WASHINGTON -- Twelve years ago at a Senate Judiciary Committee confirmation hearing, Sen. Patrick Leahy propounded a theoretical question about constitutional separation of church and state. "I prefer not to address a question like that," replied the Supreme Court nominee, Judge Ruth Bader Ginsburg. Leahy, a dogged questioner, pressed for an answer. "Senator," Ginsburg persisted, "I would prefer to await a particular case." In response, Leahy was uncharacteristically obsequious: "I understand. Just trying, Judge. Just trying."
Will Pat Leahy, now Judiciary's ranking minority member, and his Democratic colleagues exercise such forbearance when Judge John G. Roberts predictably takes the same posture Justice Ginsburg assumed in July 1993? That would be most unlikely. With Roberts leaving a meager paper trail and a short time on the District of Columbia Circuit Court, Democrats are preparing hundreds of the substantive questions Ginsburg refused to answer.
Accordingly, Roberts's confirmation managers are putting forth the "Ginsburg Standard." That challenges Democratic senators who in 1993 did not criticize the petite (barely more than 5 feet tall), 60-year-old woman when she coolly refused to answer questions. But then, there was no threatened move of the court's political balance to the right as is foreshadowed today by the Roberts nomination.
There is no constitutional or historical precedent for subjecting judicial choices to a senatorial third degree. No Supreme Court nominee was even interrogated by the Senate until 1925, and committee questioning was sporadic until it became standard confirmation practice in 1955. In 1949, former Sen. Sherman Minton refused to appear as his erstwhile colleagues requested and was confirmed anyway.
Ginsburg, who was the first high court nominee by a Democratic president in 26 years, now is described as ideologically "mainstream." In fact, she was on the left edge as former general counsel of the ACLU (American Civil Liberties Union). Six years earlier, conservative Judge Robert Bork was denied confirmation when hostile questioners drew him into a debate on judicial philosophy. So, it was imperative for Democrats to protect Ginsburg by gagging her.