While the Senate is in the “advice and consent” phase of the John Roberts nomination to the Supreme Court, it might be worthwhile to look at how the process was approached in the recent past. We hear a lot from the left about questions which should be asked of the nominee, and some liberal Senators want memos from previous administrations to be made available. Our answer of course is to look at how the former Clinton administration handled their nominee, Justice Ruth Bader Ginsburg, and to look over her Senate confirmation hearings.

Hugh Hewitt, has a useful article on this subject, The Ginsburg Precedent where he wrote the following:

“Nothing has changed in 12 years, except that the president nominating the justice is George W. Bush and not Bill Clinton. The MSM will attempt to prop up the wild claims of Senators Leahy and Schumer about the duties of nominees, as the New York Times editorialists did this morning when they wrote “[t]he Senate has a duty to scrutinize his background and to question him closely at his confirmation hearings about substantive areas of the law.” But when biased papers invent such “duties,” or when Ted Kennedy makes the statement that “[n]o nominee, especially a nominee who is well known to have argued ideological positions on issues important to the American people, should be confirmed without full and candid disclosure and discussion of those positions and their importance to him,” the Ginsburg precedent must be close at hand.”

Jay T. Jorgensen has written a document, Precedent From The Confirmation Hearings Of Ruth Bader Ginsburg For The Conduct Of Judical Nominees in which he uses direct testimony from the actual hearings to formulate what questions nominees have to answer, and how they should answer and still be confirmed by an overwhelming majority of both Democrats and Republicans.

Mr. Jorgensen explains Senator Biden’s views on the confirmation process:

“Senator Joseph Biden was Chairman of the Senate Judiciary Committee when Justice Ginsburg was nominated to the Supreme Court in 1993. On July 15, 1993, shortly after Justice Ginsburg’s nomination became known to the Senate, Senator Biden identified the standards he expected senators and judicial nominees to follow in the confirmation process. Importantly, Senator Biden noted that the Senate’s hearings, including the question-and-answer period between senators and the nominee, should not be a “dramatic spectacle” or a “trial.””

“Senator Biden also commented on the extent to which Supreme Court nominees should answer questions about their potential future rulings. Senator Biden said “the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference … between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee’s independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a Justice. But the latter are essential and contribute critically to our public dialog.””

Read now some of Justice Ginsburg’s answers:

“Senator Leahy. Does that mean that the Free Exercise Clause and the Establishment Clause are equal, or is one subordinate to the other?
Judge Ginsburg. I prefer not to address a question like that; again, to talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case and not—-
Senator Leahy. Let me ask you this: In your view of the Supreme Court today–or do you have a view whether the Supreme Court has put one in a subordinate position to the other?
Judge Ginsburg . The two clauses are on the same line in the Constitution. I don’t see that it is a question of subordinating one to the other. They both have to be given effect. They are both—-
Senator Leahy. But there are instances where both cannot be upheld.
Judge Ginsburg. Senator, I would prefer to await a particular case and—-
Senator Leahy. I understand. Just trying, Judge. Just trying.

“Senator Thurmond. What are your views on the constitutionality of some form of voucher system, so that working and middle-class parents can receive more choice in selecting the best education available for their children?
Judge Ginsburg. Senator Thurmond, aid to schools is a question that comes up again and again before the Supreme Court. This is the very kind of question that I ruled out.
Senator Thurmond. Would you prefer not to answer?
Judge Ginsburg. Yes.

“Senator Cohen. What about sexual orientation?
Judge Ginsburg. Senator, you know that that is a burning question that at this very moment is going to be before the Court based on an action that has been taken. I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.

It is quite obvious that even Supreme Court nominees can refuse to answer Senate hearing questions based on a variety of reasons, and still be overwhelmingly confirmed. Please take the time to read all of Mr. Jorgensen’s article for a complete list of Justice Ginsburg’s non-answers, and reasons for not answering.

On the other hand, Kathryn Jean Lopez, has written an article entitled, And So It Begins for Bench Memos, which includes a press release with the entire list of questions which Senator Charles Schumer of New York intends to ask of Judge Roberts. We hope he really doesn’t expect answers for his questions because it would seriously upset the precedent set by nominee Ginsburg in not having to answer questions like those. Please follow the link and read the questions which Senator Schumer plans on getting answers for in this article.

Supreme Court Nominee John Roberts should be able to answer any and all questions in the manner established by Senator Biden’s Judiciary Committee outlined above, and to answer any and all questions in the manner established by “then Supreme Court Nominee Ruth Bader Ginsburg and still receive overwhelming support and an up or down vote confirmation in the Senate.

This entry was posted on Saturday, July 23rd, 2005 at 5:57 pm and is filed under Saturday Evening Judicial Review Post. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.

Tags: Ginsburg precedent, John Roberts, confirmation hearing, Supreme Court, judicial nominee