Will Senate Apply the Ginsburg or the Barrett Rule to Judge Jackson?

Below is my column in the Hill on the confirmation hearings that start today for Judge Ketanji Brown Jackson. The question is whether there will be a substantive discussion of Jackson’s  approach to judicial interpretation and judicial ethics.

Here is the column:

Pablo Picasso once said, “Learn the rules like a pro, so you can break them like an artist.” Under this standard, the Supreme Court confirmation hearing for Judge Ketanji Brown Jackson could prove to be a masterpiece.

It may depend on the application of two rival rules or models for such hearings. Notably, both were crafted by Democrats, during the 1993 confirmation of Ruth Bader Ginsburg, then, during the 2020 confirmation of her replacement, Amy Coney Barrett.

During Ginsburg’s confirmation, then-Judiciary Committee chairman Joe Biden told her that a confirmation is where a nominee is expected to “answer questions or to discuss your judicial philosophy.” He later expressed concern over how Ginsburg, “at least from my perspective, appeared to be reticent to answer some of our questions even more so than recent nominees.” 

Nevertheless, in her confirmation, Ginsburg declared that she refused to answer questions on her position on particular issues. “I’m not going to give an advisory opinion on any specific scenario,” she explained, “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.”

What became known as the Ginsburg Rule meant that nominees could refuse to answer questions on how they interpret the Constitution on issues like abortion. The rule has been given broader and broader meaning with each confirmation.

I have been a critic of the rule as reducing confirmations to largely contentless staged events where nominees avoid legitimate questions on their interpretative approaches in any given area. Ironically, Ginsburg became known for publicly discussing issues related to pending cases or political questions after she was confirmed.

In 2020, Senate Democrats seemed to abandon that rule and demanded that Amy Coney Barrett confirm her likely vote on pending issues ranging from ObamaCare to abortion rights. Indeed, some senators said they would vote against her if she did not expressly confirm that she would vote to preserve the Affordable Care Act (ACA) and uphold Roe v. Wade. Barrett correctly refused to do so.

While I have been a critic of the Ginsburg Rule in barring discussion of judicial philosophy, it was a dangerous and outrageous demand by Democratic senators to confirm Barrett’s position on pending cases. They insisted Barrett was evasive and was being put on the Court to kill the ACA. It was an absurd claim. As I wrote at the time, the pending case was not a serious threat to the ACA and, if anything, Barrett was most likely to vote for its preservation — which she ultimately did. Nevertheless, Democrats surrounded Barrett with photos of the type of people who could die without the ACA, or with Barrett’s confirmation.

Now, it is a Democratic nominee, and it appears the Ginsburg Rule once again will reign supreme in her confirmation hearing. It may be expanded, too.

In the Barrett confirmation, Democratic senators pledged to vote against Barrett solely on her judicial philosophy. Now, however, Rep. Jim Clyburn (D-S.C.) has declared that, as the Court’s first female black nominee, Jackson’s confirmation is “beyond politics” and the vote is “about the country, our pursuit of a more perfect union.”

After Jackson’s nomination, I noted that, with only one appellate opinion, Judge Jackson’s judicial philosophy remained largely unknown. The reason is simple: Jackson has largely served on the trial level and, despite hundreds of decisions, trial judges are required to follow the precedent of the Supreme Court and their circuit court. Moreover, most trial decisions deal with insular rulings on evidence or outcomes at trial. While there are a couple of longer trial decisions, most of Jackson’s record does not clearly establish her interpretative approach to the Constitution or statutes.

That simple observation has met a torrent of objections. “Above the Law’s” senior editor, Joe Patrice, suggested my questioning of Jackson’s judicial philosophy was a racist dog whistle: “He’s just asking questions! He’d say the same thing about any nominee! It’s a lie, of course. He wouldn’t say this stuff about any nominee.”

On the contrary, I asked precisely that question about Court nominees Samuel AlitoJohn RobertsSonia SotomayorElena KaganNeil GorsuchBrett Kavanaugh, and Amy Coney Barrett. The difference is that some of them had appellate opinions or books illuminating their judicial philosophy. This is not a criticism of Jackson. Indeed, there is a general preference for nominees with lower profiles on interpretative issues — nominees without clear positions that can be attacked by the other party.

Yet this seems off-limits with Jackson. Even raising the lack of clarity on Jackson’s judicial philosophy was said by Patrice to be another “‘lesser Black women’ [attack] with a gentler touch. But the goal is the same.”

In her recent confirmation to the appellate court, Jackson repeatedly refused to discuss her judicial philosophy with senators and, curiously, suggested it would be somehow inappropriate for her to explain her view on constitutional interpretation as a lower court judge. Jackson may now use the Ginsburg Rule to refuse to explain her judicial philosophy beyond the most generalized terms.

She also may refuse to answer a critical ethical question: I previously wrote that Jackson should recuse herself from a Harvard case involving race criteria for admission because she serves on Harvard’s Board of Overseers, which describes itself as “critical to the governance of Harvard.” This is not, as Ginsburg said, a hypothetical that “may prove not to be so hypothetical.” It is a real conflict, and the facts are established. Even though Jackson will leave the board in May, before the case is argued before the Court, the underlying facts will not change.

Ethical issues have occasionally arisen in past nominations, like the unsuccessful confirmation of Abe Fortas as chief justice when retainer and speaking fees were raised. Unlike Fortas, Jackson is not accused of any wrongdoing; the issue is how she defines and addresses a conflict of interest.

Moreover, Jackson should be asked if she adheres to the current view of the justices that they are not controlled by the Code of Judicial Ethics. I have also long opposed that view as entirely unfounded.

The question is whether an ethical conflict on a pending case will be treated as falling within the Ginsburg Rule. A nominee could object that a guarantee to recuse could be viewed as a promise in exchange for confirmation. However, at a minimum, she should be able to address generally her interpretation of the ethics code with regard to board memberships and leadership positions.

Before we create a “Jackson Rule” on ethical issues, the Senate should consider the implications of further narrowing the range of permissible questions in confirmations.

There are many things I like about Judge Jackson, including her litigation experience, service as a public defender, and years on the trial court. She has an extraordinary background and a stellar reputation. I do not agree with critics that her alleged support for critical race theory or her praising of the controversial 1619 Project are barriers to being on the court.

One would think that a nominee’s approach to judicial interpretation and judicial ethics would be the most material questions for a senator in giving “advice and consent” on a new justice. Judge Jackson could greatly advance the confirmation process by simply answering these questions.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

119 thoughts on “Will Senate Apply the Ginsburg or the Barrett Rule to Judge Jackson?”

    1. Justice Thomas is still in the hospital. Hope Justice Thomas has his own security and food tasters at the hospital. Not a joke. Still lots of mysteries surrounding Scalia’s death that have never been answered. Dems desperately want another Scotus pick on the court before they are slaughtered in November midterms. We know with Dems the ends (power) always justifies the means (by any necessary).

  1. How will she be treated? Gosh I wonder. Oh wait, skin color, check. Marxist ideology, check, Easy on pedophiles, check. Anti-Christian, check. Pro-abortion, check, Anti-white, check. Well there’s your answer.

  2. Jonathan: Well, the first day of the Jackson confirmation hearing was pretty placid–if you don’t count the fire and brimstone coming from Ted Cruz and Tom Cotton. Judging from some of the comments from your loyal Trump supporters it was cave time by most of the GOP Senators. One typical comment was: “The republicans [he wouldn’t even capitalize the name] will do nothing and fold; that’s the one thing we as their voting base can rely on and trust them to do”. Sour grapes. You voted for them so stop complaining! But all is not doom and gloom. Tom Cotton, the darling of the far-right, did not disappoint. He made clear his point of attack will be on a number of child porn decisions Jackson authored. Cotton will charge Jackson was extremely “lenient” in her sentencing–even though her sentences were well within federal guidelines. Pretty slim pickings but Cotton doesn’t have much else. But Cotton wants to provide red meat for his supporters on the right. He called for long prison sentences for the “rioters’ involved in the protests over the murder of George Floyd and has similarly called for longer sentences for those that like child porn. He has said there are a lot of “empty beds at Guantanamo” waiting for those people. Tough on crime. That’s Cotton’s claim to fame.

    I expect the “fireworks”, if can call it that, will start tomorrow. GOP Senators will want to probe Jackson’s “judicial philosophy”. Some of them may even ask Jackson whether she is a supporter of CRT. Good luck with that one. Jackson is too smart to fall for that ruse. But on “judicial philosophy” Anonymous “the elder” has pointed out rightly in his comment that those, like you, who are “originalists” maintain that “the original intent of the Framers should be paramount…and once that intent has been located, the answers to legal questions will reveal themselves…” It’s like the golden plates Joseph Smith discovered near his home at the direction of the angel Moroni– that became the Book of Mormon and the eternal revealed truth. Today the High Priests of the Federalist Society, many of whom are on the SC, have their own “golden plates’ that tell them exactly what the Founders “intended” and it is only their duty to carry out that eternal revealed truth. But don’t expect Jackson to admit she follows an expansive view of the Constitution, a “living Constitution”, to be interpreted in light of current conditions. No, she won’t fall for that ruse either.

    1. She will be treated with kid f’n gloves. So much respect and deference.
      The rest of us who witnessed the last 2 hearings? We’re all waiting for the witnesses to bravely come forward to say “I was raped back in high school” by this nominee. And have it blased all over the f’n cable news panels.
      Just like the disgraceful circus of slander the Democrats continue to create against anyone other than one of their “own.”
      The Democrats make normal civilized people sick. Absolutely sick.

    2. Any one who has to insert into their speech “I love America and the Constitution” is already in trouble.

  3. Before even considering the Ginsburg or Barrett rules, the question is do the GOP committee members have the will to force use of Senate rule XXVI by refusing to allow a Committee vote to send nominee to full Senate by using quorum rule in Judiciary Committee. Committee is equally split between Dens and GOP and Dems would not have quorum to vote without at least 1 GOP committee member being present for vote to send nomination to full Senate. If Committee fails to vote nominee out of Committee, nomination stalls unless member moves for unanimous consent (almost certain to be opposed by GOP), or a Senator males motion before full Senate to debate Advancement in full Senate. This action would enable GOP to filibuster any attempt at cloture to end debate on motion to advance nominee to full Senate.
    This tactic was successfully employed to stop Biden’s SBA Administrator nominee (Dilawar Syed) earlier this year.

    1. She’s a qualified nominee. There is no reason for them to deny her an up-or-down vote in the full Senate, and if they do that, it will hurt Republicans in November. KBJ’s nomination to be a SCOTUS Justice is a bigger deal than Syed’s nomination to be SBA Administrator.

      1. KBJ’s nomination to SCOTUS being a bigger deal than an SBA nominee is exactly why the GOP should block her nomination.
        Dems have used scorched earth warfare on GOP nominees going all the way back to Robert Bork and it’s time GOP starts using same tactics unless a nominee they find acceptable is put forth. Biden caved to the radical left with KBJ instead of going with Childs who could have garnered bipartisan support.

        1. Bork was rejected with a bipartisan vote in the full Senate. More to the point: the SJC did not refuse to forward his nomination to the full Senate even though a majority of its members believed that he should be rejected. So your claim that the Democrats took a “scorched earth warfare” approach with him is BS. And then Kennedy was approved unanimously.

          My guess is that there will be bipartisan support for KBJ, though nowhere near unanimous. Time will tell.

          1. “Bork was rejected with a bipartisan vote in the full Senate.”

            Bork was one of the most qualified nominations to the Supreme Court. He was rejected because of his conservative view of the Constitution. It was a hatchet job that worked because many Republicans don’t have backbones. Jackson has no such credentials and appears to meet extreme leftist credentials. Bork far surpassed Jackson is one was looking at credentials. The left started the hate and destroy campaign in selecting Supreme Court judges. They did the same with the fillibuster and many other things.

            As usual, ATS is spinning and lying in the process. He is demonstrating how little he knows and how perverted his thinking is.

            The Bork Paradox and the Conservative Legal Movement

            https://americanaffairsjournal.org/2021/08/the-bork-paradox-and-the-conservative-legal-movement/

    1. Just like totally ignoring the Hunter Biden stories………….dems and the MSM do NOT want to talk about nor recall the absolutely despicable and nasty treatment afforded Judge Janice Rogers Brown in her filibustered nomination to the DC Court of Appeals 2003-2005 where this nominee has now sat for less than one year.

      Yet today, dems on the Judiciary Comm. now want to call for peace and love and bipartisanship. One could almost choke on the hypocrisy.

    2. REGARDING ABOVE:

      Kevin W. and Jimmy Matho are more than likely new puppets of The Blog Stooge.

      1. REGARDING THE ABOVE

        His name is numb nuts. He trolls the internet lacking nuts because he has none

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