written by Nicolette J. Zulli
It is believed that by 1801, when John Marshall became Chief Justice, the Justices were in the habit of wearing black. Today, every federal and state judge in the country wears a very similar, simple, black robe. Retired Associate Supreme Court Justice, Sandra Day O’Connor has said, “I am fond of the symbolism of this tradition. It shows that all of us judges are engaged in upholding the Constitution and the rule of law. We have a common responsibility.”
While the donning of the black robe is a symbolic act that historically prioritizes the court over the individual, some believe that when it comes to the Supreme Court, the emperor is expected to ‘wear no clothes’.” That is, that the Senate and we, as the American public, should mandate full transparency of an individual nominee’s past rulings and opinions on certain issues,
in order to understand how he or she can be expected to exercise their power as a U.S. Supreme Court Justice. However, Justice Ruth Bader Ginsburg said, or rather, did not say otherwise.
The Ginsburg Standard
Friday, August 3, 2018, was the 25th Anniversary of Ruth Bader Ginsburg’s confirmation to the Supreme Court of the United States. In the wake of Supreme Court nominee Brett Kavanaugh’s confirmation hearings next month, the anniversary of Ginsburg’s confirmation has revived conversation among liberals and conservatives on Capitol Hill about a precedent set during her hearings all those years ago, which has become known as “The Ginsburg Rule” or “Ginsburg Standard”.
Under the so-called “Ginsburg Standard,” a nominee for the Supreme Court may withhold from commenting on topics or cases that could come up before the bench in the future.
The standard originated when Justice Ginsburg, during her confirmation hearings, declined to answer certain questions that she believed could come back before the Court in the future. For example, she did not comment on topics such as the right to bear arms, the death penalty and private school vouchers. A recent Supreme Court Nominee Responsiveness Study (“Responsiveness Study”) conducted by Lori Ringhand, Professor of Law at the University of Georgia, and Paul M. Collins Jr., Professor of Political Science and director of Legal Studies at the University of Massachusetts, found that Ginsburg refused to respond approximately 10% of the time.
Ginsburg is famous for her quote during the U.S. Senate Judiciary Committee Hearing on July 20, 1993, in which she stated: “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.”
While she declined in her hearings to talk about future cases, Ginsburg did address key issues during her hearings, including touchy topics ranging from abortion, to the right of privacy, to gender discrimination, to free speech. To this end, she was willing to comment on precedent, explained Margo Schlanger, a current professor at the University of Michigan Law School and former Ginsburg clerk. “So when she is asked about prior cases, she talks about her views in those cases. What she declined in her hearings to talk about was future cases.”
The Model Code of Judicial Conduct was created in 1989 ― before Ginsburg’s hearings ― to reflect norms for judges and safeguard public confidence in the judicial system. Rule 4.1(A)(12) counsels judges not to opine on subjects that may later arise at the bench. Thus, some view The Ginsburg Standard or Rule less as a novel precedent set by the Justice, and more so her memorable articulation of Rule 4.1(A)(12) for the Committee.
Judges today have taken the Ginsburg Standard much farther. According to Aaron Saiger, a former Ginsburg clerk and current law professor at Fordham School of Law, “What has happened to the Rule since is that, as the nominations and the hearings became more and more partisan, the reticence of the nominees grew. I wouldn’t say I can say that with respect to every nominee . . . but as a trend, the unwillingness of judges to answer questions has gone up.”
Despite vocal objections from senators, in recent hearings, a number of lower court judges have refused to express an opinion on whether or not they affirm the Supreme Court’s landmark decision in Brown v. Board of Education. For example, Supreme Court Justice Neil Gorsuch would not explicitly agree with the outcome of the decision, only going as far as to say it was “a correct application of the law of precedent.” When pressed further, Gorsuch later called it a “great and important” decision. In direct comparison, Ginsburg fully affirmed the Brown decision in her Senate testimony. She also opined on other major cases, stating that Dred Scott v. Sandford and Korematsu v. United States were unequivocally wrong. The Responsiveness Study noted that Ginsburg expressed many more opinions than Gorsuch. In fact, it showed that Ginsburg responded to eight times as many civil rights questions, and her “responsiveness ratio” ― which compares the number of firm answers to the number of demurrals ― was far higher than Gorsuch’s. The study concludes that Gorsuch went further than Ginsburg by avoiding commentary on even settled precedent. The Responsiveness Study showed that Gorsuch was the least responsive nominee in 50 years, refusing to clearly answer questions about even canonical cases, such as Brown v. Board of Education. The study showed that Ginsburg was among the most responsive nominees ever to appear before the Senate Judiciary Committee. According to the study, the evasiveness titleholder was Justice Abe Fortas, nominated by President Lyndon Johnson to be Chief Justice in 1968.
While judicial nominees have invoked the Ginsburg Rule for decades, it is only recently that nominees have been accused of abusing this “Rule” to avoid answering questions in any meaningful way.
With President Donald J. Trump’s latest nomination of Brett Kavanaugh to the Supreme Court, a significant debate between liberals and conservatives is whether the “Ginsburg Rule” is a well-tenured excuse for nominees to avoid answering the Senate’s questions during confirmation hearings, thereby threatening constitutional power.
Conservatives are now rebroadcasting portions of Ginsburg’s testimony to argue that her example should apply to Brett Kavanaugh. On July 10, 2018, the day after Kavanaugh’s nomination, Senate Majority Leader Mitch McConnell referred to Ginsburg’s “no forecast, no hints” soundbite and said, “I think we all should remember that [S]tandard.”
This is because conservatives believe that, as a result of forcing nominees to opine on such matters, the Supreme Court’s hands have become patently obvious and predictable – a failure of our judicial system. The conservative view is that a Supreme Court Justice should be entirely unpredictable, not a “hardened ideologue.”
While conservatives concede that a Justice’s past rulings will reveal his or her leanings, the concern is that placing such extreme emphasis and dependence on a Judge’s past rulings to inform and be predictive of his or her future rulings is transforming the judiciary into a “mockery.” This way, a party coming before the court can win simply by tailoring their argument to a particular Justice. There would be no need for written briefs, oral arguments, contemplation, or written opinions if we already knew how each Justice will decide.
When the Justices decide the fewer than 80 cases that make it to the Court each year, they must exercise not just sharp legal reasoning, but also sound legal judgment. They must take the mélange of possibilities rendered by tools of constitutional interpretation and mold them into a coherent body of law, consistent with our most fundamental constitutional commitments. This is their constitutional onus.
Until recently, nominees of both parties have seemingly understood this. They combined their privilege to avoid some questions with the recognition that they have a corresponding duty to answer others. Liberals argue that Senators — and the American public — should insist that Brett Kavanaugh do so as well, during his confirmation hearings in September.
They argue that a nominee’s willingness to accept, in public and under oath, the correctness of previously contested, but no longer controversial, constitutional cases and issues is critical to the success of the confirmation process.
Seeing as the entire structure of the U.S. federal government is one of checks and balances, the liberal view is that our founders almost certainly saw the confirmation process as an essential check on how Supreme Court power is exercised — a feature to allow indirect control over the court. That is, by putting the appointment of Supreme Court justices in the hands of elected officials, they ensured that the court is part of that system.
While liberals agree that a nominee’s refusal to offer opinions on current disputes is understandable, they contend that his or her affirmation of the contemporary constitutional canon is an important way in which we as a society validate the Supreme Court’s constitutional choices over time.
Does the Naked Emperor Really Validate SCOTUS’ Constitutional Choices?
But, does a Judge’s responsiveness during his confirmation hearings really paint a definite picture of his judicial philosophy for the Senate and American Public? History suggests that a greater understanding of a Judge as an individual, including his responsiveness, may not always foreshadow his or her rulings on certain issues.
A prime example is that of newly retired Supreme Court Justice Anthony Kennedy. Kennedy’s resume might have made his ideology seem straightforward. Before he became a judge, Kennedy worked as a Republican lobbyist in California. He was then appointed to the federal bench by Republic president, Gerald Ford, and to the Supreme Court by Republican President, Ronald Reagan.
However, his views proved much harder to pigeonhole. His tenure at the High Court was marked by his ability to cross ideological lines and serve as a deciding swing vote. Notably, he sided with the court’s liberals more frequently on issues involving LGBTQ rights, criminal justice, and, in some cases, abortion rights, including the Whole Women’s Health and Obergefell decisions. Yet, he also backed conservatives in decisions that blew up campaign finance restrictions and weakened the Voting Rights Act. He voted consistently against affirmative action before upholding The University of Texas’s race-conscious admissions policy in 2016.
The point being, that despite a resume and paper trail riddled with past rulings and political leanings of a certain persuasion, a Judge’s past does not truly envisage his future when he owes a duty of impartiality.
Similarly, Justice O’Connor demonstrated her political prowess as an Arizona assistant attorney general and Republican majority leader of the Arizona Senate. She then arrived at the Supreme Court. Over the years, as her influence grew in an increasingly polarized nation and as ideological divisions intensified on the Court, O’Connor managed to find the middle ground, taking an incremental approach to the law, while persuading her colleagues to accept her views. She developed a highly specific, fact-based jurisprudence, which made it difficult for attorneys to predict how she would vote.
Overall, “the social construction of judicial power is a complicated process, particularly in hybrid political regimes,” like that of the current Court.
Regardless of party affiliation or political inclination, none of us are true cognoscente when it comes to the art of human behavior. Liberals and conservatives in this debate are missing the point. Because to accurately understand a Judge as an individual, would mean not only seeking out his or her opinions on landmark decisions like Obergefell or Brown or Dred Scott, but understanding his or her political positions, religious views, life experiences, and childhood upbringing – all things that create the lens or reality through which that Judge views his decision-making. Perhaps then we might inch closer to predicting his or her decision on future rulings.
However, understanding a Judge on this level would mean prioritizing the individual over the Court. Fundamentally, we must remember that politics and realpolitik are two very different things. Understanding a Judge’s politics has no place in the formation of an impartial Court, because such an inquiry inherently involves a seeking out of moral and ideological, rather than practical, considerations.
From this perspective, it may seem the Ginsburg Rule is not so much an excuse to avoid answering the Senate’s questions, so much as it is a means by which a Judge can ensure the information he or she provides only goes to understanding his or her judicial philosophy — not his or her personal views.
The Likely Role of “The Ginsburg Standard” in Kavanaugh’s Confirmation Hearings
That said, a Judge’s background, resume, religious beliefs, and political affiliation is inextricably connected to his or her judicial philosophy. In this sense, understanding his or her judicial philosophy is a much better, and more appropriate, predictor of his or her future rulings.
In the Responsiveness Study, Ringhand observed that for Ginsburg, given how much she had written about abortion, it would have been very hard not to answer questions about that subject at her confirmation hearing. And, Ringhand observes, there will be similar issues that Kavanaugh will likely have to address.
“Judge Kavanaugh, with his paper trail, will actually give us quite a few firm responses to non-controversial issues that he’s written about,” she said. Perhaps, he may give us responses on some controversial ones — including his one opinion about abortion, and his many opinions and other writings about presidential power, national security, and his suggestion that presidents should be immune from criminal investigation.
Therefore, despite the ongoing debate among conservatives and liberals as to whether “The Ginsburg Standard” may be properly invoked, it is likely that Judge Kavanaugh will produce a well-balanced set of responses to satisfy all partisan concerns when appearing before the Senate Judiciary Committee next month.
Only time will tell, but it appears that at least as applied to Judge Kavanaugh, the Ginsburg Standard remains a viable tool to quiet the noise of party-political probing and preserve the sanctity of what it means to don the black robe.