Washington lawyer Jay T. Jorgensen has prepared a paper for the conservative Federalist Society that summarizes the Ginsburg Standard. He lists seven types of questions she would not answer: no hypotheticals; no requirement for universal legal expertise; no questions outside the nominee's case experience; no cases likely to come before the Supreme Court; nothing regarding management of the U.S. Judiciary; nothing about evolving areas of the law; no discussion of the nominee's personal feelings.
When Republican Sen. Strom Thurmond asked about school vouchers, Ginsburg replied: "Aid to schools is a question that comes up again and again before the Supreme Court. That is the very kind of question that I ruled out." When Republican Sen. William Cohen asked about "sexual orientation," she answered: "I cannot say one word on that subject that would not violate what I said had to be my rules about no hints, no forecasts, no previews."
Sen. Charles Schumer, probably the most intellectually rigorous Democrat on the Judiciary Committee, was not yet a senator when the Ginsburg Standard was established. Elected in 2000 along with George W. Bush, Schumer has made no secret of his desire to impose an ideological test on the president's judicial selections. His means of achieving that is through interrogating nominees on legal "doctrine."
When Roberts paid a courtesy call on Schumer Thursday, the senator handed him 70 questions for answers intended to indict the nominee as a right-wing extremist unfit for the Supreme Court. Roberts will not do that. He did not in 2003 when Schumer was one of three Judiciary members (Sens. Edward M. Kennedy and Dick Durbin were the others) opposing Roberts for the D.C. Circuit prior to Senate confirmation by voice vote. Schumer voted against Roberts for refusing to discuss his "judicial philosophy" and past Supreme Court opinions -- precisely the kind of questions that Ginsburg would not entertain.
John Roberts looks like Chuck Schumer's worst nightmare. Following the quiet path to confirmation forged by Ruth Ginsburg, Roberts would significantly alter the course of the federal judiciary. Schumer's frustration is profound because Roberts's conservative legal colleagues consider him another Antonin Scalia, but without the fireworks.
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