Don’t blame Brett Kavanaugh when he demurs at his confirmation hearing from answering questions on legal issues that might come before the Supreme Court. It’s the senators who will be in the wrong, for demanding commitments that no judicious nominee could provide. To answer “direct questions on stare decisis on many other matters, including Roe and health care”—as Minority Leader Chuck Schumer has called for—would itself be disqualifying.
That principle has come to be called the Ginsburg Standard, after Justice Ruth Bader Ginsburg. As she explained in the opening statement of her 1993 confirmation hearing: “A judge sworn to decide impartially can offer no forecasts, 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.” Or, as she later responded to a question about constitutional protections against discrimination based on sexual orientation: “No hints, no forecasts, no previews.”
It would be a mistake to associate the rule too closely with Justice Ginsburg, who honored it inconsistently at her hearing, or to view it as driven only by policy considerations. In fact, the standard has deep roots in the law and history.
Begin with the Constitution. The Appointments Clause provides that judges, including Supreme Court justices, are appointed by the president “with the Advice and Consent of the Senate.” From the nomination of John Jay as the first chief justice in 1789 through the mid-1950s, public confirmation hearings were rare. Few nominees attended them when they did occur, and only a handful testified. Senators had no occasion to grandstand by demanding that a nominee declare his stance on legal controversies.