Judge Barrett’s Best Ally at Hearings Is Ruth Bader Ginsburg

(Bloomberg Opinion) -- Judge Amy Barrett has had a powerful ally during her confirmation hearings: Ruth Bader Ginsburg.

At Ginsburg’s own hearings in 1993, she said she would offer “no hints, no forecasts, no previews” about how she would vote in cases that might come before the Supreme Court. She refused to answer questions about her views on the constitutionality of school vouchers, among other topics, for this reason.

Ginsburg wasn’t the first nominee to take that view. A few years earlier, Antonin Scalia had said that he wouldn’t offer his thoughts even on Marbury v. Madison, the canonical Supreme Court case from 1803. Recent nominees in both parties have followed the same practice of not commenting on issues potentially relevant to future cases. When Republicans are trying to get one of their nominees confirmed, they find it convenient to call this norm “the Ginsburg standard.” And Republican nominees adhere to the standard more strictly than Ginsburg herself did.

So when Democratic senators asked Barrett whether she thinks the Constitution protects abortion, or same-sex marriage, or campaign spending, she had a ready response: She couldn’t give one. She didn’t want to pre-judge a case.

The practice Barrett is following serves an important value. We would not want Senate confirmation hearings to turn into efforts to extract promises from nominees to rule in particular ways without regard to the merits of cases. We wouldn’t want a justice who had pledged to senators that she would always vote for labor unions, or for anti-abortion groups, to make it to the court.

But “no hints and no previews” goes too far. As one commentator pointed out 30 years ago, “‘might come before the Supreme Court’ is an elastic standard that arguably encompasses all human activity.” The appointment and confirmation process can’t work as a check on the power of the federal courts if presidents and senators are blocked from finding out much about how a prospective justice expects to wield that power.

Nobody thinks that Justice Stephen Breyer or Justice Clarence Thomas is incapable of doing impartial justice in a gun case because each of them has expressed a decided view of the Second Amendment in previous opinions. A nominee should not be considered to have compromised judicial impartiality for expressing such views, either — so long, that is, as she makes it clear to the senators and the public that the facts of a future case might compel a different outcome, and that additional facts and arguments might change her mind.

Several Democratic senators tried to pin Barrett down on the challenge to the Affordable Care Act that is currently before the Supreme Court. She explained the legal issues in the case when they mischaracterized them. Contrary to the comments by Senators Richard Blumenthal and Chris Coon, those issues are different from the ones in previous cases concerning that law, and so her comments on those prior cases don’t tell us how she would vote in the current one. But she was right to refuse to tip her hand about how she would vote.

Dodging questions about whether Roe v. Wade was correctly decided is a different matter. Not answering is in keeping with bipartisan tradition for nominees, certainly, but the convention that such questions should not be answered is misguided. Senators are within their rights to try to change it.

Given the paucity of helpful answers that the senators could expect to elicit, it’s understandable that some of them went off on tangents. Rather than asking questions, Senator Sheldon Whitehouse spun a conspiracy theory out of conservatives’ political efforts to get conservatives on the bench. Senator Pat Leahy tried a procedural gotcha on Barrett, thinking — mistakenly — that she had come out against election-year confirmations back in 2016.

So far, Barrett’s Democratic opponents have done nothing to harm her chances of confirmation. That’s partly because they don’t have much of a case against her, and partly because they don’t have the votes to stop her. But it’s also because modern confirmation hearings have largely been designed to grease the skids for judicial nominees. In Judge Barrett’s case, they’re working as intended.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.

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