The Washington Post Reports that the Roberts' confirmation hearings have become less about Roberts and much more about the yet to be announced nominee to replace Justice O'Connor:
The confirmation hearings are now only partly about Roberts and what he thinks about the law. Instead, they have become a prelude to the coming battle over President Bush's as-yet-unnamed successor to Justice Sandra Day O'Connor and a forum with broader political implications for a debate about deep philosophical differences between Republicans and Democrats over the role of government and the courts in American society.
Judge Roberts' confirmation has appeared inevitable for weeks. Polls find Americans support Roberts' confirmation by a two to one margin. Reported head counts indicate the Senate will confirm Judge Roberts.
Even as the Post says the battlefield shrinks, the upcoming battle over Justice O'Connor's replacement may well be won or lost in the public relations battle about which questions Judge Roberts chooses not to answer.
In yesterday's three and one half hour hearing, Senators Hatch, Grassley, Kyl, Graham, Schumer and Cornyn managed to invoke Justice Ginsburg's name 24 times as committee sparred about "Ginsburg standard."
Senators Hatch and Schumer debated whether it was reality or a myth that Justice Ginsberg refused to answer questions that would require her to discuss how she would rule on specific issues:
HATCH: In 1993, President Clinton's Supreme Court nominee, Judge Ruth Bader Ginsburg, explained better than I can why nominees cannot answer such questions no matter how they're framed.
She said, quote, A judge sworn to decide impartially can offer no forecast, 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, unquote.
[. . .]
Recently, one of our colleagues on this committee dismissed as a myth the idea that Justice Ginsburg refused to discuss things related to how she would rule.
Anyone watching C-SPAN's recent replays of Justice Ginsburg's hearing knows that this is not a myth; it is a reality.
I was on this committee in 1993. Justice Ginsburg was not telling mythological tales when she refused nearly 60 times to answer questions, including mine, that she believed would violate what she said was her rule of, quote, no hints, no forecasts, no previews, unquote. Those were her words, not mine.
Justice Ginsburg did what every Supreme Court nominee has done: She drew the line she believed was necessary to protect her impartiality and independence.
Finally, the third fact that should guide us is that the Senate traditionally has respected the nominee's judgment about where to draw the line.
In response to some of my questions, Justice Ginsburg said, quote, I must draw the line at that point and hope you will respect what I have tried to tell you, unquote.
Did I wish she had drawn the line differently? Of course. But I respected her decision.
This is the historical standard.
SCHUMER: Some have argued that questioning a nominee about his or her personal views of the Constitution or about decided cases indicates prejudgment about a future case.
It does nothing of the sort.
Most nominees who have come before us, including Justice Ginsburg, whose precedents you often cite, have answered such questions.
Contrary to popular mythology, when she was a nominee, Justice Ginsburg gave lengthy answers to scores of questions about constitutional law and decided cases, including individual autonomy, the First Amendment, criminal law, choice, discrimination and gender equality.
Although there were places she said she did not want to answer, she spoke about dozens of Supreme Court cases and often gave her unvarnished impressions, suggesting that some were problematic in their reasoning while others were eloquent in their vindication of important constitutional principles.
The quotes are from the transcript made available by the New York Times.
According to the Washington Times the committee's Democrats circulated a press release titled: "Correcting the Record: Justice Ginsburg's Answered Questions During Her Supreme Court Nomination Hearing," which claimed:
Any assertion that then-Judge Ginsburg did not answer substantive questions at her Supreme Court nominations hearing is false. The only questions Justice Ginsburg refused to answer were questions about how she would rule on specific fact situations or issues in potential upcoming cases.
Senator Schumer is wrong. In "Precedent from the Confirmation Hearings of Ruth Bader Ginsburg for the Conduct of Judicial Nominees," Jay T. Jorgensen concludes:
Justice Ginsburg’s hearings demonstrate that there are many valid reasons why a judicial nominee may decline to answer the questions posed by individual senators. Justice Ginsburg declined to answer, or gave only generalized answers, to a vast number of the questions she was asked during her confirmation hearings. Despite this, Justice Ginsburg was confirmed by a vote of 96-3, which suggests that the Senate recognized her reasons for caution as valid and appropriate.
I accept Senator Hatch's view of the "Ginsberg Standard" over Senator Schumer's myth. After all, Hatch was on the committee when it held confirmation hearings on Justice Ginsburg, Schumer was not.
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