September
1, 2005 The
Ginsburg Precedent By
In 1993, President
Clinton named Ruth Bader Ginsburg to replace Justice Byron R. White on the
Supreme Court. It was agreed and widely
accepted at that time that the President was entitled to a nominee of his
choice. He was not bound to
choose someone with the same legal temperament as Justice White.
He did not. Justice White had
dissented in Roe v. Wade. Yet
President Clinton replaced Justice White with Ms. Ginsburg, who had
written that women not only have a constitutional right to abortion,
but that if the government helps poor women pay for prenatal care and
childbirth expenses, it must also use taxpayer dollars to fund abortions. Justice Ginsburg had
discernible liberal views. These views were far outside the mainstream of
political and legal thought. Yet
she was confirmed overwhelmingly after just 4 days of hearings. This was
not a Republican endorsement of her views or writings; it was an
endorsement of the Constitutionally-mandated confirmation process.
During the
hearings on her nomination, the Senate Judiciary Committee Chairman Joe
Biden, a Democrat from Delaware, stated the following: “I do
think it’s a appropriate to point out that, Judge, you -- I -- 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 the next -- over your tenure on the Court.” In fact, then-Judge
Ginsburg had written extensively on a number of hot-button social issues.
But she was not required to answer Senators’ questions on issues
like abortion, civil rights laws, gay rights, gun-owners rights, rights of
the disabled, school vouchers, separation of church and state, free
speech, or rights of Indian tribes. Republicans at the time “praised her
confirmation as a model for future nominations, and she cleared the
hearings without being forced to pick sides on abortion, gay rights, gun
control and other controversial issues,” according to the Dallas
Morning News. The practice of not pigeon-holing a
nominee’s political views was not new. According to an Associated Press account
of her 1981 confirmation hearing, Sandra Day O’Connor, nominated by
President Reagan to be the first female Supreme Court Justice, “was
repeatedly pressed by Sen. John East, R-N.C., one of the most conservative
members of the 18-member judiciary panel and a leading abortion foe, to
spell out her constitutional view of the 1973 high court decision
legalizing most abortions. She
firmly rebuffed his efforts, declaring in a steady voice, ‘I feel it is
improper for me to endorse or criticize that decision which seems likely
to come back before the Court.’ Similarly, Mrs. O’Connor declined to
give her specific views on a number of touchy subjects likely to be heard
by the court.” This tradition goes back as far as 1864.
When he nominated Salmon P. Chase to the Court, President Lincoln
stated, “We cannot ask a man what he will do, and if we should, and he
should answer us, we should despise him for it.” We would despise him for it because we
rely on judges to approach all cases before them impartially.
Certainly, all judges approach the law with certain views and
opinions. However, that does
not preclude them from ruling impartially based on what the law says and
the case at hand. Our legal
system relies on it. While a judge can certainly be asked to
discuss ideas and perspectives on the law generally, politicians should
not force a would-be Justice to pre-judge certain cases because of there
political implications. Justices
are appointed for life in order to separate them, to the extent that
possible, from this kind of political litmus testing. However, according to statements made by
Democratic leaders recently, it appears this “Ginsburg Precedent,” as
it is now known, may come to an end. Several Senators have made clear that
they will press Judge John Roberts to state how he would rule on certain
cases or issues, hinting that the hundred-plus year-old Ginsburg Precedent
is no longer sufficient. One
has gone so far as to threaten a filibuster if he does not answer their
politically-charged questions, a threat never made during Justice
Ginsburg’s confirmation hearings. What
a difference twelve years make. The judicial process has
been under attack over the last four years.
Now it’s time to make it right.
Now it’s time for Democrats to treat Judge Roberts with the same
amount of deference and respect. #
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