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"No Forecasts, No Hints"
Ruth Bader Ginsburg's gift to future Supreme Court nominees
The most significant moment in Ruth Bader Ginsburg’s confirmation process might well have come in her opening statement at the confirmation hearing. In that statement, Ginsburg declared that her testimony could offer “no forecasts, no hints” on how she “would cast [her] vote on questions the Supreme Court may be called on to decide.” If she were to provide such “forecasts” or “hints,” she would “act injudiciously” and “display disdain for the entire judicial process. Here is her position in fuller context:
Because I am and hope to continue to be a judge, it would be wrong for me to say or to 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 comes to court 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 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.
(I’m quoting the transcript of her oral remarks; the prepared statement that she submitted differs trivially.)
Later in her testimony, Ginsburg, in explaining why she would not answer a question, invoked “what I said had to be my rule about no hints, no forecasts, no previews.”
Ginsburg thus encapsulated what has come to be known as the Ginsburg Rule (or the Ginsburg Standard). Notably, not a single senator pushed back against Ginsburg on the Ginsburg Rule, much less threatened to vote against her confirmation because of it.
Ginsburg was the first Supreme Court nominee of a Democratic president since Lyndon B. Johnson’s presidency, and the first such nominee since the outbreak of the modern confirmation wars in the 1980s. She thus set an important precedent by her crisp articulation of the Ginsburg Rule, a precedent that many later Supreme Court nominees and their proponents have been eager to embrace.
In an essay that she wrote shortly after serving as special counsel to Senator Joe Biden on Ginsburg’s nomination, then-law professor Elena Kagan complained that the Ginsburg Rule, and the Senate Judiciary Committee’s acquiescence to it, meant that Ginsburg’s confirmation process “t[ook] on an air of vacuity and farce.” Kagan particularly criticized Ginsburg’s “favored technique” of a “pincer movement”:
When asked a specific question on a constitutional issue, Ginsburg replied … that an answer might forecast a vote and thus contravene the norm of judicial impartiality.... But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling.
Kagan proposed her own alternative to the Ginsburg Rule, under which a nominee would avoid “making a commitment (whether explicit or implicit)” on an issue that might come before the Court but would be expected to “stat[e] a current view as to a disputed legal question.” Kagan of course recognized that the line between these two categories wouldn’t always be clear, but opined that there were “many easy cases” in which “a nominee can say a great, great deal before making a statement that, under this standard, nears the improper.”
As a matter of crass politics, Ginsburg had a lot of leeway to adopt a standard much more permissive than “no forecasts, no hints.” Her nomination had not hit any bumps, and on the day her hearing opened, Senate confirmation was all but certain: Democrats had a huge margin in the Senate (56-44 after a Texas seat flipped to Republicans in mid-June), and lots of Republicans were already on board.
Republican senators and moderate Democrats were grateful for the Ginsburg Rule, even as liberal Democrats were frustrated by it. The less that Ginsburg said on hot-button issues, the easier it would be for Republican senators to justify, or at least explain away, their votes for her. Conversely, she would have put them on the hot seat by being very outspoken.
That explains why Senator Strom Thurmond, who had been a “firebrand” at Thurgood Marshall’s confirmation hearing in 1967, meekly opened his questioning of Ginsburg by assuring her that if he asked any questions that she thought were “inappropriate to answer,” she should simply “speak out and say so.” Just a few minutes later, when Ginsburg observed that a question of Thurmond’s about a proposed constitutional balanced-budget amendment touched on a matter that might some day come before the Court, Thurmond interjected, “Well, you don’t have to answer it, then, if you feel that you shouldn’t.”
Overall, Ginsburg’s hearing was quite a snoozefest. Early in the first round of questioning, committee chairman Biden commented that three-fourths of the reporters had already left. Eleven days after her hearing ended, the Senate confirmed Ginsburg’s nomination by a vote of 96 to 3. (The only senators who voted no were Jesse Helms, Don Nickles, and Bob Smith.)
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Why didn’t Ginsburg adopt a much more permissive standard, a standard that would allow her to speak more expansively? A cynic might speculate that she was being excessively risk-averse. But I think it is far more sensible to conclude that she genuinely thought that the rule she articulated is the right one. (Whether she consistently abided by it is a different matter.) Indeed, a dozen years later, when John Roberts encountered criticism for refusing to answer certain questions, Ginsburg invoked the Ginsburg Rule and declared that Roberts was “unquestionably right” to decline to answer.
My own view is that there is room for reasonable disagreement on just where the line should be drawn. I will note that when Kagan herself testified as a Supreme Court nominee in 2010, she abandoned her earlier position that a nominee could freely “stat[e] a current view as to a disputed legal question”: “I do not think it would be appropriate for me to comment on the correctness of a precedent of the Court” or “to grade recent decisions of the Supreme Court.”
For purposes of the politics of confirmation, Ginsburg’s invocation of her rule, together with Senate Democrats’ acquiescence in it, has been a great gift to subsequent nominees. That gift has been especially valuable to nominees of Republican presidents, who benefit from the shelter it provides from a generally hostile press.
But every Supreme Court confirmation hearing since Ginsburg’s has involved a nomination made by a president of one political party to a Senate in the control of the same party. So it’s an open question how much respect the Ginsburg Rule would receive when the Senate is under the control of the party opposite the president’s.
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