The Senate Judiciary Democrats Hypocritical Charade in Questioning Supreme Court Nominee Judge Amy Coney Barrett

Sadly last week, we saw an orchestrated questioning by the Senate Judiciary Committee’s Democrat members to cause President Trump’s nominee for the U.S. Supreme Court – Circuit Court Judge Amy Coney Barrett – to “violate” what has been called the “Ginsburg Standard” by opining on matters of public policy, prior Supreme Court decisions, and the application of law on hypothetical scenarios.  This was their effort at the “gotcha” game attempt to create more policy and political controversy around her fitness to ascend to the Supreme Court and thereby demonstrate evidence of policy bias that would color her application of the Constitution and law in cases.

So, what is the “Ginsburg Standard?” It has been summarized by former Senate Judiciary Committee Chairman Grassley (R-IA) as a rule for judiciary candidates that they should offer “No Hints, No Forecasts, No Previews…And No Special Obligations” because judges are bound [by their oath of office] to decide concrete cases, not abstract issues.” (July13, 2018)

During her confirmation hearings in 1993, the late Justice Ruth Bader Ginsburg, stated in effectively establishing the “Ginsburg Standard:”

“You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. 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.” (U.S. Senate Judiciary Committee, Hearing, 7/20/1993)

Nevertheless, the Senate Democrats sought to impose ideological and policy litmus tests on President Trump’s nominee, even in the face of their own recent history. As Senate Democrat Leader Chuck Schumer said in a 2017 press conference, “There is a grand tradition that I support that you can’t ask a judge who’s nominated for a — or a potential judge who is nominated — for a judgeship about a specific case that might come before them.” (Sen. Schumer, Press Conference, 2/7/2017)

Desperate to find any reason to oppose Judge Barrett, Senate Democrats were clearly trying to trick her into not following the Ginsburg standard and to comment on policy issues, unsettled cases and precedents, and even an article on Medicare that she had never even heard of.  As one of several examples from the hearings and not to be tricked, Judge Barrett followed the Ginsburg standard long respected by Democrats and had no knowledge of an article being asked about by Sen. Feinstein.

SEN. FEINSTEIN: “In talking about Medicare and Social Security, professor Mike Rappaport of the University of San Diego law wrote this: ‘It is worth remembering that these programs would never have taken their pernicious form if the Constitution’s original meaning had been followed in the first place.’ Do you agree with originalists who say that the Medicare program is unconstitutional, and if so, why?”

JUDGE BARRETT: “I’m not familiar with that article … I think I can’t answer that question in the abstract, you know, because as we’ve talked about the ‘no hints, no forecast, no previews’ rule. I also don’t know what the arguments would be. … But if I did consider it, it would be in the context of an actual case or controversy.”

In sum, the “Ginsburg Standard” is a well-established and accepted standard that a judiciary nominee should not answer questions on policies nor opine about pending cases, nor comment upon the Court’s rulings in other cases for which holdings are not absolutely settled law.  Sadly and wrongly, the Senate Judiciary Committee Democrats ignored this jurisprudential axiom articulated by the late Justice Ginsburg by demanding that her successor – Judge Barrett — be of the same philosophical bent. In short, this effort belies the hypocrisy of what the D’s have been doing during the entirety of the Judiciary Committee hearings – arguing for a liberal-conservative- swing vote ideological quota system on the Supreme Court.  Indeed, arguing for a liberal justice is prima facie evidence of their duplicity.  They object to Judge Amy because she is an originalist, so they want “one of their own” on the court.  Beneath their rhetoric, we have witnessed a classic hypocritical attempt to politicize the Supreme Court – indeed, an effort to rewrite the constitutional purpose of our judicial system and switch it to one of allied political jurists.