If this week’s hearings seem devoid of serious content, it is due to the little known Ginsburg Rule. Today’s column discusses how we can restore some serious content to confirmation hearings.
This week, the public is again witnessing the ritualistic exercise of the confirmation of a Supreme Court nominee. Of course, the outcome of Sonia Sotomayor’s hearings is not much in doubt. What has been conspicuously absent is substance. The vast majority of questions and answers remained on a shallow and predictable level where Sotomayor did little more than describe current doctrines and case law — avoiding disclosures of her own views. What is most striking is how Sotomayor’s statements were virtually identical to both her conservative and liberal predecessors.
The content-light character in these hearings is largely the product of the “Ginsburg rule” — named after Justice Ruth Bader Ginsburg, who refused to answer questions in her 1993 confirmation hearing about any case or matter upon which she might later vote. Backed by a Democratic majority, she simply declared, “I’m not going to give an advisory opinion on any specific scenario because as clear as it may seem to you, I think I have to avoid responding to hypotheticals because they may prove not to be so hypothetical.”
Later nominees for both parties have relied on the Ginsburg rule to turn the hearings into prolonged photo-ops for senators, who largely ask wafer-thin questions to solicit largely scripted answers.
The Ginsburg rule allows nominees to get by with meaningless sound bites that promise to respect precedent, the Framers and collegiality in general. This is akin to a surgeon general nominee explaining how veins bring blood throughout a body. It tells the public nothing about a nominee’s philosophy or purpose before giving her life tenure on the world’s most powerful court.
At the hearing in 2005 for John Roberts to become chief justice, the public heard animated discussions of the movie Doctor Zhivago and baseball analogies. Even Judge Sotomayor was asked on Tuesday about the national pastime.
The ‘Roe’ recital
This hearing has proved to be the same formulaic event. Reporters excitedly reported how Sotomayor expressed support for such doctrines as stare decisis to uphold precedent as though a nominee is likely to announce her intention to discard precedent and shape the law in her own image. These answers have been virtually identical for conservative and liberal justices. Consider the common question over the validity of Roe v. Wade and its successor decision in Planned Parenthood v. Casey upholding the right to an abortion. Here is Roberts’ response to the Roe question: “As of ’92 (in Casey), you have a reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles.” Here is Sotomayor’s response: “The court’s decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court. … That is the Supreme Court’s settled interpretation of what the core holding is and its reaffirmance of it.”
Ironically, while she skirted questions about Roe v. Wade during her confirmation, Ginsburg had no problem discussing her views once she was confirmed — despite the fact that she is likely to vote on these issues while on the court. Recently, Ginsburg said the Roe decision was predicated on a desire of some people to diminish “populations that we don’t want to have too many of” a curious claim that would have transformed her Senate hearing. Likewise, Justice Antonin Scalia has spoken on issues pending before the court such as detainee rights and separation of church and state. It appears that this information about a nominee’s views is improper only when it is the most relevant.
A nominee’s legal philosophy is rather difficult to understand without discussing legal doctrines. It is like watching The Sound of Music without any of the musical numbers. One can certainly appreciate the acting, but you can hardly get a feel for the movie without the songs.
Once you discard answers that simply restate basic legal doctrines or principles, little is revealed in these hearings that you could not find in a standard legal hornbook. The Sotomayor hearings have been long on insights into her personality and short on insights into her philosophy.
Yet, despite her moderate voting record, she has some worrisome rulings for civil libertarians. If Sotomayor votes the way she has on the 2nd Circuit, liberals could still lose ground on the Supreme Court over free speech, student rights and other core areas. Her life story will mean precious little to those people who might be stripped of rights or denied legal protections. For example, Sotomayor held in one case that schools could discipline students for statements that they made on a blog in their personal time. The impact of such a sweeping denial of free speech rights is hardly lessened with the consideration of Sotomayor’s life story.
Mum can’t be the word
There is a simple solution to returning substance to the confirmation process: End the Ginsburg rule by insisting that nominees answer questions about their specific views on constitutional rights. The only basis for refusing to be forthright should be limited to questions regarding how a nominee would vote on pending cases.
The current system works well for presidents, nominees and senators. It does little for the public or the system of justice. If you found yourself bored to tears during these hearings, don’t just change the channel — change the system and demand substance when we next select a justice for the United States Supreme Court.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
July 16, 2009 — USA Today
eniobob,
Thank you for that link. It is terrible that Democrats have been so bludgeoned over the years that they fail to articulate their principles and the reasons for them. I was also disgusted that because of the clubby Senate atmosphere, not one Democrat made a forceful protest of the fact that Judge Sotomayor’s questioning, by particularly Sessions and Cornyn, was flat out bigotry.
“Dahlia Lithwick wrote a piece for Slate a couple of days ago, and then went on Rachel Maddow’s show to emphasize a point that I fear too few others have made this week”
http://firedoglake.com/2009/07/17/late-night-elephants-on-parade-15/
Prof. exactly which planet do you live on??? You actually want them to express their personal opinions? Have you noticed what a disaster ensues when a legislator expresses his/her opinions on important issues? I’ve give you an example: How terrifying is it when a member of the legislature mentions that the Earth is 6000 years old?
Good grief.
“Mespo:
The Three Stooges and the Apostle John — not bad for a morning’s work.”
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I’m working on a comment marrying Karl Rove, Dumbo, and the Marx Brothers’ “Animal Crackers” in one big knot. It’s really too easy!
Here’s a sample:
“Capt. Spaulding: [to Mrs. Rittenhouse and Mrs. Whitehead] Let’s get married.
Mrs. Whitehead: All of us?
Capt. Spaulding: All of us.
Mrs. Whitehead: Why, that’s bigamy.
Capt. Spaulding: Yes, and it’s big of me too.”
I agree that the Ginsburg rule is an abomination. A person proposed for Secretary of the Treasury, for example, can be thoroughly grilled on all aspects of fiscal and monetary policy, but Supreme Court nominees are basically subjected to partisan dog and pony shows.
Part of the problem is that cabinet appointments are inherently political positions. Politicians know how to ask political questions and confirmation hearings in those instances can be used to air important policy disagreements. When a judicial appointment is up for confirmation, committee members often appear out of their depth. For example, “Do you agree with Roe v. Wade?” is a stupid question. But when have you ever heard a committee member ask a judicial candidate his or her views on the scope and extent of the right to privacy?
Prof. Turley’s column nails it.
jonathanturley 1, July 16, 2009 at 10:26 am
Mespo:
The Three Stooges and the Apostle John — not bad for a morning’s work.
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mespo,
You’re a master at your art – effortlessly seamless!
The Law of Unintended consequences always reigns supreme. The Ginzburg thesis was wrong when the Democrats were in charge and came back to bite them when the Republican’s gained power. Imagine an inability to question a man like Robert Bork on his judicial outlook. These hearings sicken me in another way also and that is the “Men’s Club” attitude in the senate of not questioning each others integrity. What I heard from both Sessions and Cornyn was blatantly racist, “Splain me” indeed, and yet not one of their colleagues called them on it. While Judge Sotomayor is a little too centrist for my taste, her ability to handle the most bigoted questioning with patience and aplomb did credit to her.
IS good point, I was thinking that if I was in that room that someone should thank Franken for bringing in humor to what has become a joke. I say confirm her and be done with it. I don’t care what anybody says, she is a wise latina woman who in my opinion would make better decisions better than any white, black, green, yellow, blue faced person who thinks different.
mespo72^3:
“We’ve become a nation of “playing it safe,” in direct contravention of what we once were: settlers, immigrants, entrepreneurs, and leaders in all manner of things. Those occupations have little in common with “playing it safe.””
well said. we have become or are fast becoming a nation of non-thinking, non-risk taking, lazy people waiting for the government to feed, cloth and protect us from the extravagant manifestations of nature.
So much for a people who came with nothing from all points of the compass and developed a civilization unmatched in human history. Nothing lasts forever and it is a pity that we have as a people, forgotten or rejected our beginnings and the sacrifices of our ancestors which left us with so much. We have denigrated their accomplishments by seeking the “warm” embrace of a “soft tyranny”.
How can we get prospective Justices to answer real questions? There is a precedent now to give bland “I simply follow the law” answers.
There doesn’t seem to be any downside to refusing to answer questions in a substantial way, and plenty of downside to being candid. Judge Bork was willing to engage in discussions with the Committee, and it certainly didn’t help him.
What makes Ginsberg is responsible for this? She seems to be just one point in a continuum.
Clarence Thomas, for example, refused to say whether he believed in a Constitutional right to abortion. He also claimed that he never even had a discussion about Roe v. Wade, despite being a law student at the time it was decided. I’m not claiming it started with Thomas either, just that Ginsberg was not the first to refuse to discuss legal questions.
bdaman:
Actually he makes more sense than most of them, at least with Franken he knows his question is ludicrous.
Mespo:
The Three Stooges and the Apostle John — not bad for a morning’s work.
“A nominee’s legal philosophy is rather difficult to understand without discussing legal doctrines. It is like watching The Sound of Music without any of the musical numbers. One can certainly appreciate the acting, but you can hardly get a feel for the movie without the songs.”
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I don’t even appreciate the “acting” going on in that hearing room. It’s a tad wooden and stilted for me, and there is little emotion or drama, but lots of humor, if you consider the utter foolishness emanating from Kyl, Sessions, and occasionally, Hatch. They’re better than the Three Stooges.
As for the Ginsburg Rule, I say ban it. Who says I can’t ask an appointee where they stand on the legal issues of the day, and what arrogance it id to tell me they won’t. Try that strategy on your next job interview. We’ve become a nation of “playing it safe,” in direct contravention of what we once were: settlers, immigrants, entrepreneurs, and leaders in all manner of things. Those occupations have little in common with “playing it safe.” It’s almost Biblical irony: “He who loves his life, loses it.” (JOHN 12:25). Now, it’s he who plays it safe….
ironically, “Change” of any kind seems unlikely under Obama. He has the whole congress and media behind him. Any changes to the system in the next couple of years will mostly benefit politicians and their favorite interest groups.
People in Minn. must be so proud to have Franken
Well Professor Turley,
How do we go about fixing the system when it is immune from doing what is correct in the first place?
How many times have attorneys been forced to settle a case or face some abuse by the very same system we wish to protect? Yet reject when the system we are forced to deal with, is the system we complain of and yet work in.
If Professors cannot have academic freedom, can we be free to mandate what we feel is right?