‘Ginsburg standard’ pits parties

The Senate Judiciary Committee split along party lines yesterday over whether Judge John G. Roberts Jr. must answer questions about his views on issues such as abortion and civil liberties during this week’s confirmation hearings.

“No matter how badly senators want to know things, judicial nominees are limited in what they may discuss,” said Sen. Orrin G. Hatch, Utah Republican. “Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues.”

Referring to the so-called “Ginsburg standard,” Mr. Hatch said Ruth Bader Ginsburg’s handling of questions during her Supreme Court confirmation in 1993 laid groundwork for why nominees should be allowed to avoid answering certain questions.

“She said, quote, ‘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,’ unquote,” Mr. Hatch said.

“She refused nearly 60 times to answer questions, including mine,” he said. “[She] did what every Supreme Court nominee has done: She drew the line she believed was necessary to protect her impartiality and independence.”

Democrats said Judge Roberts has a special responsibility to provide answers to tough questions.

“Some have called for a ‘dignified process,’” said Sen. Russell D. Feingold, Wisconsin Democrat, who graduated from Harvard Law School the same year as Judge Roberts.

“If by ‘dignified’ they mean that tough and probing questions are out of bounds, I must strongly disagree,” Mr. Feingold said.

Sen. Patrick J. Leahy of Vermont, the committee’s ranking Democrat, called the hearing “the only chance that … we the people have to hear from and reflect on the suitability of the nominee to be a final arbiter of the meaning of the Constitution.”

In opening the first Supreme Court confirmation hearing in 11 years and the first of a chief justice in nearly two decades, committee Chairman Arlen Specter, Pennsylvania Republican, said, “There are no firmly established rules for questions and answers.”

Mr. Specter also said that it “is not appropriate to ask a question about how the nominee would vote on a specific case.”

Sen. John Cornyn, Texas Republican, told Judge Roberts that some committee members “will try to entice you not to follow the rules of ethics and the long tradition described by Justice Ginsburg.”

“But that should not concern you,” Mr. Cornyn said. “Don’t take the bait.”

The committee’s Democrats, meanwhile, circulated a press release titled: “Correcting the Record: Justice Ginsburg’s Answered Questions During Her Supreme Court Nomination Hearing.”

“Any assertion that then-Judge Ginsburg did not answer substantive questions at her Supreme Court nominations hearing is false,” the release said. “The only questions Justice Ginsburg refused to answer were questions about how she would rule on specific fact situations or issues in potential upcoming cases.”

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