Refrain From Pushing for Commitments

Don’t blame Brett Kavanaugh when he demurs at his confirmation hearing from answering questions on legal issues that might come before the Supreme Court. It’s the senators who will be in the wrong, for demanding commitments that no judicious nominee could provide. To answer “direct questions on stare decisis on many other matters, including Roe and health care” — as Minority Leader Chuck Schumer has called for –would itself be disqualifying.

That principle has come to be called the Ginsburg Standard, after Justice Ruth Bader Ginsburg. As she explained in the opening statement of her 1993 confirmation hearing: “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.” Or, as she later responded to a question about constitutional protections against discrimination based on sexual orientation: “No hints, no forecasts, no previews.”

It would be a mistake to associate the rule too closely with Justice Ginsburg, who honored it inconsistently at her hearing, or to view it as driven only by policy considerations. In fact, the standard has deep roots in the law and history.

Judges are appointed to exercise the “judicial power.” As per the Constitution, this involves deciding specific “cases” or “controversies” — that is, concrete disputes involving real facts, as opposed to abstract questions of law. Judging, in turn, entails the application of law to the facts of a particular case. The facts matter greatly: The way in which the circumstances of a given case can be distinguished from one in the past or one in the future is often what creates the basis for a legal rule, because it is that distinction that becomes legally material.

Judges don’t decide cases in a vacuum or through divine inspiration. They do it in the crucible of adversarial testing. Appellate judges read the parties’ briefs. They hear the lawyers’ arguments. They review the precedents and the factual record. Then they piece it all together, rendering a decision that, in Justice Ginsburg’s formulation, “should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present.” Opining on a legal question divorced from the context of a particular case is not judging at all. It is speculation.

In that sense, a senatorial demand that a nominee take one side or the other on a given “issue” is futile. Who is to say which of any number of possible factual circumstances might be relevant when, because there is no case, there are no facts? How can anyone judge the correctness of an argument when, because there are no parties, no one has argued for or against it?

This week senators would do well to stick to more illuminating lines of inquiry: the more than 300 written opinions Judge Kavanaugh issued over his 12 years on the bench, his speeches and articles, his judicial philosophy, his character. There is no legitimate reason to demand hints, forecasts and previews that Judge Kavanaugh is duty-bound to deny.