Judge Kavanaugh Reiterates The Ginsburg Standard

‘No Hints, No Forecasts, No Previews’ And No Hypotheticals


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)


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)


Sitting Supreme Court Justices Have Reaffirmed The Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’

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)

THEN-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)

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)

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.” THEN-JUDGE SONIA 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)

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, 2010)

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)



Related Issues: Supreme Court, Judicial Nominations