Severino and Scaturro: Amy Coney Barrett deserves same fair hearing Justice Ginsburg once received

During her confirmation hearing in 1993, then-Judge Ruth Bader Ginsburg declined to answer any questions about issues that may come before her on the Supreme Court. 

She famously said that a “judge sworn to decide impartially can offer no forecasts, no hints,” about how she would rule on a case, “for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”  Ginsburg also quoted Justice Oliver Wendell Holmes, “[O]ne of the most sacred duties of a judge is not to read [her] convictions into [the Constitution].”  

Applying what has come to be called the “Ginsburg Standard,” she refused to answer nearly 60 questions over the course of her hearing.  Since then, every Supreme Court nominee has followed suit.   

BARRETT TO PRAISE SCALIA IN OPENING HEARING STATEMENT, SAY COURT SHOULD NOT MAKE POLICY

At his hearing, Justice Stephen Breyer said he did “not want to predict or commit myself on an open issue that I feel is going to come up in court.”  Similarly, Justice Elena Kagan suggested that “it would be inappropriate for a nominee to talk about how she will rule on pending cases or on cases beyond that that might come before the court in the future,” while Justice Sonia Sotomayor refused to “engage in a question that involves hypotheses.” 

Indeed, though it is now called the Ginsburg Standard, nominees’ refusal to answer hypothetical questions about hot-button topics has been the norm for virtually the entire period nominees have appeared before the Senate Judiciary Committee. 

In 1939, Felix Frankfurter said, “I should think it improper for a nominee no less than for a member of the court to express his personal views on controversial political issues affecting the court.”  William Brennan, who would become a liberal lion of the court, asserted at his hearing in 1957 that he had “an obligation not to discuss any issues that are touched upon in cases before the court.”   

But while the Ginsburg Standard has historically been respected by the Senate, there have been exceptions, and they were not to the Senate’s credit. In 1987, for example, Joe Biden was chairman of the Judiciary Committee. 

After initially suggesting he would stand up to liberal special-interest groups and support the nomination of Judge Robert Bork, Biden faced the predicted pressure and immediately caved. The pressure worked. Biden flip-flopped and promised to do everything in his power to oppose the nominee, warning President Reagan that “you’ll have trouble on your hands” if he nominated Bork. 

Like Justice Ginsburg, Judge Barrett is a trailblazer, a brilliant jurist, and a kind and remarkable woman.

Sure enough, during Bork’s hearing, Biden attacked. He criticized Bork based on Democrats’ objections to the Reagan administration’s policy agenda rather than on the judge’s record. And Biden used hypotheticals about “our tradition of progress” and “rights of individuals in a changing world” to suggest that Bork was unfit to serve on the Supreme Court. 

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Biden’s performance was so bizarre that even the Washington Post criticized him, saying that Bork deserved a fair hearing but asking, “How can he possibly get one from Sen. Biden, who has already cast himself in the role of a prosecutor instead of a juror in the Judiciary Committee?”   

Biden went on to serve as chairman of the committee for more than seven additional years, including during the Ginsburg confirmation. Apparently forgetting his aggressive posturing during the Bork hearing, Biden agreed that the Ginsburg Standard was the correct approach for nominees. He assured Ginsburg that “my questions about a nominee’s judicial philosophy are not aimed at getting answers about specific cases. You have said you would object, as in my view you should, to being asked to prejudge a case likely to come before the Supreme Court.” 

So senators have a choice to make. Judge Barrett’s confirmation hearing begins on Monday. They can choose to apply the Ginsburg Standard, which was also Biden’s standard at the time, or they can opt to revert to Biden’s earlier double standard based on politics and partisanship.  

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Like Justice Ginsburg, Judge Barrett is a trailblazer, a brilliant jurist, and a kind and remarkable woman. Like Justice Ginsburg, Judge Barrett has emphasized the importance of impartiality, explaining, “We shouldn’t be putting people on the court who share our policy preferences. We should be putting people on the court who want to apply the Constitution.” 

And like Justice Ginsburg, and all Supreme Court nominees, Judge Barrett deserves a fair hearing that focuses on her legal qualifications rather than on partisan smears. Senators should honor Justice Ginsburg’s legacy and her service to our country by holding Judge Barrett to the same standard that other justices have been held to.       

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Frank J. Scaturro is vice president and senior counsel of the Judicial Crisis Network and a former counsel for the Constitution to the Senate Judiciary Committee, in which capacity he worked on the nominations of Chief Justice John Roberts and Associate Justice Samuel Alito.