The Ginsburg Standard

Judge Kavanaugh Reiterates ‘No Hints, No Forecasts, No Previews’ And No Hypotheticals
JUDGE BRETT KAVANAUGH: “[A]ll the nominees currently sitting on the Supreme Court, all the justices, conduct hold made clear a twosome things. First of all, they can’t hash out cases or issues that powerfulness come upwards earlier them. As Justice Ginsburg said, ‘no hints, no forecasts, no previews.’ That also agency amongst abide by to at to the lowest degree the vast torso of Supreme Court precedent going back, you lot can’t plough over a thumbs upwards or thumbs downward on the case. That’s Justice Kagan’s formulation. She said repeatedly, no thumbs upwards or thumbs downward when she was asked, what create you lot hollo upwards most this case, what create you lot hollo upwards most that case? … That nominee precedent, every bit I telephone telephone it, is now, inward my view, business office of the independence of the judiciary. And that nominee precedent is something I demand to adhere to, when I am hither every bit a nominee now.” (U.S. Senate Judiciary Committee Hearing, 9/05/2018)

Senate Democrats Have Previously Acknowledged The Importance Of The Ginsburg Standard
SEN. CHUCK SCHUMER (D-NY): “There is a grand tradition that I back upwards that you lot can’t inquire a approximate who’s nominated for a -- or a potential approximate who is nominated -- for a judgeship most a specific illustration that powerfulness come upwards earlier them.” (Sen. Schumer, Press Conference, 2/7/2017)

SEN. PAT LEAHY (D-VT), Former Judiciary Committee Chairman: “I sure don’t desire you lot to conduct hold to lay out a attempt out hither inward the abstract which powerfulness determine what your vote or your attempt out would hold upwards inward a illustration you lot conduct hold however to come across that may good come upwards earlier the Supreme Court.” (U.S. Senate Judiciary Committee, Hearing, 7/21/1993)

Sitting Supreme Court Justices Have Reaffirmed The Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’
THEN-JUDGE RUTH BADER GINSBURG: “You are good aware that I came to this proceeding to hold upwards judged every bit a judge, non every bit an advocate. Because I am together with promise to perish along to hold upwards a judge, it would hold upwards incorrect for me to say or preview inward this legislative sleeping accommodation how I would cast my vote on questions the Supreme Court may hold upwards called upon to decide. Were I to rehearse hither what I would say together with how I would argue on such questions, I would deed injudiciously. Judges inward our organization are outpouring to determine concrete cases, non abstract issues; each illustration is based on detail facts together with its determination should plough on those facts together with the governing law, stated together with explained inward lite of the detail arguments the parties or their representatives conduct to present. A approximate sworn to determine impartially tin offering no forecasts, no hints, for that would demo non solely disregard for the specifics of the detail case, it would display disdain for the entire judicial process.” (U.S. Senate Judiciary Committee, Hearing, 7/20/1993)

• JUDGE RUTH BADER GINSBURG: “I cannot address that inquiry without violating what I said had to hold upwards my dominion most no hints, no forecasts, no previews.” (U.S. Senate Judiciary Committee, Hearing, Pg.323, 7/20/1993)

THEN-JUDGE STEPHEN BREYER: “Let us imagine, if I am lucky together with if you lot discovery me qualified together with vote to confirm me, I volition hold upwards a fellow member of the Supreme Court, and, every bit a fellow member of that Court, I volition visit amongst an opened upwards heed the cases that arise inward that Court. And there is cipher to a greater extent than of import to a approximate than to conduct hold an opened upwards heed together with to hear carefully to the arguments... I volition elbow grease real difficult to plough over you lot an impression, an understanding of how I hollo upwards most legal problems of all dissimilar kinds. At the same time, I create non desire to predict or commit myself on an opened upwards trial that I experience is going to come upwards up inward the Court.” (U.S. Senate Judiciary Committee, Hearing, 7/12/1994)

THEN-JUDGE JOHN ROBERTS: “It’s a affair of slap-up importance non solely to potential Justices but to judges. We’re sensitive to the demand to maintain the independence together with integrity of the court. I hollo upwards it’s vitally of import that nominees, to role Justice Ginsburg’s words, ‘no hints, no forecasts, no previews.’ They instruct on the Court non every bit a delegate from this commission amongst sure commitments position out together with how they’re going to approach cases, they instruct on the Court every bit Justices who volition approach cases amongst an opened upwards heed together with determine those cases inward lite of the arguments presented, the tape presented together with the dominion of law. And the litigants earlier them conduct hold a correct to await that together with to conduct hold the appearance of that every bit well. That has been the approach that all of the Justices conduct hold taken.” (U.S. Senate Judiciary Committee, Hearing, 9/13/2005)

• ABC’S TERRY MORAN: “…this week, inward an extraordinary statement, Justice Ruth Bader Ginsburg, a Democrat nominated yesteryear President Clinton, took Roberts’s side.” JUSTICE RUTH BADER GINSBURG: “Judge Roberts was unquestionably right.” (ABC’s “World News Tonight,” 9/29/2005) SEN. DIANNE FEINSTEIN (D-CA): “My inquiry to the main justice together with forthwith to you lot is: create you lot concord amongst the direction the Supreme Court has moved inward to a greater extent than narrowly, interpreting congressional ascendence to enact laws nether the Commerce Clause? Generally, non relating to whatever ane case.” THEN-JUDGE SONIA SOTOMAYOR: “No, I know. But the inquiry assumes a prejudgment yesteryear me of what’s an appropriate approach or non inward a novel illustration that may come upwards earlier me every bit a Second Circuit approximate or, again, if I’m fortunate plenty to hold upwards a justice on the Supreme Court. So it’s non a illustration I tin respond inward a wide statement.” (U.S. Senate Judiciary Committee, Hearing, 7/14/2009)

Q: “Was Roe v. Wade, 410 U.S. 113 (1973), an illustration of the Supreme Court properly reinterpreting the Constitution inward lite of its timeless principles?” … ELENA KAGAN RESPONSE: “I create non believe it would hold upwards appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled constabulary entitled to precedential weight.  The application of Roe to futurity cases, together with fifty-fifty its continued validity, are issues probable to come upwards earlier the Court inward the future.” (Senate Judiciary Committee, Kagan: Response To Questions For The Record, 2010)

• KAGAN: “…inappropriate for a nominee to e'er plough over whatever indication of how she would dominion inward a illustration that would come upwards earlier the Court.  And I think, too, it would hold upwards inappropriate to create then inward a somewhat veiled mode yesteryear essentially grading yesteryear cases.” (U.S. Senate Judiciary Committee, Hearing, Pg.80, 6/28-30 &7/1/2010)

THEN-JUDGE NEIL GORSUCH: “[A]gain, if I dot my understanding or disagreement amongst a yesteryear precedent of the U.S. Supreme Court, I am doing 2 things that worry me sitting here. The start thing I am doing is I am signaling to futurity litigants that I cannot hold upwards a fair approximate inward their illustration because those issues maintain coming up. All of these issues, every bit you lot dot out, maintain coming up. Issues to a greater extent than or less all of these precedents volition hold upwards continued to hold upwards litigated together with are hotly litigated…. I am concerned that I conduct hold to facial expression the litigant inward the optic inward the adjacent case. And if I prejudge that case, they tin facial expression at me together with say you lot are non a fair judge, together with I conduct hold no respond for that.” (U.S. Senate Judiciary Committee Hearing, p. 85, 3/21/2017)

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