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Bench Memos

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Ginsburg and the Ginsburg Standard



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Senator Schumer and others on the Left are now feverishly trying to establish that Ruth Bader Ginsburg in her confirmation hearing did not in fact faithfully and consistently adhere to her stated rule of providing “no hints, no forecasts, no previews” about any issues that might come before the Court. This effort is amusingly beside the point. There is little or no point in parsing the counterexamples that Schumer and company provide, for, if true, they amount to an indictment of Ginsburg, not to an argument against the Ginsburg Standard. As Ginsburg declared in her opening statement at her confirmation hearing:

Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

Judges in our civil are [sic] in our system are bound to decide concrete cases, not abstract issues. Each case comes to court based on particular facts, and its decisions should turn on those facts and the covering law stated and explained in light of the particular arguments the parties or their representatives present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case; it would display disdain for the entire judicial process.



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