What is the 'Ginsburg Rule' for Supreme Court Confirmation Hearings?

What’s the story?

• One of the most notable aspects of Supreme Court confirmation hearings in recent decades is the degree to which nominees decline to answer questions asked by senators that might provide a preview of how they would rule on the issue.
• The phenomenon is known as the “Ginsburg rule” after the late Justice Ruth Bader Ginsburg, who was very effective in politely deflecting dozens of such questions that were posed during her 1993 confirmation hearings. She also explained why she declined to answer them:

“You are well aware that I come to this proceeding to be judged as a judge, not as an advocate. 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 such questions, I would act injudiciously… 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.”

• Then-Senate Judiciary Committee Chairman Joe Biden (D-DE) explained at the time that he supported Ginsburg’s decision not to answer certain questions:

“But I do think it’s appropriate to point out that, judge, you not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms, probably, over your tenure on the Court.”

• Ginsburg wasn’t the first judge to decline to answer questions about how they would rule on a matter that could come before them in the future, but her example has been employed by other nominees to the Supreme Court and other federal judgeships in large part because the judicial code requires it.
• Judges and candidates for judicial positions are bound by Canon 5 of the Model Code of Judicial Conduct to abstain from making comments “with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments with the impartial performance of the adjudicative duties of the office.” As the American Bar Association explains:

“Section 5A(3)(d) prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views.”

— Eric Revell

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