The Ginsburg Rule
When Sen. Joseph Biden chaired confirmation hearings for Supreme
Court nominee Ruth Bader Ginsburg in 1993, he established certain
rules for questioning nominees -- rules that some of his fellow
Democrats seem to have conveniently forgotten.
Ginsburg, while a smart lawyer, had been a radical activist. Her
record as an ACLU litigator placed her far outside the mainstream
of American law. She had argued for legalizing prostitution,
against separate prisons for men and women, and had speculated that
there could be a constitutional right to polygamy.
Some Republican senators wanted to know whether she still held such
extreme views. On question after question, though, she refused to
answer: The Biden rules stipulated that she had no obligation to
answer questions about her personal views or on issues that might
come before the Court. Despite her silence, the Senate confirmed
Yet as President Bush and Judge John Roberts left the White House
podium last week, three Democratic senators -- Patrick Leahy,
Richard Durbin and Chuck Schumer -- were already promising to
violate the "Ginsburg Rule," not to mention the Model Code of
Canon 5 of the Model Code, among others, forbids judges or judicial
candidates from indicating how they will rule on issues likely to
come before the courts or making any statement that would create
the appearance they are not impartial. This rule is critical to an
independent judiciary. Justices must remain open-minded when an
actual case comes before them. They must not even hint how they
The obstructionists' ploy will be either to twist Roberts's arm to
make him answer unethical questions, or if he refuses, to make hay
with his (appropriate and ethical) silence. Yet Ginsburg's
confirmation hearing entirely deflates this argument.
Sen. Biden began the hearing by noting that nominees almost never
testified during their confirmation hearings prior to 1955. In
1949, one nominee was called to testify but refused and was still
confirmed. Biden warned senators not to ask questions about "how
[Ginsburg] will decide any specific case that may come before her."
Ginsburg, then serving on the same court as Judge Roberts does
today, followed Biden's roadmap.
Sen. Leahy asked about the religion clauses of the First Amendment.
Ginsburg responded simply: "I prefer not to address a question like
that." Leahy pressed for her interpretation of Supreme Court
precedent on the subject, but Ginsburg again demurred: "I would
prefer to await a particular case." Leahy finally backed off: "I
understand. Just trying, Judge. Just trying."
Sen. Strom Thurmond asked whether Ginsburg thought states could
"experiment with and provide for diverse educational environments
aided by public funding." Ginsburg refused to give an answer: "Sen.
Thurmond, that is the kind of question that a judge cannot answer
at-large." The senator asked a narrower question about the
"constitutionality of some form of voucher system." Ginsburg
replied, "Sen. Thurmond, aid to schools is a question that comes up
again and again before the Supreme Court. This is the very kind of
question that I ruled out."
Ginsburg refused two senators' requests to address homosexual
rights. "[A]nything I say could be taken as a hint or a forecast on
how I would treat a classification that is going to be in question
before a court." In fact, she exercised the Rule to avoid answering
any questions relating to sexual orientation: "I cannot say one
word on that subject that would not violate what I said had to be
my rule about no hints, no forecasts, no previews."
When pressed on another issue, she refused to discuss her "personal
reactions" to a particular Supreme Court case. "I have religiously
tried to refrain from commenting on a number of Court decisions
that have been raised in these last couple of days." Indeed.
Near the end of her hearing, Ginsburg explained, "my own views and
what I would do if I were sitting in the legislature are not
relevant to the job for which you are considering me, which is the
job of a judge." The same job, it should be noted, for which Judge
Roberts has been nominated.
Sens. Leahy, Durbin and Schumer already have announced they won't
honor the Ginsburg Rule for Republican nominees. They are certain
to ask inappropriate and wrongful questions of John Roberts, and he
is certain not to violate the Code of Judicial Conduct. If senators
then pretend to oppose him because of this, their shameful conduct
should be seen for what it is.
Edwin Meese, a
former U.S. Attorney General, is Chairman of the Center for Legal
and Judicial Studies at The Heritage Foundation (heritage.org). Todd Gaziano, who has
worked as an attorney in all three branches of the federal
government, is Director of the Center.
Distributed nationally on the Knight-Ridder Tribune Wire