The Ginsburg Precedent
In a Wall Street Journal editorial entitled Who Will Judge the Inquisitors?, Richard Epstein discusses Supreme Court nominee John Roberts and Democratic Senator Schumer’s initial comments:
…I have never met Judge Roberts, nor, for that matter, read a single one of his opinions. But I knew that he enjoyed the reputation as one of the keenest intellects and best Supreme Court advocates in the highly competitive Washington legal market. A glance at his gilt-edged resume — his 1979-80 clerkship with the late Judge Henry Friendly on the Second Circuit Court of Appeals leaps out — only increased my confidence in his nomination. His familiarity with complex business matters counts as a big added plus. Well done, I thought. This should be a cakewalk.
Then I heard Senator Charles Schumer, somber and self-righteous, reach, as he so often does, for the microphone, to announce that gilt-edged credentials are not enough. In his view, all nominees must be vetted for the soundness of their ideological positions. More pointedly, he observed that when John Roberts was up for a Circuit Court judge position, he refused, under questioning, to identify three Supreme Court decisions that he disagreed with. This time round, Sen. Schumer warned, that evasion will not work…
Now, if you want to see a double standard at work, consider this posting from Hugh Hewitt entitled The Ginsburg Precedent:
“I prefer not to answer questions like that; again, to talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case,” was the response of Ruth Bader Ginsburg to Patrick Leahy’s 1993 question to then nominee Judge Ginsburg on which of the two religion clauses of the First Amendment was subordinate to the other.
Judge Roberts will no doubt be spending a lot of time with the transcripts of the confirmation hearings, especially that part where Senator Leahy says “I understand. Just trying, Judge, just trying” in response to Justice Ginsburg refusal to engage in great debate over constitutional principles.
This article by Jay T. Jorgensen explains in detail the importance of the precedents established by the Ginsburg hearings. One of his many key findings:
“Justice Ginsburg declined to answer questions about her views on both prospective and many historical Supreme Court cases. She also declined to answer questions (or gave non-responsive answers to questions) involving a number of controversial issues, hypothetical facts, or areas in which she is not an expert.”
Nothing has changed in 12 years, except that the president nominating the justice is George W. Bush and not Bill Clinton. The MSM will attempt to prop up the wild claims of Senators Leahy and Schumer about the duties of nominees, as the New York Times editorialists did this morning when they wrote “[t]he Senate has a duty to scrutinize his background and to question him closely at his confirmation hearings about substantive areas of the law.” But when biased papers invent such “duties,” or when Ted Kennedy makes the statement that “[n]o nominee, especially a nominee who is well known to have argued ideological positions on issues important to the American people, should be confirmed without full and candid disclosure and discussion of those positions and their importance to him,” the Ginsburg precedent must be close at hand.
Useful activism: The Jorgensen article is easily linked and e-mailed. Bloggers should feature it prominently on their blogs, and activists should e-mail it to columnists and editorial writers at every level of the media. It will especially be useful if hundreds of activists e-mail it to D.C. talking heads so that they have no excuse for indulging the Schumers and the Leahys who hold forth on the duty of nominees to answer loaded questions…
Justice Scalia gave a speech about the Pledge of Allegiance, in which he took a position on the words “under God.” As a result he was compelled ethically to recuse himself from the case. A nominee for the Court, giving answers under oath, is under a similar obligation. It would be irresponsible to give direct answers to inappropriate questions.
Robert Alt explains further:
During recent confirmation hearings, Senate Democrats have taken to asking candidates very specific questions about legal issues which are likely to come before their prospective courts. Such questions have presented the nominees with a Catch-22: If the nominees answer the questions, then they risk running afoul of the codes of judicial ethics, and may be required to take no part in cases raising that issue coming before the court. If, however, the nominees choose to point out that judicial cannons prohibit them from answering the question, then they face rejection by Senate Democrats for not being sufficiently forthcoming.
Here are some previous postings which contain further suggestions for the proper role of the judiciary:
Judicial Activism: Commandeering the Public Debate & Violating the Founding Principles of America
“The Supreme Court Has Converted Itself From a Legal Institution to a Political One”
Are You an Originalist?
How Original Intent Does Not Equal Conservative Judicial Activism
“Restoration of Judicial Restraint Assists the Restoration of Good Will, Because Democratic Governance Gives Everyone Their Say”
Rediscovering Proper Judicial Reasoning
Orrin Hatch: Don’t Overstate “Advise and Consent”
Senator Santorum: Judicial Activism is Destroying Traditional Morality
Relinking Constitutional Law & Jurisprudence to the Constitution
The Kelo Decision: When Private Property Rights are Eroded, Our Freedom is Diminished
Here are two examples of how the Left views the same issues:
Viewing the Supreme Court Nomination Battle From the Far Left
“We Are Going To Go To War Over This”
Here are other postings on this site about the related issue of the judicial filibuster debate:
The Injustice of Smearing A Fellow American For Political Gain
The Senate Judicial Filibuster: Power Politics & Religious Bigotry
Mac Owen’s open letter to Senator Chaffee
Senator Mitch McConnell on the Judicial Filibuster
The Foolish Fourteen: An editorial by the former Dean of BU’s Law School
A Power Line overview of the filibuster debate
Revisiting the Case for Janice Rogers Brown