More on the Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’

by Ed Whelan

A follow-up to yesterday’s post on the Ginsburg Standard:

As then-Judge Ginsburg explained at her confirmation hearing (transcript here), her record of opinions, law-review articles, speeches, and briefs provided the “most tangible, reliable indicator of [her] attitude, outlook, approach, and style” as a judge. Insofar as the hearing sought “helpful clarifications” of that record, it served a useful and legitimate purpose. But insofar as it instead sought to induce her to offer “forecasts” or “hints” about how she might rule in cases that might come before her, she regarded herself as ethically bound not to provide any such forecasts or hints.

Adhering steadfastly to the Ginsburg Standard is not easy, as Ginsburg herself observed: “I appreciate now more than ever how difficult it is for the [nominee] to maintain that line [i.e., the line ‘between judicial philosophy and votes in particular cases’] and not pass beyond it into forecasting or giving hints about votes in particular cases.” Part of the reason that steadfast adherence isn’t easy is that it’s politically tempting to win praise for endorsing popular precedents and for criticizing unpopular ones. (Some Democrats have argued that Ginsburg didn’t live up to her stated standard; as I explained way back during the Roberts nomination, that would be an indictment of Ginsburg, not an argument against the Ginsburg Standard.)

When senators ask a Supreme Court nominee to state whether the nominee believes that a particular precedent was rightly decided, they are either (a) seeking to have the nominee offer a hint on how the nominee would rule in a case that arguably involves the meaning or scope of that precedent on a matter that involve, or (b) using the precedent as a proxy for exploring the nominee’s judicial philosophy. Even when the inquiring senator has the latter motivation, answering the question risks giving a hint and thus violating the Ginsburg Standard.* Plus, there are plenty of other available means to explore the nominee’s judicial philosophy.

In short, the most sensible and principled way to apply the Ginsburg Standard is to refuse to answer any question about whether a particular precedent was rightly decided, except in those rare instances in which it’s clear that the meaning or scope of that precedent will not be at issue in any case that might foreseeably come before the Court.

An additional reason to take this approach is that appellate judges decide cases by reading briefs, conducting oral argument, and conferring with each other. But a question whether a judge believes that a particular precedent was rightly decided seeks to shortcut this deliberative process, and answering that question (in the absence of careful study of the case) gives the impression that judging is little more than picking the results one likes.

* Linda Greenhouse misses this elementary point when she oh-so-cleverly advises senators: “Don’t accept the standard nominee response that ‘I can’t answer because that question might come before the court.’ It has already come before the court.” (Emphasis in original.)

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