The Ginsburg standard

Posted: Jul 25, 2005 12:00 AM

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.

 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.