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The Ginsburg Precedent

Location: Washington, DC

The Ginsburg Precedent
By Congressman Joe Pitts

September 1, 2005

In 1993, President Clinton named Ruth Bader Ginsburg to replace Justice Byron R. White on the Supreme Court.

It was agreed and widely accepted at that time that the President was entitled to a nominee of his choice. He was not bound to choose someone with the same legal temperament as Justice White. He did not.

Justice White had dissented in Roe v. Wade. Yet President Clinton replaced Justice White with Ms. Ginsburg, who had written that women not only have a constitutional right to abortion, but that if the government helps poor women pay for prenatal care and childbirth expenses, it must also use taxpayer dollars to fund abortions.

Justice Ginsburg had discernible liberal views. These views were far outside the mainstream of political and legal thought. Yet she was confirmed overwhelmingly after just 4 days of hearings. This was not a Republican endorsement of her views or writings; it was an endorsement of the Constitutionally-mandated confirmation process.

During the hearings on her nomination, the Senate Judiciary Committee Chairman Joe Biden, a Democrat from Delaware, stated the following: "I do think it's a appropriate to point out that, Judge, you -- I -- 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 what your view will be on an issue that clearly is going to come before the Court in 50 different forms, probably, over the next -- over your tenure on the Court."

In fact, then-Judge Ginsburg had written extensively on a number of hot-button social issues. But she was not required to answer Senators' questions on issues like abortion, civil rights laws, gay rights, gun-owners rights, rights of the disabled, school vouchers, separation of church and state, free speech, or rights of Indian tribes.

Republicans at the time "praised her confirmation as a model for future nominations, and she cleared the hearings without being forced to pick sides on abortion, gay rights, gun control and other controversial issues," according to the Dallas Morning News.

The practice of not pigeon-holing a nominee's political views was not new.

According to an Associated Press account of her 1981 confirmation hearing, Sandra Day O'Connor, nominated by President Reagan to be the first female Supreme Court Justice, "was repeatedly pressed by Sen. John East, R-N.C., one of the most conservative members of the 18-member judiciary panel and a leading abortion foe, to spell out her constitutional view of the 1973 high court decision legalizing most abortions. She firmly rebuffed his efforts, declaring in a steady voice, 'I feel it is improper for me to endorse or criticize that decision which seems likely to come back before the Court.' Similarly, Mrs. O'Connor declined to give her specific views on a number of touchy subjects likely to be heard by the court."

This tradition goes back as far as 1864. When he nominated Salmon P. Chase to the Court, President Lincoln stated, "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it."

We would despise him for it because we rely on judges to approach all cases before them impartially. Certainly, all judges approach the law with certain views and opinions. However, that does not preclude them from ruling impartially based on what the law says and the case at hand. Our legal system relies on it.

While a judge can certainly be asked to discuss ideas and perspectives on the law generally, politicians should not force a would-be Justice to pre-judge certain cases because of there political implications. Justices are appointed for life in order to separate them, to the extent that possible, from this kind of political litmus testing.

However, according to statements made by Democratic leaders recently, it appears this "Ginsburg Precedent," as it is now known, may come to an end.

Several Senators have made clear that they will press Judge John Roberts to state how he would rule on certain cases or issues, hinting that the hundred-plus year-old Ginsburg Precedent is no longer sufficient. One has gone so far as to threaten a filibuster if he does not answer their politically-charged questions, a threat never made during Justice Ginsburg's confirmation hearings. What a difference twelve years make.

The judicial process has been under attack over the last four years. Now it's time to make it right. Now it's time for Democrats to treat Judge Roberts with the same amount of deference and respect.

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