Judge Barrett Adheres To The Ginsburg Standard

When Asked By Senators To Discuss Cases That Might Come Before The Supreme Court, Justice Ginsburg Said She Could Offer ‘No Hints, No Forecasts, No Previews’ And When Asked To Review Prior Cases, Justice Kagan Said ‘Essentially Grading Past Cases’ ‘Would Be Inappropriate’

JUDGE AMY CONEY BARRETT: “So Senator, I do want to be forthright and answer every question so far as I can. I think, on that question, you know, I’m going to invoke Justice Kagan’s description, which is perfectly put. When she was in her confirmation hearing she said that she was not going to grade precedent or give it a thumbs up or thumbs down. And I think in an area where precedent continues to be pressed and litigated, as is true of Casey, it would be particularly—it would actually be wrong and a violation of the canons for me to do that as a sitting judge. So if I express a view on a precedent one way or another whether I say ‘I love it’ or ‘I hate it’ it signals to litigants I might tilt one way or another in a pending case.” (U.S. Senate Judiciary Committee Hearing, 10/13/2020)

JUDGE BARRETT: “Senator Feinstein, as I said to Senator Graham at the outset if I were confirmed, you would be getting Justice Barrett, not Justice Scalia. So, I don't think that anybody should assume that just because Justice Scalia decided a decision a certain way that I would too. But I’m not going to express a view on whether I agree or disagree with Justice Scalia for the same reasons I have been giving. Justice Ginsburg with her characteristic pithiness used this to describe how a nominee should comport herself at a hearing. ‘No hints, no previews, no forecasts.’ That had been the practice of nominees before her, but everybody calls it the Ginsburg Rule because she stated it so concisely and it has been the practice of every nominee since. So I can’t, and I am sorry to not be able to embrace or disavow Justice Scalia's position, but I really can’t do that on any point of law.” (U.S. Senate Judiciary Committee Hearing, 10/13/2020)


THE GINSBURG STANDARD: ‘No Hints, No Forecasts, No Previews’: ‘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’

THEN-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)

Senate Democrats Have Previously Acknowledged The Importance Of The Ginsburg Standard

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)

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)


STEPHEN BREYER: ‘I Do Not Think I Should Go Into Those [Matters] For The Reason That Those Are Likely To Be The Subject Of Litigation In Front Of The Court’

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)

  • 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)


JOHN ROBERTS: ‘No Hints, No Forecasts, No Previews’

THEN-JUDGE JOHN ROBERTS: “It's a matter of great importance not only to potential Justices but to judges. We're sensitive to the need to maintain the independence and integrity of the court. I think it's vitally important that nominees, to use Justice Ginsburg's words, ‘no hints, no forecasts, no previews.’ They go on the Court not as a delegate from this committee with certain commitments laid out and how they're going to approach cases, they 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 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.” (U.S. Senate Judiciary Committee, Hearing, 9/13/2005)

  • 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)


SONIA SOTOMAYOR: ‘I Can't Engage In A Question That Involves Hypotheses’

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)


ELENA KAGAN: ‘Inappropriate’ For A Nominee ‘Essentially Grading Past Cases’ To ‘Give Any Indication Of How She Would Rule In A Case’

Q: “Was Roe v. Wade, 410 U.S. 113 (1973), an example of the Supreme Court properly reinterpreting the Constitution in light of its timeless principles?” … ELENA KAGAN RESPONSE: “I do not believe it would be appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled law entitled to precedential weight.  The application of Roe to future cases, and even its continued validity, are issues likely to come before the Court in the future.” (Senate Judiciary Committee, Kagan: Response To Questions For The Record, P.2, 2010)


NEIL GORSUCH: ‘If I Indicate My Agreement Or Disagreement With A Past Precedent Of The U.S. Supreme Court … I Am Signaling To Future Litigants That I Cannot Be A Fair Judge In Their Case Because Those Issues Keep Coming Up’

THEN-JUDGE NEIL GORSUCH: “[A]gain, if I indicate my agreement or disagreement with a past precedent of the U.S. Supreme Court, I am doing two things that worry me sitting here. The first thing I am doing is I am signaling to future litigants that I cannot be a fair judge in their case because those issues keep coming up. All of these issues, as you point out, keep coming up. Issues around all of these precedents will be continued to be litigated and are hotly litigated…. I am concerned that I have to look the litigant in the eye in the next case. And if I prejudge that case, they can look at me and say you are not a fair judge, and I have no answer for that.” (U.S. Senate Judiciary Committee Hearing, p. 85, 3/21/2017)


BRETT KAVANAUGH: Sitting Justices ‘Have Made Clear A Couple Things … They Can’t Discuss Cases Or Issues That Might Come Before Them … [And] With Respect To At Least The Vast Body Of Supreme Court Precedent Going Back, You Can’t Give A Thumbs Up Or Thumbs Down On The Case’

THEN-JUDGE BRETT KAVANAUGH: “[A]ll the nominees currently sitting on the Supreme Court, all the justices, have made clear a couple things. First of all, they can’t discuss cases or issues that might come before them. As Justice Ginsburg said, ‘no hints, no forecasts, no previews.’ That also means with respect to at least the vast body of Supreme Court precedent going back, you can’t give a thumbs up or thumbs down on the case. That’s Justice Kagan’s formulation. She said repeatedly, no thumbs up or thumbs down when she was asked, what do you think about this case, what do you think about that case? … That nominee precedent, as I call it, is now, in my view, part of the independence of the judiciary. And that nominee precedent is something I need to adhere to, when I am here as a nominee now.” (U.S. Senate Judiciary Committee Hearing, 9/05/2018)



Related Issues: Supreme Court, Judicial Nominations