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The Reality Of The 'Ginsburg Rule'


There is a phrase that you may be hearing a lot over the next few months.


JOHN CORNYN: And this has come to be known as the Ginsburg standard.

CHARLES GRASSLEY: For the last 25 or 26 years, the Ginsburg rule has been what's followed by other people coming before the Supreme Court...

ORRIN HATCH: No hints, no forecasts, no previews.

GREENE: Those were Republican Senators John Cornyn, Charles Grassley and Orrin Hatch talking about the so-called Ginsburg rule. It's a constant refrain in anticipation of confirmation hearings on the Supreme Court nomination of Brett Kavanaugh. The idea is that liberal Justice Ruth Bader Ginsburg, at her confirmation hearing, established a precedent for refusing to answer questions about issues before the Supreme Court. But that, it turns out, is not true, as NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: It is true that Ginsburg in her opening statement before the Senate Judiciary Committee said, as others had before her, that it would be improper for her to give any hints of how she might rule in future cases. Notwithstanding that, she did answer questions, as others have, about what she considered settled law and about her previous writings as a judge and legal scholar. That included her view that the Constitution includes a right of privacy or, as she put it, the right to determine one's own life decisions.


RUTH BADER GINSBURG: The right to marry, the right to procreate or not, the right to raise one's children - the degree of justification that the state has to have to interfere with that is very considerable.

TOTENBERG: Asked whether the decision to terminate a pregnancy is a fundamental right for women under the Constitution, she didn't duck. She noted that in both the Supreme Court's major abortion decisions in 1973 and 1992, the year before the hearing, the question was - who decides?


BADER GINSBURG: In Roe, that answer comes out the individual in consultation with her physician. There is a somewhat of a big brother figure next to the woman. I think that the most recent decision, whatever else might be said about it, says the woman decides.

TOTENBERG: By the time she'd finished testifying she'd also answered questions about affirmative action, gender discrimination, single-sex education, the limits of congressional powers, even Indian treaties and government funding for the arts.


BADER GINSBURG: I don't think the First Amendment says that the government can't choose Shakespeare over David Mamet, for example, in deciding what programs it wants to support.

TOTENBERG: Indeed, a recent study shows that Ginsburg was among the most responsive nominees ever to appear before the Senate Judiciary Committee. And conversely, Neil Gorsuch, President Trump's first nominee, was the least responsive nominee in 50 years, as in this exchange over the Supreme Court's 1954 decision declaring segregation in public schools unconstitutional.


RICHARD BLUMENTHAL: Do you agree with the result?

NEIL GORSUCH: Brown v. Board of Education, Senator, was a correct application of the law of precedent.

TOTENBERG: That answer is a total waffle, says University of Georgia Law professor Lori Ringhand, co-author of the study, because the Supreme Court can always overturn precedent. The Gorsuch strategy, Ringhand said, was to avoid having to decide which questions to respond to and which ones to refuse.

LORI RINGHAND: I think he was trying to avoid the complicated line-drawing problem by just saying, I'm virtually not going to answer anything.

TOTENBERG: And that is particularly galling and problematic for some senators because, as Ringhand observes...

RINGHAND: What a nominee agrees to opine on and what he or she refuses to give an opinion on does tell us something about what they think is in play as a matter of constitutional law.

TOTENBERG: In short, it's a signal of what decisions the nominee might be willing to reverse or restrict. And the line-drawing problem may have been more acute for Gorsuch because the list of Supreme Court precedents he's willing to reconsider may have been larger than he wanted senators to know. For Ginsburg, given how much she'd written about abortion, it would have been very hard not to answer questions on that subject. And Ringhand observes, there will be similar issues that Kavanaugh will likely have to address.

RINGHAND: I suspect that Judge Kavanaugh, with his paper trail, will actually give us quite a few firm responses on noncontroversial issues that he's written about.

TOTENBERG: And perhaps even some controversial ones, including his one opinion about abortion and his many legal opinions and other writings about, among other things, presidential power, national security and potential presidential immunity from criminal investigation.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF MADE IN M AND SMUV'S "GOA") Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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