As the Senate begins hearings on the nomination of Judge Amy Coney Barrett to the United States Supreme Court, Democrats are hoping they can get Barrett to express an opinion on health care, particularly her view of Affordable Care Act, birth control and abortion. Barrett’s personal or political views on these matters are, of course, irrelevant. But don’t expect Barrett to indicate how she might vote in a particular case on these matters either. To do so, would violate judicial ethics.
The confirmation hearings are an opportunity for a nominee to reveal her qualifications, temperament, and judicial philosophy—that is, her approach to deciding cases. But the hearings reveal a constitutional tension between the confirmation process and the judicial role. Article I vests the president with the responsibility of nominating Supreme Court justices, and Article II gives to the Senate the right to provide “advice and consent” on those nominees. The nomination and confirmation of a Supreme Court justice are, thus, inherently political processes.
The role of a judge, however, is distinctly apolitical. The Constitution grants federal judges life-tenure in order to guarantee their impartiality and independence and to insulate them from political pressures. And Canon 5 of the Model Code of Judicial Conduct bars judicial candidates from commenting on potential cases, controversies, or issues likely to come before them. Canon 5 also forbids potential judges from making any “pledges, promises or commitments” that would be inconsistent with judicial impartiality. Canon 5 applies to “candidates” for judicial office–thus, a judge’s prior record is different from making a pledge during confirmation proceedings.
The practice of refusing to comment on issues that might come before the court during confirmation hearings has a long history. In his opening statement at Justice Ruth Bader Ginsburg’s confirmation hearing, then-Senate Judiciary Chairman Joe Biden laid down a marker, noting that a nominee must not comment about “any specific case that may come before her.” In her own opening statement, Ginsburg further explained that it would be injudicious of her “to say or preview … how I would cast my vote on questions the Supreme Court may be called upon to decide.” A nominee, Ginsburg noted, can offer “no hints, no forecasts, no previews” as to how she might rule in a particular case.
Despite pressure from senators on both sides of the aisle, Ginsburg held firm. In response to a question concerning sexual orientation, a topic on which she had an extensive record, she explained that she could not answer without “violating what [she] had said to be [her] rule about no hints, no forecasts, no previews.” Similarly, since “aid to schools is a question that comes up again and again to the Supreme Court,” Ginsburg declined to comment on the constitutionality of school vouchers. And she refused to comment on the Second Amendment because of “much debate about” the issue. Overall, Ginsburg declined to answer approximately 30 such questions.
Subsequent nominees have followed Ginsburg’s lead. Justice Elena Kagan refused to answer a question about how Roe v. Wade might apply to future cases. And she refused to “grade” past Supreme Court rulings because a nominee must not “give any indication of how she would rule in a case that would come before the Court.”
At his confirmation hearing, Justice John Roberts also stuck to “the Ginsburg Rule,” explaining its vital importance to maintaining the independence of the court. Ginsburg “took Roberts’s side,” agreeing that “Judge Roberts was unquestionably right” to refuse to answer questions that might come before the court.
So, some may wonder, what is the point of confirmation hearings today? Does the Ginsburg Rule render them meaningless? In a word, no. The American people are entitled to know how a nominee views judging. Is she someone who believes that the words of a statute matter? Does she think the Constitution should be interpreted according to its original meaning or that, as a judge, she is empowered to update the document? These questions regarding a nominee’s judicial philosophy are fair game and key to understanding her view of the judicial role.
We shouldn’t demand that Barrett answer questions regarding abortion, birth control, the Affordable Care Act or any other issue likely to come before the court. But we should listen carefully when she describes her judicial philosophy. Her answers will indicate whether she is likely to respect the decisions of the elected branches and adhere to the law as written.