The ‘Grand Tradition’ Of The Ginsburg Standard

THE GINSBURG STANDARD: ‘Judge ... Are Bound to Decide Concrete Cases, Not Abstract Issues’

JUDGE RUTH BADER GINSBURG: “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.” (U.S. Senate Judiciary Committee, Hearing, 7/20/1993)

JUDGE STEPHEN BREYER: “Let us imagine, if I am lucky and if you find me qualified and vote to confirm me, I will be a member of the Supreme Court, and, as a member of that Court, I will consider with an open mind the cases that arise in that Court. And there is nothing more important to a judge than to have an open mind and to listen carefully to the arguments... I will try very hard to give you an impression, an understanding of how I think about legal problems of all different kinds. At the same time, I do not want to predict or commit myself on an open issue that I feel is going to come up in the Court.” (U.S. Senate Judiciary Committee, Hearing, 7/12/1994)

• FORMER SEN. STROM THURMOND (R-SC): “Judge Breyer, it is likely that Justice Blackmun is most widely known to the public as the author of Roe v. Wade. What was your impression of his majority opinion in that landmark decision? In particular, give us your thoughts on where he draws the line at different points during pregnancy as it relates to the State's interest in the regulation of abortion-related services? For instance, do you agree that the first trimester of pregnancy is distinctive and that the State should not be able to prohibit abortion during that period?” JUDGE BREYER: “You are asking questions, Senator, that I know are matters of enormous controversy... The questions that you are putting to me are matters of how that basic right applies, where it applies, under what circumstances. And 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.” (U.S. Senate Judiciary Committee, Hearing, 7/12/1994)

• ABC’S TERRY MORAN: “…this week, in an extraordinary statement, Justice Ruth Bader Ginsburg, a Democrat nominated by President Clinton, took Roberts’s side.” JUSTICE RUTH BADER GINSBURG: “Judge Roberts was unquestionably right.” (ABC’s “World News Tonight,” 9/29/2005)

JUDGE SAMUEL ALITO: “But the line that I have to draw, and I think every nominee, including Justice Ginsburg, has drawn, 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.” (U.S. Senate Judiciary Committee, Hearing, 1/11/2006)

SEN. CHUCK GRASSLEY (R-IA): “Well, then maybe it would be fair for me to ask you what is your understanding of the constitutional limitations then on government entity -- any government entity taking land for public purpose?” JUDGE SONIA SOTOMAYOR: “...As I've indicated to you, opining on a hypothetical is very, very difficult for a judge to do. And 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.” (U.S. Senate Judiciary Committee, Hearing, 7/14/2009)

• JUDGE SOTOMAYOR: “What my experience on the trial court and the appellate court have reinforced for me is that the process of judging is a process of keeping an open mind. It's the process of not coming to a decision with a prejudgment ever of an outcome, and that reaching a conclusion has to start with understanding what the parties are arguing, but examining in all situations carefully the facts as they prove them or not prove them, the record as they create it, and then making a decision that is limited to what the law says on the facts before the judge.” (U.S. Senate Judiciary Committee, Hearing, 7/14/2009)

• SEN. DIANNE FEINSTEIN (D-CA): “My question to the chief justice and now to you is: do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the Commerce Clause? Generally, not relating to any one case.” JUDGE SOTOMAYOR: “No, I know. 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 as a Second Circuit judge or, again, if I'm fortunate enough to be a justice on the Supreme Court. So it's not a case I can answer in a broad statement.” (U.S. Senate Judiciary Committee, Hearing, 7/14/2009)

SOLICITOR GENERAL ELENA KAGAN: “[T]he Senate has a very significant role to play in picking Supreme Court Justices ... and part of that is getting some sense, some feel of how a nominee approaches legal issues ... But I would say that there are limits on that. [S]ome of the limits I talked about in [a law review] article ... I mean, that article makes very clear that it would be inappropriate for a nominee to talk about how she will rule on pending cases or on cases beyond that that might come before the Court in the future.” (U.S. Senate Judiciary Committee, Hearing, 6/29/2010)

Senate Democrats Have Acknowledged The Importance Of The Ginsburg Standard

SEN. PAT LEAHY (D-VT), Former Judiciary Committee Chairman: “I certainly don’t want you to have to lay out a test here in the abstract which might determine what your vote or your test would be in a case you have yet to see that may well come before the Supreme Court.” (U.S. Senate Judiciary Committee, Hearing, 7/21/1993)

SEN. CHUCK SCHUMER (D-NY): “There is a grand tradition that I support that you can't ask a judge who’s nominated for a -- or a potential judge who is nominated -- for a judgeship about a specific case that might come before them.” (Sen. Schumer, Press Conference, 2/7/2017)

THE NEW DEMOCRAT DOUBLE STANDARD: ‘This New Nominee To The Supreme Court Has To Pass A Special Test,’ ‘Special Burden On This Nominee’ To ‘Be More Forthcoming With His Views On Specific Issues’

“Voters from the liberal base apoplectic over Trump's presidency are demanding opposition at any cost.” (“Democrats In A Vise Over Trump's Supreme Court Pick,” AP, 2/2/17)

• “Democrats, pushed by their base, are under pressure to not cooperate with the new president—on anything.” (“Donald Trump, Democrats Dig In For Fight,” Wall Street Journal, 2/1/17)

“Several Senate Democratic officials ... said the party’s strategy moving forward is to further raise the bar as Gorsuch asserts his judicial independence.” (“Gorsuch’s Criticism Of Trump May Be Winning Him Democratic Support,” The Washington Post, 2/09/2017)

“Senate Minority Leader Chuck Schumer said President Trump's Supreme Court nominee, Neil Gorsuch, ‘avoided answers like the plague’ during their meeting Tuesday. The New York Democrat told reporters he pressed Gorsuch for his views.” (“Schumer: Supreme Court Nominee Gorsuch Avoided Answers Like The Plague,” USA Today, 2/7/17)

• SCHUMER: “This new nominee to the Supreme Court has to pass a special test, in my opinion, of true independence from the president.” (Sen. Schumer, Congressional Record, S.997, 2/9/17)

• SCHUMER: “…there is a special burden on this nominee to be an independent jurist…” (Sen. Schumer, Congressional Record, S.610, 2/2/17)

SEN. DICK BLUMENTHAL (D-CT): “I understand that Supreme Court nominees are expected to avoid some questions, especially about future cases. But, we are in a very unusual time. … There is a special obligation for Judge Gorsuch to set the record straight and be more forthcoming with his views on specific issues.” (Sen. Blumenthal, Press Conference, 2/8/17)

• BLUMENTHAL: “I said to Judge Gorsuch, and I believe that ordinary a Supreme Court nominee would not be expected to comment on issues or political matters or cases to come before the court. But we're in a very unusual situation. … I think he has to be specific, direct, explicit.” (CNN, 2/9/17)