In 1993 and 1994, when Justices Ruth Bader Ginsburg and Stephen Breyer went through their respective Supreme Court nominations– and confirmations, each refused to answer questions on controversial issues. Both were confirmed, nonetheless, by near-unanimous margins.
Let’s examine Ginsburg’s confirmation process, specifically.
The Federalist Society notes several precedents that the Ginsburg confirmation set (.pdf):
A. Questions must address specific real-world facts and specific issues, rather than hypotheticals or broad questions of policy or belief;
B. Nominees cannot be expected to give detailed, expert answers to questions involving every legal subject, as no person is an expert in everything;
C. Nominees (particularly sitting judges) can decline to answer by citing their experience in deciding cases based on the legal research and argument set forth in briefs, rather than answering general, non-case-specific questions;
D. Nominees can refuse to answer questions relating to specific cases or controversies likely to come before them as Justices of the Supreme Court
E. Nominees can give generalized answers to questions that involve judicial management or that address issues impacting the entire judiciary;
F. Nominees can decline to answer questions (or give general answers) in areas of the law that are evolving or otherwise in flux;
G. Nominees can decline to discuss their personal feelings or reactions to issues or decisions.
If and when President Bush’s nominee declines to answer a question, you can just bet that the groups with so much inertia (money, activist lists, etc.) behind them to oppose the nominee will scream and wail and gnash.
While these precedents can and should be applied to the Senate deliberations, they are not going to convince the increasingly far-left Senate Democrats to suddenly “play fair.” More importantly, demanding the game be played by 1993 rules is not going to work in the court of public opinion.
The Federalist Society notes (.pdf):
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. In light of this precedent, the Senate and current judicial nominees should carefully apply those same reasons for caution (discussed above) to establish a common understanding of the rules for a confirmation hearing. This understanding will help in avoiding much of the delay and conflict that has become part of the confirmation process.
Gee willikers, gosh almighty, playing by the rules is fun!
While the Federalist Society’s heart is certainly in the right place, their assertion that we can all just reach a wonderful agreement to follow the precedents established during the Ginsburg nomination process is hopelessly naive. Expecting today’s liberal Democrats to abide by the rules of decorum established more than a decade ago is a recipe for complete disaster. It’s just not going to happen. Thus, even as our nominee himself or herself takes the high road, we must get down in the trenches and be prepared to knock some heads together if necessary.
Patrick Ruffini explains that those of us favoring a restrained judicial philosophy need to eschew the antiquated deference to processes and legal jargon so widely advanced in the past and instead emphasize, in terms Americans can understand, exactly what is on the line here:
If the Democrats want an ideological war over this Supreme Court nominee, bring it on. It’s a war we can win.
As they say, go read the entire thing.
Somehow, I tend to believe that the White House’s rhetoric about “both sides” needing to “tone it down” is a necessary part of the issue priming process, not a serious attempt to scold his allies on the right. Bush simply wants to remain dignified and allow the left to fire the first predictable shots. I also get the distinct feeling that the White House is well-prepared for the bloody fight that Senator Schumer has all but guaranteed.
Will Franklin tones it down on both sides at WILLisms.com.