The Ginsburg Standard; A Brief Examination of the Judicial Nominee Hearings         

[SEPT. 14, 2005]  Judge John Roberts' confirmation hearing offers a good opportunity to consider the proper scope of questions and answers expected in such an arena. After all, the Senate's responsibility is to ask substantive questions, fulfilling its constitutional obligation to provide "advice and consent" to the President and the nominee has the duty to retain his or her impartiality, in reality and appearance, at all times.

Accordingly, a judicial nominee should not make any commitments or offer forecasts as to how he or she would decide an issue that is likely to come before the Court. But recent practice clearly shows that a nominee may not properly rely on his or her duty of impartiality to avoid questions that concern judicial philosophy or that simply touch on controversial issues.

The 1993 confirmation hearing of Justice Ruth Bader Ginsburg provides a good example of how a judicial nominee appropriately balances her obligation of impartiality with the need to shed light on her fundamental views. During the course of her hearing, Senators from both parties thought it appropriate to ask probing questions that addressed current--and controversial--legal issues and Justice Ginsburg's approach to judging.

Importantly, the Democrats on the Judiciary Committee did not expect less candor from Justice Ginsburg than they did from previous judicial nominees of Republican Presidents. In fact, after the first round of questioning, Senator Joseph Biden (D-Del.), then-Chairman of the Senate Judiciary Committee, opened the day's hearing by telling Justice Ginsburg that on some occasions she had "appeared to be reticent to answer some of our questions." While he acknowledged Justice Ginsburg's forthright answers so far, Senator Biden advised that he would continue to push for greater elaboration. She complied with his request by providing substantive answers to an array of penetrating questions.

In fact, Senators from both parties praised Justice Ginsburg for her candor, including Senator Orrin Hatch, one of the more conservative members of the committee, who praised Justice Ginsburg for her willingness to amplify her answers.

When members of the Judiciary Committee raised the issue of abortion, for example, Justice Ginsburg did not shy away; rather, she testified that 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 the Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices." Further, the right to make that decision without the father's permission was "essential to woman's equality with man...her choice [is] controlling."

This openness extended to racially sensitive issues. Justice Ginsburg testified that affirmative action-rather than litigating individual discrimination suits ad infinitum--was probably the most effective way to eliminate "underlying discrimination." In her view, the "kind of settlement reflected in many affirmative action plans" is a "better, healthier course for society than one that turns every case into a fierce, adversary contest that becomes costly and bitter."

But hot button issues aside, perhaps what provides the most useful glimpse into a judge's thinking is his or her approach to judging. The extent to which a judge believes he or she is bound by previous Supreme Court decisions, is a key aspect of their judicial philosophy. When queried on that issue, Justice Ginsburg remarked that judges "shouldn't abandon a precedent just because we think a different decision more rational...Reliance interests are important; the stability, certainty, predictability of the law is important."

As for interpreting the Constitution-a task that affects the lion's share of our basic liberties-Justice Ginsburg forthrightly testified: "No judge is appointed to apply his or her personal values;" rather "a judge will apply the values that come from the Constitution, its history, its structure, the history of our country, [and] the traditions of our people." Citing the late Justice Benjamin Cardozo, she made plain her core belief that "our Constitution was made not for the passing hour but for the expanding future. I believe that is what the Founding Fathers intended."

Of course, in keeping with her duty of impartiality, there were some questions that Justice Ginsburg declined to answer. For example, she passed on questions regarding the constitutionality of school vouchers and the protection afforded sexual orientation by the Equal Protection Clause because the Court was likely to face those issues in the future. Indeed, she was correct-those issues came before the Court in 2002 and 1996, respectively.

In short, the "Ginsburg Standard," far from being the epitome of recalcitrance that some would have us believe-is an appropriate and balanced yardstick for measuring responses from a judicial nominee during his or her confirmation hearing.

[Kristina Silja Bennard]

Bennard is an attorney at Mayer, Brown, Rowe & Maw LLP. The views expressed herein are her own.