Bench Memos

The Ginsburg Standard and the Schumer Double Standard

Senate Minority Leader Chuck Schumer, a master of the double standard, has already embarrassed himself by attempting to rewrite history about the filibuster and invent a fictitious “60-vote standard” for the current nominee.  Not satisfied with his two Pinocchios for that fib, he’s now holding Judge Neil Gorsuch to a standard completely at odds with that applied to nearly all sitting members of the Court. As Gorsuch meets with more Senate Democrats today expect to hear him being held to unreasonable standards yet again as Senators cast about for some excuse to oppose this highly-qualified nominee with fans on both sides of the aisle.

The Senate historically was deferential in confirming the President’s judicial picks; it was only in the 20th century that the nominees were even asked questions, and it wasn’t until the Bork era that they faced serious partisan scrutiny.  The modern standard for nominees in answering questions during their confirmation hearings is the so-called “Ginsburg Standard.”  During her 1993 confirmation hearing, Justice Ruth Bader Ginsburg invoked her ethical obligation not to answer questions about cases likely to come before her on the Court.  Justice Ginsburg testified, “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.”  Over the course of her hearing, Justice Ginsburg refused to answer nearly 60 questions out of concern for maintaining her judicial independence and impartiality.  Her reticence notwithstanding, Justice Ginsburg was overwhelmingly confirmed by a vote of 96-3.

Every subsequent nominee has followed the Ginsburg Standard.  Just a year after Ginsburg’s own confirmation, Justice Stephen Breyer stated, “I do not want to predict or commit myself on an open issue that that I feel is going to come up in Court.”  Chief Justice Roberts noted that this “has been the approach that all of the Justices have taken.”  Justice Alito similarly cited precedent and judicial ethics not to address questions that might come before the Court.  Justice Elena Kagan – despite having advocated for more candor from nominees when she was on the other side of the witness table – testified to the Senate Judiciary Committee that her “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.”  Likewise in her hearing, Justice Sonia Sotomayor stated, “I can’t engage in a question that involves hypotheses.”

So it took veteran Court watchers by surprise when Senator Schumer faulted Gorsuch for not being willing to answer questions about hot legal topics including the constitutionality of a ban on Muslims, the Emoluments Clause of the Constitution, and about whether he had “grave concerns” about President Trump’s use of executive power.  After all, it doesn’t take a Constitutional law scholar to recognize that any of these issues could easily come before the Supreme Court in the future. 

Ginsburg Standard, meet the Schumer Double Standard.  Prior to Chief Justice John Robert’s confirmation hearing, Senator Schumer cited Roberts’ short time on the bench as one reason he should be more explicit about how he would rule in different cases.  However, when Justice Elena Kagan – who had never sat on any court – was before the Senate, he claimed that her judiciary questionnaire was so detailed they didn’t need to wonder what her judicial approach would be.  And while he mentioned cases to her that he personally disagreed with, he clarified that he didn’t expect her to comment on specific cases.  He didn’t ask Justice Sotomayor a single question about a case that might come before the Court.

It’s clear that, for Schumer, the overarching principle isn’t one of, well, principle.  It’s about the party of the nominee.  Last week on the Senate floor Senator Schumer said, “This new nominee to the Supreme Court has to pass a special test, in my opinion, of true independence from the President.”  That’s about as close as he will likely get to admitting his real objective: to hold Republican nominees to a stricter standard that he used for nominees of his own party.