As the 25th anniversary of Ruth Bader Ginsburg’s confirmation to the Supreme Court approaches this Saturday, a precedent set during her hearings has become a hot topic on Capitol Hill.
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.
For many conservatives in the Senate, that means that President Donald Trump’s nominee, Judge Brett Kavanaugh, should not be obligated to answer questions from their Democratic colleagues about hot-button issues such as abortion, affirmative action and gay marriage.
But many experts say that, over the years, the application of the Ginsburg standard has significantly expanded in scope — far beyond what it meant when the liberal justice first utilized it. In her 1993 hearings, Ginsburg was actually quite forthcoming about some of her positions on past decisions.
“The Ginsburg standard is something that somebody else came up with — that’s a phrase used by subsequent judges who were trying to avoid talking about their views,” said Margo Schlanger, a current professor at the University of Michigan Law School and former Ginsburg clerk. “If you watch the tapes of her confirmation hearings, you will hear her over and over and over again talking about her views.”
The standard originated when Ginsburg declined to answer certain questions that she believed could come back before the court in the future. She did not comment on topics such as the right to bear arms, the death penalty and private school vouchers. In an academic study, legal scholars Lori Ringhand and Paul Collins found that Ginsburg refused to respond approximately 10 percent of the time.
She is famous for her quote during the hearings in which she stated: “A judge is 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.”
Read More: Ginsburg Wishes This Case Had Legalized Abortion Instead of Roe v. Wade
Now, conservatives are rebroadcasting portions of Ginsburg’s testimony to argue that her example should apply to Kavanaugh. On July 10, 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 standard.”
Ginsburg did, however, address key issues during her hearings including touchy topics ranging from abortion, to the right to privacy, to gender discrimination, to free speech.
Ginsburg was willing to comment on precedent, explains Schlanger. “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.”
Judges today, however, have taken that rule much farther. In recent hearings, a number of lower court judges have refused to opine on whether or not they affirm the Supreme Court’s landmark Brown v. Board of Education decision. Even Supreme Court Justice Neil Gorsuch would not explicitly agree with the outcome of the decision, only going as far as to say that it was “a correct application of the law of precedent.” When pressed further, he 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 (a pre-Civil War case on slavery) and Korematsu v. United States (which permitted the internment of Japanese Americans during World War II) were unequivocally wrong.
“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,” said Aaron Sanger, a former Ginsburg clerk who now teaches at the Fordham School of Law. “I wouldn’t say that I can say that with respect to every nominee… but as a trend, the unwillingness of judges to answer questions has gone up.”
The Ringhand and Collins study noted that Ginsburg expressed many more opinions than Gorsuch, the most recent judge to be confirmed. She 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.
Jay Wexler, who clerked for Ginsburg before teaching at Boston University Law, said this practice makes hearings less informative — both for Senators and the public. “It results in a very sort of strange bit of theater,” he said.
Sanger notes that Ginsburg wouldn’t have seen her conduct as anything novel. The Model Code of Judicial Conduct was created in 1989 — before Ginsburg’s hearings — to reflect norms for judges. One section counsels judges not to opine on subjects that may later arise at the bench. “All she did was memorably articulate that rule for the committee,” Sanger said. “So to say that it was a precedent in that sense — she would not, and I would not either.”
Here’s a look at some of the key issues that Ginsburg actually discussed during her confirmation hearings:
Ginsburg affirmed both Roe v. Wade and a later decision that upheld the landmark abortion case, Planned Parenthood v. Casey.
In response to a question about how the equal protection clause applies to abortion, Ginsburg said:
“The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
Here’s an excerpt of Ginsburg’s answer to a question about Casey and whether the right to choose is a fundamental constitutional right:
“The Court has once again said that abortion is part of the concept of privacy or liberty under the 14th amendment.
What regulations will be permitted is certainly a matter likely to be before the Court. Answers depend, in part, Senator, on the kind of record presented to the Court. It would not be appropriate for me to go beyond the Court’s recent reaffirmation that abortion is a woman’s right guaranteed by the 14th amendment; it is part of the liberty guaranteed by the 14th amendment….
The Casey decision, at least the opinion of three of the Justices in that case, makes it very clear that the woman is central to this. She is now standing alone. This is her right. It is not her right in combination with her consulting physician. The cases essentially pose the question: Who decides; is it the State or the individual? In Roe, the answer comes out: the individual, in consultation with her physician. We see in the physician something of a big brother figure next to the woman. The most recent decision, whatever else might be said about it, acknowledges that the woman decides.”
Right to privacy:
Ginsburg affirmed that the Constitution includes a right to privacy — which is a key concept underlying the Supreme Court’s future decisions on abortion and gay marriage.
When answering a question about whether privacy is a constitutional right, Ginsburg stated:
“There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone.
The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life’s course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make basic decisions about one’s life’s course.”
Ginsburg endorsed the existence of affirmative action programs in her hearings as long as they weren’t bound to quotas.
In her testimony, she gave an example of an employment requirement that advantaged men that should be eliminated to create an equal playing field.
“I remember some police cases involving tests, physical tests that women could not pass at the same rate as men, but that were not at all related to job performance. So some of the plans include new tests that are related to what the job requires, and do not include standards, unrelated to job performance, that men can meet more readily than women.
I remember one test particularly. The job involved was slide projectionist. As part of the physical test, the applicant had to carry a certain weight with arms raised above his head. That posture was much harder for women than for men, and women failed that portion of the test disproportionately. But the weight that had to be carried was something like 18 to 20 pounds, about the weight of a year-old child. Women have carried that weight from the beginning of time, but not with arms lifted over their heads. Once you eliminate that element of the test, the women begin instantly to pass at least at the same rate as men.
Many of these job classifications and tests were set up one way without thinking—with no thought of including women. Eliminating such tests is part of the kind of positive affirmative action that does not entail rigid quotas, but estimates of what one would expect the workforce to look like, if discrimination had not operated to close out certain groups.”
Ginsburg commented on the importance and evolution of free speech. When asked about her thoughts on the evolution of free speech rights, she said:
“Free expression was an ideal from the start. The Alien and Sedition Act, early on, severely limited free speech. That law was never declared unconstitutional by the Supreme Court, but it has been overturned by the history of our country since that time.
The idea was there from the beginning, though. I mentioned the Revolutionary War cartoon, “LIBERTY of speech for those who speak the speech of liberty.” The idea was always there. The opposition to the government as censor was always there.
But it is only in our time that that right has come to be recognized as fully as it is today. The line of cases ending in Brandenburg v. Ohio (1969) truly recognizes that free speech means not freedom of thought and speech for those with whom we agree, but freedom of expression for the expression we hate. New contexts undoubtedly will arise. But everyone accepts that the dissenting positions of Holmes and Brandeis have become the law. That is where we stand today.”
Ginsburg said in her testimony that the Court should not strike down labor laws based on the freedom of contract. She was responding to questions about the Lochner era, in which the Supreme Court struck down a number of economic regulations — such as minimum wage, minimum and maximum hours, or labor union protections — under the justification of the Fourteenth Amendment and the right to contract.
“The Court in the 1930’s rejected the so-called Lochner line. The Court, in that line of decisions consistently overturned economic and social legislation passed by the States and even by the Federal Government. That era, in which the Court attempted to curtail economic and social legislation, is over. Although there may be some voices for a return of that kind of judicial activism, I think it is generally recognized that the guardian of our economic and social rights must be the legislatures, State and Federal.”
Ginsburg denounced discrimination in response to questions on the subject.
“A person’s birth status should not enter into the way that person is treated. A person who is born into a certain home with a certain religion or is born of a certain race, those are questions irrelevant to what that person can do or contribute to society.”
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