Bench Memos

Roberts and the Ginsburg Standard

In trying to deny that it would be appropriate for Roberts to invoke the Ginsburg Standard–”no hints, no forecasts, no previews” about any issues that might come before the Court–the Left is now claiming that Ruth Bader Ginsburg was some sort of consensus candidate. It is not clear what logical bearing that claim has on a nominee’s ethical obligations to preserve both the fact and appearance of impartiality. But the claim is in any event wrong.

It is apparently true that Senator Hatch indicated to President Clinton that he believed that Ginsburg would face a much easier confirmation process than some of the other candidates Clinton was considering and that he himself would support her. But Hatch made clear that he believed that a president is entitled to considerable deference in selecting a Supreme Court justice and never suggested that Ginsburg was the sort of nominee that Hatch himself would select. In other words, Hatch was helping Clinton identify a nominee whom Clinton would like and who would be confirmed without substantial difficulty. Any Senate Democrat who adopted the same perspective with President Bush would have John Roberts at the top of his list.

As Hatch explained several weeks ago in an NRO essay (italics added):

President Clinton sought my input without my demanding it because he believed it would help him fulfill his constitutional responsibility for making judicial nominations. He did so not because Senate Republicans threatened filibusters or demanded some kind of veto power over his nominations. We did not try to impose a “consensus” standard or insist that a nominee meet some super-majority “widespread support” threshold.

Some have apparently cited a passage in a book by Hatch in which Hatch supposedly takes credit for calling Ginsburg to Clinton’s attention. I haven’t read the passage, and, in the tradition of politicians’ memoirs, it may well be that Hatch makes such a claim. But, especially in light of the Clinton administration’s very aggressive efforts to nominate female judges, one would have to be very naïve to believe that Ginsburg wasn’t on the Clinton White House’s radar screen from the outset. In any event, the point doesn’t affect the nature of the assistance that Hatch sought to provide.

As I have previously shown, Roberts is by any measure far more “mainstream” than Ginsburg was. The fact that Senate Democrats are far more hostile to him than Senate Republicans were to Ginsburg says much about Senate Democrats and nothing about Roberts. And it also says nothing about the appropriateness of Roberts’s invoking the Ginsburg Standard.

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