The Ginsburg rule

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Chairing confirmation hearings for Supreme Court nominee Ruth Bader Ginsburg in 1993, Sen. Joseph Biden set certain rules for questioning nominees -- which some of his fellow Democrats seem to have conveniently forgotten.

Justice Ginsburg, while a smart lawyer, had been a radical activist. Her record as an American Civil Liberties Union (ACLU) litigator placed her far outside the mainstream of American law. She had argued for legalizing prostitution, against separate prisons for men and women, and had speculated there could be a constitutional right to polygamy.

Some Republican senators wanted to know if she still held such extreme views. On question after question, though, she refused to answer: The Biden rules stipulated she had no obligation to answer questions about her personal views or on issues that might come before the court. Despite her silence, the Senate confirmed Justice Ginsburg, 93-3.

Yet as President Bush and Judge John Roberts left the White House podium last month, three Democratic senators--Patrick Leahy of Vermont, Richard Durbin of Illinois and Chuck Schumer of New York --already were promising to violate the "Ginsburg Rule," not to mention the Model Code of Judicial Conduct.

Canon 5 of the Model Code, among others, forbids judges or judicial candidates from indicating how they will rule on issues likely to come before the courts or making any statement that would create the appearance of partiality. This rule is critical to an independent judiciary. Justices must remain open-minded when an actual case comes before them. They must not even hint how they would rule.

The obstructionists' ploy will be either to twist Judge Roberts' arm to make him answer unethical questions or, if he refuses, make hay with his (appropriate and ethical) silence. Yet Justice Ginsburg's confirmation hearing entirely deflates this argument.

Mr. Biden began the hearing by noting that nominees almost never testified during their confirmation hearings prior to 1955. In 1949, one nominee was called to testify but refused and was still confirmed. Mr. Biden warned senators not to ask questions about "how [Justice Ginsburg] will decide any specific case that may come before her." Justice Ginsburg, then serving on the same court as Judge Roberts today, followed Mr. Biden's map.

Mr. Leahy asked about the religion clauses of the First Amendment. Judge Ginsburg responded simply: "I prefer not to address a question like that." Mr. Leahy pressed for her interpretation of Supreme Court precedent on the subject, but Justice Ginsburg again demurred: "I would prefer to await a particular case." Mr. Leahy finally backed off: "I understand. Just trying, Judge. Just trying."

Sen. Strom Thurmond asked if Justice Ginsburg thought states could "experiment with and provide for diverse educational environments aided by public funding." She refused to answer: "Sen. Thurmond, that is the kind of question that a judge cannot answer at-large." The senator asked a narrower question about the "constitutionality of some form of voucher system." then-Judge Ginsburg said, "Aid to schools is a question that comes up again and again before the Supreme Court. This is the very kind of question that I ruled out."

Justice Ginsburg refused two senators' requests to address homosexual rights. "[A]nything I say could be taken as a hint or a forecast on how I would treat a classification that is going to be in question before a court." She exercised the rule to avoid any questions relating to sexual orientation: "I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews."

Pressed on another issue, she wouldn't discuss her "personal reactions" to a particular Supreme Court case. "I have religiously tried to refrain from commenting on a number of Court decisions that have been raised in these last couple of days." Indeed.

Near the end of her hearing, Justice Ginsburg explained, "My own views and what I would do if I were sitting in the legislature are not relevant to the job for which you are considering me, which is the job of a judge." The same job, it should be noted, for which Judge Roberts has been nominated.

Sens. Leahy, Durbin and Schumer already have announced they won't honor the Ginsburg Rule for Republican nominees. They are certain to ask inappropriate and wrongful questions of John Roberts, and he is certain not to violate the Code of Judicial Conduct. If senators then pretend to oppose him because of this, their shameful conduct should be seen for what it is.

Edwin Meese, a former U.S. attorney general, is chairman of the Center for Legal and Judicial Studies at the Heritage Foundation (heritage.org). Todd Gaziano, who has worked as an attorney in all three branches of the federal government, is director of the Center.