The Corner

Law & the Courts

The New York Times’ Divergent Descriptions of Elena Kagan and Amy Coney Barrett

At the New York Times, Adam Liptak says that “Barrett’s Testimony Is a Deft Mix of Expertise and Evasion” because of her adherence to the Ginsburg Rule, which states that judicial nominees should give “no hints, no previews, no forecasts” as to what they might think about legal issues that could come before the Court. In 2010, the Times described Elena Kagan’s fidelity to the Ginsburg Rule thusly: “Kagan Follows Precedent by Offering Few Opinions.

Remarkably, the Times believes it to be consistent with its standards to describe the exact same behavior from two nominees to the same position differently. Predictably, it characterizes the Republican nominee’s conduct as evasive, and the Democratic one’s as dutiful.