With President Trump's nomination of Judge Brett Kavanaugh to the Supreme Court, GOP senators are singing a constant refrain in anticipation of confirmation hearings. They point to something they call "the Ginsburg rule," contending that at her confirmation hearing, liberal nominee Ruth Bader Ginsburg established a precedent for refusing to answer questions about issues before the Supreme Court.
But that, it turns out, is not really true.
'The woman decides'
It is true that Ginsburg, in her opening statement before the Senate Judiciary Committee, said, as others had before her, that it would be improper for her to give any hints of how she might rule in future cases. Nevertheless, she did answer questions about what she considered settled law, as others have, as well as about her previous decisions as a judge and her extensive legal writing as a lawyer and scholar — including her view that the Constitution includes a right to privacy.
As she put it, "the right to determine one's own life decisions," including "the right to marry, the right to procreate or not, the right to raise one's children — the degree of justification the state has to have to interfere with that is very considerable."
She didn't shy away from discussing the Supreme Court's 1973 abortion decision, Roe v. Wade, and the court's reaffirmation of Roe's core holding in 1992, a year before her hearings. Asked whether the decision to terminate a pregnancy is a fundamental right for women under the Constitution, Ginsburg noted that in both of the Supreme Court's major abortion decisions, the question was: Who decides?
"In Roe, the answer comes out: the individual in consultation with her physician. There is a somewhat of a big brother figure next to the woman," she said. "I think that the most recent decision, whatever else might be said about it, says the woman decides."
A study in evasiveness
By the time she had finished testifying, Ginsburg had also answered questions about affirmative action, gender discrimination, single-sex education, the limits of congressional powers, even Indian treaties and government funding for the arts. Indeed, a recent study shows that she was among the most responsive nominees ever to appear before the senate Judiciary Committee.
Conversely, Neil Gorsuch, Trump's first nominee, was the least responsive nominee in 50 years, according to the study. The evasiveness titleholder, according to the study, was Justice Abe Fortas, nominated by President Lyndon Johnson to be chief justice in 1968. Pummeled by hostile senators, both Democrat and Republican, Fortas said next to nothing at his confirmation hearing, then saw his nomination filibustered to death. He ultimately was forced to resign from the court in disgrace.
The study of Supreme Court nominee responsiveness was authored by University of Georgia law professor Lori Ringhand, and Paul M. Collins Jr., a professor of legal studies at the University of Massachusetts, Amherst. As Ringhand explains it, she and Collins combed through all of the answers in every public Supreme Court confirmation hearing, dating back to the first such hearing in 1939.
They coded two types of responses: If a nominee refused to answer on grounds that the issue might come before the court, that was considered a privileged response based on ethical concerns of not prejudging a specific question. If the nominee firmly answered the question, for instance, as Ginsburg did about abortion, that was coded a firm reply.
Drawing the line
Ginsburg had a relatively high percentage of privileged answers, but that was more than offset by her high percentage of firm answers. Gorsuch, by contrast, had fewer privileged answers, but a near record-setting high number of refusals to give firm answers.
Typical was an exchange with Sen. Richard Blumenthal, D-Conn., over the Supreme Court's 1954 decision declaring segregation in public schools unconstitutional.
Blumenthal: "Do you agree with the result?"
Gorsuch: "Brown v. Board of Education is a correct application of the law of precedent."
That answer is a total waffle, as Ringhand observes, because the Supreme Court can always overturn precedent. The answer says nothing about whether the Brown decision is settled law, or whether Gorsuch agreed with it. So it didn't count as either a firm answer or a privileged answer in the study.
"Do I really think Gorsuch thinks Brown is on the table? Almost certainly not," said Ringhand. Rather, Gorsuch's strategy was to avoid having to decide which questions to respond to and which ones to refuse. "He was trying to avoid the complicated line-drawing problem by just saying, 'I'm virtually not going to answer anything.' "
And that is particularly galling and problematic for senators, because, as Ringhand observes, "What a nominee agrees to opine on, and what he or she refuses to give an opinion on, does tell us something about what they think is in play as a matter of constitutional law."
In short, it's a signal of what decisions the nominee might be willing to reverse or restrict. And the line-drawing problem may have been "more acute" for Gorsuch, according to Ringhand, because the list of cases he is willing to reconsider may have been larger than he wanted senators to know.
Kavanaugh's paper trail
For Ginsburg, given how much she had written about abortion, it would have been very hard not to answer questions about that subject at her confirmation hearing. And, Ringhand observes, there will be similar issues that Kavanaugh will likely have to address.
"I suspect that Judge Kavanaugh, with his paper trail, will actually give us quite a few firm responses to non-controversial issues that he's written about," she said.
And perhaps even some controversial ones — including his one opinion about abortion, and his many legal opinions and other writings about presidential power, national security and his suggestion that presidents should be immune from criminal investigation.