Flashback: Democrats Used to Respect Ginsburg Rule of Not Asking Judges About Specific Cases

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Senate Democrats have vowed they will force President Donald Trump's Supreme Court nominee Brett Kavanaugh to answer how he will rule on issues such as abortion and gun control, an approach that would break a precedent Supreme Court nominees under both Republican and Democratic presidents have exercised.

America Rising Squared released a video montage Wednesday of various Supreme Court nominees over the last 25 years following the Ginsburg Rule, named for former President Bill Clinton's high court nominee Ruth Bader Ginsburg, who refused to answer questions about how she would rule on hypothetical cases that might come before the Supreme Court.

The video begins with a clip of Ginsburg's 1993 confirmation hearing, where she said commenting on a hypothetical case would "display disdain for the entire judicial process."

"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," Ginsburg said.

The video then shows former Vice President Joe Biden, then a senator from Delaware who chaired the Senate Judiciary Committee, advising Ginsburg that she shouldn't answer questions about what her view would be in future cases.

"But I do think that it's appropriate to point out that, judge, you not only have a right to choose what you'll answer and not answer. But in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 different forms probably over your tenure on the court," Biden said.

Supreme Court Justice Stephen Breyer, who was also appointed by Clinton, told Biden during his 1994 confirmation hearing that he did not want to "predict or commit" himself  "on an open issue that I feel is going to come up."

Chief Justice John Roberts echoed the same sentiment during his 2005 confirmation hearing, quoting Ginsburg's words in response to a hypothetical question on an issue.

"I think it's vitally important that nominees, to use Justice Ginsburg's words, ‘no hints, no forecasts, no previews," Roberts said. "They go on the Court not as a delegate from this committee with certain commitments laid out and how they're going to approach cases, they go on the Court as justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented, and the rule of law."

The video later shows former President Barack Obama's Supreme Court nominee Sonia Sotomayor refusing to answer a question, saying she couldn't "engage in a question that involves hypothesis."

"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," Elena Kagan, then another Obama Supreme Court nominee, said during a confirmation hearing.

The video then features a February 2017 clip of Senate Minority Leader Chuck Schumer (D., N.Y.) agreeing with this sentiment, a stance on the Ginsburg Rule he reversed on in July.

"There is a grand tradition, that I support, that you can’t ask a judge who was nominated or a potential judge who was nominated for a judgeship about a specific case that might come before them," he said.

Cameron Cawthorne

Cameron Cawthorne   Email Cameron | Full Bio | RSS
Cameron Cawthorne is a Media Analyst for the Washington Free Beacon. He graduated from the University of Virginia in 2013. Prior to joining Free Beacon, Cameron was a Legislative Assistant in the Virginia General Assembly and a War Room Analyst at America Rising.

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