Abandon the ‘Ginsburg Rule’ for Supreme Court Candidates

Supreme Court nominee Elena Kagan is scheduled to testify before the Senate Judiciary Committee soon. Because she lacks a judicial record, pundits demand that senators fully question Kagan about her stance on key issues. Undoubtedly, Kagan will invoke the “Ginsburg Rule” when peppered with tough questions.

Named for then-Judge Ruth Bader Ginsburg, the rule emerged from her 1993 confirmation hearings. With the support of then-Sen. Joe Biden, Ginsburg refused to answer questions that probed how she would rule on particular issues. As she declined to answer more than 30 questions, “no hints, no forecasts, no previews” became Ginsburg’s mantra.

The Ginsburg Rule is closely tied to judicial independence. The argument runs something like this: It is unseemly for a person nominated to be a neutral arbiter to condition his or her appointment on a promise to rule a certain way. While elected policymakers should declare their views and predilections before asking the people to cast a ballot, judges are in a different category. Thus, the senators should never ask a nominee to divulge his or her views of matters that could be heard by the court.

Before the judicial activism of the past half century, this might have passed the smell test. Today, the Supreme Court makes the ultimate decision on diverse matters such as affirmative action in awarding contracts or in school admissions, restrictions on abortion, the medicinal use of marijuana and capital punishment. The court has no claim to being an independent tribunal above the fray of politics and policymaking.

For example, was there any neutrality or detachment in the court’s most recent death penalty case, Kennedy v. Louisiana in 2008? At issue was whether capital punishment is permissible if a child is raped but does not die from her injuries. The text of the Constitution permits use of the death penalty, and Louisiana reasoned that the rape of a child should be a death-eligible offense.

In striking the law, the justices took into account the sum total of their personal opinions and policy preferences, which “lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child” absent loss of life. The court was not impressed that reasonable legislators might conclude that deterrence, punishment and other factors permit, but do not require, capital punishment for such a horrific crime. The court simply wrote its own view into law.

Considering that the modern court has abandoned all notions of judicial restraint, the Senate has a right to demand that Kagan (or any other nominee) answer questions about particular issues. For instance, “Do you agree with a majority of the court that the death penalty can never be inflicted for the rape of a child unless the child is killed during the encounter? Why or why not?”

The Supreme Court is no longer a neutral umpire ensuring that both sides are governed by the same predetermined rules. To use a baseball metaphor, the justices have given up calling balls and strikes, and instead tinker with starting lineups, pitching changes, and decisions to hit and run.

Because the senators are representatives of the people, they have a duty to ask probing questions. And as a prospective participant in the policymaking game, Kagan should candidly answer all questions put to her. “No hints, no forecasts, no previews” was outdated in 1993 and is more so today.