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Ruth Bader Ginsburg On Trial in New Neil Gorsuch Ad

Posted on
March 20, 2017
by Andrew Cullen
Neil Gorsuch begins his first round of confirmation hearings today on Capitol Hill. And as Democratic Senators scoff, and Republican Senators swoon over Gorsuch’s resume, it’s another Supreme Court nominee that is being put on trial in this new political ad: Justice Ruth Bader Ginsburg.

In 1993, during Justice Ginsburg’s confirmation hearings, she was asked more than 30 times how she would rule on theoretical cases. In each of those 30 times, she refused to answer the hypothetical. The whole scene eventually coined the term “The Ginsburg Rule.” Of course “The Ginsburg Rule” is not a legal term, but it has become the oft-repeated mantra of judges under the Senate’s confirmation spotlight – “No hints, no forecasts, no previews.”

Just in case Gorsuch decided to adopt the same mantra in his confirmation hearings, the Judicial Crisis Network got out ahead of any inevitable Democratic backlash with an ad titled “The Ginsburg Rule.” The ad makes the case that the standard set out by Ginsburg in her 1993 confirmation hearing is now just a double standard adopted by Democrats.

The Ginsburg Rule: Partisan Dodging, or Judicial Prudence?

“Democrats are attacking Supreme Court nominee Neil Gorsuch because he won’t promise to support their political agenda,” an ominous narrator says over embarrassing pictures of Senators Chuck Schumer, Elizabeth Warren and others. “But when a nominee from a Democrat was before the Senate?”

The music changes instantly from a foreboding deep tone to a lullaby-like tea party jingle, and we see various clips of Ginsburg declining to answer hypothetical questions on how she would rule on specific issues.

“Democrats even encouraged avoiding questions,” the narrator adds, as we see none other than then Senator Joe Biden tell Ginsburg, “You not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of how your view will be.” Ironically, this isn’t the first time that Joe Biden has been dragged into the current Supreme Court fight.

“So when the Democrats complain,” the narrator continues, before switching back to one more clip of Ginsburg who says, “I do not feel equipped to address that subject.”

In Her Own Words: ‘No forecasts, no hints’

It should be pointed out, that this so-called “Ginsburg Rule,” actually has a legitimate basis in judicial thinking. The idea is that a judge up for federal nomination should not weigh in on hypothetical cases because it would be difficult – or impossible – for a judge to be seen as a neutral arbiter if they were already perceived to have promised to vote a certain way on a given issue.

Ginsburg explained her thinking this way in 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.”

By the end of the week we will find out if Neil Gorsuch agrees.
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