From the halls of Brooklyn’s James Madison High School to the chambers of the U.S. Supreme Court, Paul Bender and Ruth Bader Ginsburg crossed each other’s paths countless times, including when he argued the case that turned into one of her most most important decisions.
Long before she wrote the ruling in his favor, Ginsburg had already made an impression.
Ginsburg was second in the Class of 1950. Bender quips that he “was not first.”
He went on to Harvard College, and then to the Ivy League’s law school. She attended Cornell University, arriving at Harvard Law School when Bender was in his final year there.
Her name came up again a few years later, when Bender was clerking for Supreme Court Justice Felix Frankfurter.
Bender recalls the justice telling his clerks that the dean of Harvard Law School had recommended Ginsburg for a clerk’s position in his office. They all praised her as a terrific pick.
“I’m not going to take her,” Frankfurter told them. “I couldn’t have a woman working for me.”
More than a half-century later, Bender still doesn’t know why Frankfurter felt uncomfortable.
The justice, who died in 1965, had offered excuses about Ginsburg being the mother of young children and not being able to work hard enough. “His views on women were very outdated,” Bender said. “She would have had a tremendous influence on him.”
“Also, I think she would have learned a lot from him, as I did.”
Bender, now an emeritus professor at Arizona State University Law School, served as a top lawyer in the Clinton administration. President Bill Clinton named Ginsburg to the Supreme Court in 1993.
Of the roughly 20 cases Bender argued before the top court after Ginsburg was seated, the most famous was United States v. Virginia, a landmark ruling that opened the doors of the storied Virginia Military Institute, the oldest state-supported military college in the United States, to women.
Bender was confident about winning the case.
“It was my favorite argument of all time,” he recalled. “At the end of the argument, I had a really good feeling.” But he didn’t expect to win the conservative Chief Justice William Rehnquist’s vote, nor did he expect Ginsburg to write the decision. “I’m not sure exactly how that happened,” he said.
The decision is among Ginsburg’s most significant. Countering V.M.I’s argument that its program was too physically difficult for women, Ginsburg wrote the state had to show excluding women served important governmental objectives.
“Generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description,” she noted.
Because their work intersected so often, Bender said he did not have a personal relationship with Ginsburg, though they did run across each other in New Mexico at the Santa Fe Opera summer festival for the past few years.
Ginsburg’s evolution as something of a rock star in recent years was a “big surprise to everyone who knew her,” Bender said. “Her personality was never of an icon. She was very shy and reserved.”