WASHINGTON, DC – Democrats are attacking Judge Brett Kavanaugh for following the bipartisan “Ginsburg Rule” – which forbids Supreme Court nominees from giving any hint of how they might vote on any issue that could come before the Court – while a new Judicial Crisis Network (JCN) ad shows Sen. Chuck Schumer (D-NY) praising the rule that Democrats are now attacking.
Justice Bryon White was a conservative-leaning moderate jurist appointed in 1962 by President John F. Kennedy, a Democrat. When White retired in 1993, another Democrat, President Bill Clinton, nominated Judge Ruth Bader Ginsburg to replace him.
At the time Ginsburg was serving on the U.S. Court of Appeals for the District of Columbia Circuit, the same prestigious court on which Kavanaugh has served since 2006. Ginsburg was well-known as a strident liberal and the former general counsel of the American Civil Liberties Union (ACLU), whose appointment would move the Court to the left.
There were hot-button issues in 1993, just as there are today. Major cases on abortion, economic regulation, voting, religious liberty, and free speech were all in the news, similar to today. Some were likely to come before the Supreme Court.
Ginsburg emphasized to the Senate Judiciary Committee that the rule of law and the concept of due process require that a judge not be biased on any issue to come before his or her court, that the judge be impartial and listen to arguments on both sides with an open mind.
“A judge sworn to decide impartially can offer no forecasts” of how they would vote, she said, setting forth the “Ginsburg Rule” (also called the Ginsburg Standard or the Ginsburg Principle). In context, Ginsburg told the committee:
You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.
When she was later asked a question about how she would rule on a social issue, she responded, “I cannot address that question without violating what I said had to be my rule about no hints, no forecasts, no previews.”
The chairman of the Senate Judiciary Committee at the time, now-former Vice President Joe Biden, praised her standard, responding, “In my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the Court.”
Schumer praised the Ginsburg Rule after becoming minority leader in the Senate, saying on February 7, 2017, “There is a grand tradition that I support that you can’t ask a judge who’s nominated … for a judgeship about a specific case that might come before them.”
Every justice since 1993 has followed the Ginsburg Rule.
“There is nothing more important to a judge than to have an open mind and to listen carefully to the arguments,” said Stephen Breyer, whom Clinton nominated for the Supreme Court in 1994. “I do not want to predict or commit myself on an open issue that I feel is going to come up in the Court.”
When former Sen. Strom Thurmond (R-SC) reminded Breyer that he was replacing Justice Harry Blackmun, the author of Roe v. Wade, and asked him what he thought about Roe, Breyer responded, “I do not think I should go into those for the reason that those are likely to be the subject of litigation in front of the Court.”
“I think it’s vitally important that nominees, to use Justice Ginsburg’s words, ‘no hints, no forecasts, no previews,’” said John Roberts when he was nominated by George W. Bush in 2005. Such an answer to the Senate would rob litigants before the Supreme Court of their right to have their cases heard “with an open mind and decide those cases in light of the arguments presented, the record presented and the rule of law.”
When Ginsburg was asked in a September 29, 2005, interview about Roberts’ refusing to answer the question about a specific case, she responded, “Judge Roberts was unquestionably right.”
“But the line that I have to draw, and I think every nominee, including Justice Ginsburg, has drawn,” began Bush-appointee Samuel Alito in his 2006 confirmation hearings, “is to say that, when it comes to something that realistically could come before the Court, they can’t answer about how they would decide that question.”
“That would be a disservice to the judicial process,” asserted Alito.
“As a potential justice on the Supreme Court but, more importantly, as a Second Circuit judge still sitting, I can’t engage in a question that involves hypotheses,” agreed Sonia Sotomayor, nominated by Barack Obama.
When pressed, she explained, “But the question assumes a prejudgment by me of what’s an appropriate approach or not in a new case that may come before me.”
“I do not believe it would be appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled law entitled to precedential weight,” answered Obama’s second nominee, Elena Kagan, in 2010. “The application of Roe to future cases, and even its continued validity, are issues likely to come before the Court in the future.”
JCN’s new ad puts together a video montage of all these justices – plus the newest member to date, President Donald Trump’s appointee Neil Gorsuch – all giving the same answer, as well as Schumer’s praise of it. The ad is aptly entitled, “The Bipartisan Standard.”
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.