smartest student in the class but another to have that undefinable something men insist it takes to be a top-notch lawyer. She did not think her early success was a fluke nor exclusion her fate, and this most unlikely of firebrands took one of the few clerkships offered, for a district court judge in New York. She went on to teach at Rutgers while litigating sex-discrimination cases in her spare time.

One of her cases successfully challenged a New Jersey regulation requiring pregnant teachers to quit without any right to return to the classroom. She had faked her way through her second pregnancy at Rutgers by wearing clothes one size too large during the spring semester and giving birth in the early fall before classes resumed. Rutgers gave her tenure in 1969. In 1971 Harvard, which had decided it was time to consider adding a female to the faculty, offered her a job teaching a course on women and the law. When a full-time offer was not forthcoming a year later, she quietly packed her bags. She was not unemployed for long. In 1972 Columbia Law School hired her as its first tenured female faculty member ever.

All this while, her husband, Martin Ginsburg, was on his way to becoming one of the pre-eminent tax lawyers in the country (he advises Ross Perot, who endowed a chair at Georgetown Law in his name) and sharing the tasks of family life. The two had met as undergraduates during her first semester at Cornell when Marty gave a lift to a friend in his old Chevrolet to pick up a date who lived in the dorm room next to Ruth's. The minute Ruth graduated in 1954, they got married at his parents' house.

) At Fort Sill, Oklahoma, where Martin served two years in the Army, the couple had their first Ruth-cooked meal. The purported tuna casserole was, Martin recalls, "as close to inedible as food could be." He started studying a translation of French chef Auguste Escoffier as hard as his law books and became as fine a cook as an attorney. When they got back to Harvard, they shared child care as well, taking turns relieving the baby sitter every afternoon at 4. That began their lifelong practice of working well into the wee hours of the morning.

Forty years later, Martin is still cooking -- often for friends at the couple's duplex apartment at the Watergate, and sometimes baking the birthday cakes Ruth provides for her fellow judges. The Ginsburgs' oldest child, Jane, 37, who followed in her mother's footsteps to teach law at Columbia, got her father to prepare the family favorite -- vitello tonnato -- for her wedding in 1981. Their second child, James, 27, picked up on the Ginsburgs' other love, music, and produces classical records in Chicago while attending law school.

For millionaires, the Ginsburgs live a relatively simple life, with a six- year-old Nissan and a 10-year-old Volvo and no country house. On weekends Marty loads up the car with cooking utensils, herbs and golf clubs for getaways to the Victorian house of friends in Connecticut. Last Christmas they went water skiing in Jumby Bay, near Antigua. They go to Europe annually for conferences (49, as they totted them up for the FBI; Ruth may be the first Justice to speak Swedish). Who works harder? On a trip to Israel in 1977 Martin gathered up his suntan lotion, galley proofs of his law review article Collapsible Corporations: Revisiting an Old Misfortune, and made for the pool of the King David Hotel. Ruth headed straight to a debate on the comparative miseries of women under Israeli, Halakic and American law. She never saw water again on the trip.

On one front that has tripped up other nominees, the Ginsburgs appear blameless. Tracked down and asked to return early from a wedding in Vermont the day before Ruth was named, the Ginsburgs were met by White House lawyers at their apartment for a crash vetting. Martin was able to show records, in meticulous, Manila-folder order, of Social Security payments for everyone who had so much as touched a dishrag in their household.

The Ginsburgs have twice given up golf memberships because the clubs appeared to discriminate against minorities. They now tee off at the nondiscriminatory Army and Navy Club and at a Virginia resort where Ruth has been seen to spin her golf club around like the twirler she was at James Madison High School in Brooklyn, New York. She was also a cheerleader there, but since then there have been few sightings of her jumping up and down or with her hair not in her trademark bun.

In fact her essential characteristic as described by friends is her natural reserve. One friend says that she can be thrown by a simple "How are you?" And that silences while she searches for small talk can be painful. Lynn Hecht Schafran, a lawyer at the NOW Legal Defense and Education Fund, points out that her shyness makes some people think she is cold but that she simply has the innate 10-second delay of the careful lawyer. Says Schafran: "She thinks first and then speaks. She has learned to be unafraid of dead airtime." She is equally careful in her writing. A former clerk, David Post, says he'd often get a draft back from her "totally torn apart. Every word got examined, literally." At first, Post didn't like clerking for her. "It was very painful. But I'll be forever in her debt, because that's what the law is -- language."

Her unusually personal statement in the Rose Garden surprised even her closest friends, as Ruth the shy judge revealed the beaming grandmother, holding up an 8X10 picture of Clara being led in the toothbrush song during a nursery school visit by Hillary Rodham Clinton, whom Ginsburg did not know. Ginsburg closed her remarks with a tribute to her mother, who died young -- "I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve, and daughters are cherished as much as sons."

Ginsburg became a judge back in 1980, appointed by President Carter to the U.S. Court of Appeals, after she gained national acclaim as counsel to the American Civil Liberties Union. She had won five landmark cases before the Supreme Court and had taken a novel approach to expanding the scope of the equal-protection clause by suing on behalf of men in some cases. She argued, for instance, that widowers as well as widows were entitled to Social Security survivor payments and challenged an Oklahoma law that allowed women, but not men, to buy alcoholic beverages at 18. She also won cases arguing that dependents of women in the military should have the same housing arrangements as men and that it was unconstitutional to prefer the father over the mother as executor of a son's estate.

Ginsburg's nomination is likely to sail through the Senate despite concerns among liberals about the centrist position she has assumed on the Appeals Court (she has voted as often with the Republican appointees as with the Carter appointees). Women's groups are also worried over criticism the pro- choice Ginsburg leveled at the Roe v. Wade decision in a speech last March. She had contended that equal protection, rather than privacy, would have been better grounds and created less of a backlash. The strong reaction surprised her. Says Stanford law professor Barbara Babcock, who had dinner with her shortly after the speech: "She was hurt by people who should have been her friends."

By the 1990s she had come to seem like a relic of an earlier age to the younger women lawyers who now make up 24% of the profession (vs. 3% in the early 1970s), lovely to contemplate on a shelf somewhere but not as politically correct or savvy as the later models. Recently, Ginsburg and her friend Kathleen Peratis, a Manhattan lawyer, commiserated about "how we both were feeling like dinosaurs" when set beside today's feminist avant garde, who didn't experience sex discrimination in full bloom.

Liberals fear that her friendship with conservative Justice Antonin Scalia, with whom she served on the Appeals Court, might move her away from her natural allies, Justices Sandra Day O'Connor and David Souter. In an interview last year, Ginsburg said, "Nino is the best colleague I've ever had. He's so thoroughly engaging." In a widely quoted joke, Scalia once replied "Ruth Bader Ginsburg" when asked whether he would want to be stranded on a desert island with New York Governor Mario Cuomo or Harvard law professor Laurence Tribe. At a dinner party at her house shortly after the flag-burning decision four years ago, Scalia came in, sat down at the piano and pounded out You're a Grand Old Flag. Some of her friends are having none of it. At a holiday party last December to which Ginsburg friends of every stripe were invited, Scalia came in and liberals edged to the opposite side of the room.

Supreme Court Justices have defied predictions for decades, and certainly it is sexist to assume that Scalia would influence her rather than the other way around. While she may not be the consensus builder the White House promises -- she is a judge after all, not a politician -- it is intellect, not schmoozing, upon which good decisions rest. And she will not be intimidated by , the voluble Scalia. In 1989 Ginsburg publicly scolded him for language "that comes out excessively harsh," when he said Justice O'Connor couldn't "be taken seriously" after a major abortion decision.

The harshest criticism of Ginsburg has come from Harvard's mouthy Alan Dershowitz, who backed the unsuccessful candidacy of Judge Stephen Breyer to the Supreme Court. He quotes lawyers who say that she is "picky, demanding, academic and schoolmarmish." He dislikes any comparison with Thurgood Marshall since, he snipes, she simply argued "voguish cases in the '70s" from the safety of a "fancy New York office building" and never risked her life in the South. Still, championing feminist law before it was in vogue was professionally hazardous. "Being identified with women's issues was not always a badge of merit," says Judith Resnik of the University of Southern California law school.

It will be several months before she can go back to the sheltered life of a judge, where restraint and reserve are no impediment to greatness. For now, she must grit her teeth and glad-hand Senator Joseph Biden and accept the pocket-size Constitution that Senator Strom Thurmond, who voted against her nomination to the Appeals Court in 1980, presses on her. So many flowers have arrived at her apartment that she keeps the cards and sends the arrangements off to local hospitals.

A woman of the '50s, Ginsburg has never been able to count on men to give her a break. At Harvard she was even denied the diploma law schools frequently grant to transfer students as long as they attend for two years. When Ginsburg was named to the U.S. Court of Appeals in 1980, the school had a change of heart, but she rejected the sheepskin as 20 years too late. Too bad for Harvard, where Harry Blackmun, Antonin Scalia, Anthony Kennedy and David Souter received their law degree. With Ginsburg, they would have had their own majority on the court.