Did Supreme Court Justice Ruth Bader Ginsburg ever condone pedophilia? I argued in a Sept. 16 Chatterbox ("Lindsey Graham's Smear") that she did not. Eugene Volokh of UCLA Law School and Edward Whelan, president of the conservative Ethics and Public Policy Center, take issue with my case. They remain wrong, and I remain right.
To review: The source of the trouble is Sex Bias in the U.S. Code, a booklet co-authored by Ginsburg and published by the U.S. Commission on Civil Rights in 1977. In this booklet, an earlier version of which is available online, Ginsberg praised a proposed Senate bill that would have altered the federal law governing rape. Here's the part of the booklet that got Sen. Lindsey Graham, R.-S.C., hot and bothered during the confirmation hearings for Chief Justice nominee John Roberts:
18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.
Twelve years old? Lock up your daughters!
Or rather, lock up your children. As the title of the booklet announced, its purpose was to propose ways that existing federal laws could be rewritten to render them gender-neutral. That is the part of S. 1400 §1633 that interested Ginsburg. Why she included the language that seems to put the age of consent at 12 is a bit of a mystery, because it wasn't relevant to her point. But common sense dictates that if Ginsburg had really wanted to invite 12 year-olds to go all the way, she would have stated some reason. She didn't. She didn't discuss the age of consent at all. Ergo, it was an untrue smear for Graham to say, "She wants the age of consent to be 12." (As even Volokh points out, Graham didn't bother to put the accusation in the past tense, even though Graham surely doesn't know Ginsburg's views on this subject today.)
Volokh and Whelan insist that in praising S. 1400 §1633, Ginsburg was praising the lowering of the age of consent. "Noah is correct that Ginsburg's focus was on eliminating the sex bias in then-existing law," Whelan concedes, "but the fact that her ideological blinders apparently led her to propose the radical changes she did is significant." But it simply isn't true that Ginsburg was proposing the language she cited; rather, she was proposing that existing law "substitute a Federal, sex-neutral definition of the offense patterned after [italics mine] the language she cited. The earlier version was similarly hedged; it called for "a sex neutral definition of rape, such as the one set forth in S. 1400." Ginsburg never wrote, or even implied, that all the language be adopted verbatim.
Here's the heart of Volokh's complaint about my earlier column:
The report's recommendation tracked the proposal in a then-recent Senate bill (S. 1400 § 1633), but the authors were perfectly free to urge their own language, or to urge a mix of the bill language and their own language. In fact, as Mr. Noah himself points out, the Ginsburg report criticized S. 1400's use of "he" to cover both men and women. If the Ginsburg report disagreed with the proposal's lowering of the age of consent to 12, the report could easily have noted that as well, or at least could have noted that it was agnostic about the age of consent, and was recommending only the sex-neutralization aspects of the S. 1400 proposal.
But it's simply wrong to assume Ginsburg would voice every last objection she had to the bill's language. For instance, I noted in my earlier column that the bill's blank check for marital rape—which, as I read it, is explicitly stated not to be a crime—couldn't have gone down well with a feminist like Ginsburg. Yet she didn't mention that in either version of the booklet. On a point about which Ginsburg was merely agnostic—and I suspect that was her true stance toward the age of consent at the time—it was even less likely that she'd bother with a footnote.
Volokh handles my spousal rape point parenthetically:
(Mr. Noah is right to point out that the report's authors continued to include the spousal rape exception in their recommendation, though it's probable that they didn't much like that exception. That part of the recommendation, though, maintained then-existing law, so presumably the drafters didn't want to take on a new fight there. The lowering of the age of consent, though, would have dramatically changed existing law, and it's hard to see why they would endorse the change if they didn't actually support the change.)
This strikes me as a very lawyerly argument. I don't see why Ginsburg would be less likely to discuss her disagreement with existing law than she would her disagreement with proposed law. (And, to repeat: She did not "endorse" the proposed law in any literal sense.) The pertinent point here is that Ginsburg didn't discuss the age of consent at all. The closest she came was to note that the law should "require a substantial age differential between the offender and the young person." Does that sound to you like a person who would tolerate pedophilia?