Senate Democrats Should Follow The ‘Ginsburg Standard’ and Not A ‘Double Standard’ in Considering the Gorsuch Nomination

‘This new “special test” and “special obligation” aren’t about ensuring Judge Gorsuch’s judicial independence; they are about compromising it.’

”When President Clinton took office in 1993, he named his first nominee to the Supreme Court: Ruth Bader Ginsburg.  Ginsburg’s nomination was not without controversy. She had argued for positions that are still quite controversial today. 

“For example, she had questioned the constitutionality of laws against bigamy because they implicated private relationships.  For the same reason, she had opined that there might be a constitutional right to prostitution.  She also had advocated for co-educational prisons and juvenile facilities.  And she had even proposed abolishing Mother’s Day. 

“So you can understand why Senators wanted to get her views on issues that might come before her as a Justice. But, when pressed at her confirmation hearing, here’s what she said:

“‘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.’  She went on, ‘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.’

“So summing it up, Mr. President, she said no hints, no forecasts, no previews.  That’s what became known as the Ginsburg Standard.  Supreme Court nominees of presidents of both parties have adhered to it.  For example, President Clinton’s second nominee, Stephen Breyer, noted that ‘there is nothing more important to a judge than to have an open mind and to listen carefully to the arguments,’ and so, he told the Judiciary Committee, he did ‘not want to predict or commit myself on an open issue that I feel is going to come up in the Court.’ That meant, he said, not discussing ‘how’ a ‘right applies, where it applies, under what circumstances’ it applies.

“When his nomination to be Chief Justice was pending, John Roberts said that adhering to the principle embodied in the Ginsburg Standard is ‘of great importance not only to potential Justices but to judges,’ which most nominees to the Supreme Court are.  ‘We’re sensitive,’ he said, ‘to the need to maintain the independence and integrity of the Court.’  Let me repeat that. The Chief Justice said this principle was necessary ‘to maintain the independence and integrity of the Court.’  He then explained how the Ginsburg Standard helps maintain that independence: Nominees, he said, ‘go on the Court not as a delegate from [the Judiciary] Committee with certain commitments laid out and how they’re going to approach cases.’

“Rather, ‘[T]hey go on the Court as Justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented, and the rule of law. And the litigants before them,’ he concluded, ‘have a right to expect that and to have the appearance of that as well. That has been the approach that all of the Justices have taken.’ 

“Now, at the time, my colleague from New York and other Senate Democrats were upset that the Chief Justice followed Justice Ginsburg's approach — even though many of them didn't complain when she refused to preview or prejudge legal issues during her own confirmation hearing.  But guess who came to his defense?  Justice Ginsburg‎.  She felt compelled to depart from protocol and weigh in on the matter.  She said‎ ‘Judge Roberts was unquestionably right’ in refusing to preview or prejudge legal issues at his confirmation hearing. 

“Both of President Obama’s nominees adhered to the Ginsburg Standard as well. His first nominee, Sonia Sotomayor, explained that what her ‘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,’ she continued, ‘of not coming to a decision with a prejudgment ever of an outcome...’ That process, she said, applied not only to cases that could come before her on the Supreme Court if she were confirmed, but that could come before her in her then-current capacity as a circuit court judge. 

“Most Senators, of both parties, have respected the Ginsburg Standard.  For example, during her hearing, Senator Leahy told Justice Ginsburg that he ‘certainly’ didn’t want her ‘to have to lay out a test here in the abstract which might determine what [her] vote or [her] test would be in a case [she had] yet to see that may well come before the Supreme Court.’  And even my friend from New York has recognized that the Ginsburg standard is a ‘grand tradition.’  But the Far Left has been pushing him and other Senate Democrats to oppose anyone whom the President nominates to the Supreme Court. So the Ginsburg Standard has given way to the Double Standard.

“My friend from New York now says that this Supreme Court nominee has to pass some ‘special test’ to show his judicial independence. He ‎says Judge Gorsuch, a highly respected, experienced jurist, must preview his approach or even prejudge legal issues that could come before him, like whether the president’s executive order on refugee vetting is ‘constitutional.’ This is clearly an effort to get Judge Gorsuch to prejudge not on a matter that could be in the federal courts, but to prejudge on a matter that is in the federal courts right now. 

“Senator Schumer is not alone in wanting to replace the Ginsburg Standard with a new Double Standard. His colleague who serves on the Judiciary Committee, the senior Senator from Connecticut, also says that Judge Gorsuch, for the first time with Supreme Court nominees, has some ‘special obligation’ to give his views on ‘specific issues,’ without the benefit of the judicial process that Justice Sotomayor noted was so important.

“Under our colleagues' approach, there is no need to review the record in the case. No need to do any legal research. No need to hear the best arguments from each side. No need to deliberate with your colleagues on the bench to arrive at the correct result. Nope. Just give a drive-by legal conclusion on a complicated, and consequential, matter of constitutional law. 

“Mr. President, let’s be clear about what’s going on here.  This new ‘special test’ and ‘special obligation’ aren’t about ensuring Judge Gorsuch’s judicial independence; they are about compromising it. Our friends on the other side of the aisle want to constrain his ability to rule in a later case according to the facts and the law by holding him to what he said in their meetings or what he said under oath at his hearing.  So in the upside down world of my Democratic friends, Judge Gorsuch must lose his judicial independence — both as a sitting circuit court judge and as a future Supreme Court Justice — in order to prove his judicial independence. 

“As Justice Ginsburg and Justice Breyer and Justice Sotomayor all noted, the process of judging is about having an open mind, seeing what the facts are in a particular case, hearing the arguments on both sides, and making what the judge believes is the correct ruling according to the law.  It’s not about a judge hemming himself in before a legislative body by previewing how he would view a legal issue, or as Senator Leahy noted, announcing the legal test he might apply in a particular case.  And it’s definitely not about that judge saying whether something in the abstract is constitutional.

“So under this Double Standard, Senators must respect the need for judicial independence of the Supreme Court nominees of Democratic Presidents, even when those nominees espouse views that are far outside the mainstream, like suggesting there is a constitutional right to prostitution and urging the abolition of Mother’s Day. 

“But under this Double Standard, Senators can compromise the judicial independence of clearly mainstream Supreme Court nominees of Republican Presidents, even when those nominees are, like Judge Gorsuch, well-known proponents of maintaining judicial independence who have a long record on the issue.  And that's not just my view of Judge Gorsuch’s commitment to judicial independence, by the way, that's according to prominent Democrat lawyers, like President Obama's top litigator in the Supreme Court.

“This Democrat Double Standard, though, is not surprising.  Recall that the Democratic Leader said he was prepared to keep Justice Scalia’s seat open for four years. That was made difficult by the nomination of an outstanding candidate in Judge Gorsuch.  So our colleague came up with a new, super-majority standard for his confirmation — a standard that didn’t exist for seven of the eight justices currently on the Court, a fact my friend later had to admit.  The Democrat Double Standard on requiring nominees to prejudge issues is just the latest attempt to come up with something, with anything, to justify opposing an exceptional nominee in Judge Gorsuch.

“Judge Gorsuch is one of the most impressive, most highly qualified nominees to come before us. He’s won kudos from across the political spectrum. Even the top Democrat on the Judiciary Committee couldn’t help but praise him.  Instead of appreciating that our new president has nominated an accomplished, independent, and thoughtful jurist, Democrats are viewing this outstanding nominee as a political problem.  Their base is demanding total resistance to everything.  But they can’t find a good reason to oppose Judge Gorsuch on the merits.  They’re in a pickle.

“So we have this attempt to replace the bipartisan Ginsburg Standard with a Democrat Double Standard. I understand the difficulty of their situation.  But the standard we’re going to follow with this nominee is the same one we’ve followed for Ruth Bader Ginsburg and every other Justice on the Court since then.  No hints. No forecasts. No previews.  Fair consideration.  And an up-or-down vote.”

Related Issues: Judicial Nominations, Supreme Court, Nominations