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
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."
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."
[to top of second column in this article]
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."
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."
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.
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.
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