Grappling With 'the Ginsburg Rule'

When John Roberts (search) goes before the Senate Judiciary Committee for his confirmation hearings to the Supreme Court, he likely will be asked about his views on privacy, a woman's right to choose, religion and how he would interpret the Constitution — all questions he is not bound by the Constitution to answer.

Although Roberts is being hailed by many as what should be a near shoo-in for the high court, many Democrats plan to ask the candidate about his views as they weigh whether to give the thumbs-up to President Bush's nominee.

"I urged Judge Roberts, as far as he can legally within the canons of ethics, to be forthcoming and honest with his answers," Sen. Dick Durbin, D-Ill., said after meeting with Roberts on Friday. "If he is open and honest, I think it will go a long way."

The "canons of ethics" mentioned by Durbin include Canon 5 of the American Bar Association's Model Code of Judicial Conduct — informally called "the Ginsburg rule" by many Republicans.

Named after Supreme Court Justice Ruth Bader Ginsburg (search), who chose not to answer more than 30 questions during her confirmation hearings in 1993, it refers to how a judicial nominee can choose not to answer questions that may hint at how he or she would rule on a future case.

Canon 5 "prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views," according to the ABA's code.

Citing the canon, Ginsburg wouldn't answer questions about the constitutionality of school vouchers, whether the death penalty is constitutional or questions about sexual orientation, including whether adoption rights to homosexuals should be limited.

"I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews," she said in response to one question involving sexual orientation.

Ginsburg was confirmed by the Senate 93-3.

"The Ginsburg rule suggests that Republican senators with these legitimate concerns about Ginsburg's past record did not vote against her because she refused to talk about her views," said Todd Gaziano, director of The Heritage Foundation's Center for Legal and Judicial Studies.

"I think that is the appropriate response to senators as long as the nominee is talking about the constitutional provision in general and the role of the courts. I really do think senators have a genuine interest and responsibility in trying to gather through general conversation what the nominee views the proper role of a judge to be," Gaziano said.

Questioning 'the Spirit and Method' of Judging

Since Roberts was nominated last week, Republicans have been citing the Ginsburg rule and Sen. Joe Biden's remarks leading into her confirmation hearings when, as chairman of the Senate Judiciary Committee, the Democrat from Delaware said it's inappropriate to ask nominees how they will rule in a case.

Sen. Trent Lott, R-Miss., said that philosophy still applies today.

"There is no free pass and there shouldn't be. … Senators should be prepared to … ask questions, but I don't think he should necessarily answer all of them," Lott told FOX News. "You're already hearing talk of the Ginsburg rule where she refused to answer, I think, something like 36 questions on a variety of issues. Joe Biden … made it clear that she didn't have to and shouldn't, in fact, answer all of those questions."

Current Senate Judiciary Committee Chairman Arlen Specter, R-Pa., also said last week that a question whether Roberts would uphold Roe v. Wade, which legalized abortion, "crosses the line on asking a question as to how he would [rule] in a specific situation, which I think is beyond the pale. Senator Biden, as chairman, ruled on that fairly extensively in Justice Ginsburg's confirmation proceedings."

But Biden's office said that while it's improper to ask a judge how he or she would rule in a case, he's "likewise always maintained that it's fair game to examine the constitutional methodology and judicial philosophy which the nominee would bring to consideration of issues which come before the Supreme Court.

"The two positions are not inconsistent, but the GOP has tried to conflate them, in an attempt to argue that any questioning about a nominee's judicial philosophy or constitutional methodology is out of line. They're wrong," reads a statement released by Biden's office.

During his floor statement on July 15, 1993, Biden said, "In my view, the public is best served by questions that initiate a dialogue with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and method she will bring to the task of judging."

According to a list of questions Sen. Charles Schumer (search), D-N.Y., wants to ask the nominee — one numbered question reads: "Do you believe that Roe v. Wade (1973) was correctly decided? What is your view on the quality of the legal reasoning in the case? Do you believe that it reached the right result?"

Other issues Schumer plans on asking Roberts about include the First Amendment and Commerce Clause of the Constitution, under what circumstances it's appropriate for the Supreme Court to overturn "well-settled precedent" and Supreme Court cases Roberts considers the product of "judicial activism."

"Of course the big question they would want to ask that he won't answer is 'Would you like to overrule Roe v. Wade?' It would be inappropriate to answer that question ... that's looking forward to a potential case," said Roberts acquaintance Craig Bradley, a law professor at Indiana University School of Law-Bloomington and, like Roberts, a former clerk to Chief Justice William H. Rehnquist. "It is appropriate to ask about past cases, which is a little tricky because Roe v. Wade is both a past case and a future case.

"In theory, the Senate could say 'what do you think of the position of Roe v. Wade?' I doubt he would answer that one either, he would see through that," continued Bradley, whose book, "The Rehnquist Legacy," is due out by the end of the year. "But he might very well answer about a more general notion about the right to privacy, for example."

But Roberts may have to walk a fine line between choosing what questions not to answer, making him look like a stonewaller to some, and giving senators sufficient answers to satisfy their questions without prejudging cases likely to come before the court.

For example, if Roberts is asked his views on the separation of church and state, Bradley said, the nominee could respond that it is a constitutional principle and one that he certainly fully supports.

"You don't agree to get into the detail, [such as] 'well, what about school prayer?'" he added.

The Paper Trail

Because Roberts only has two years of experience deciding cases from the bench, Democrats may request writings and other work done by the nominee while he served as White House counsel for then-President Reagan from 1982-1986 and while he was principal deputy solicitor general during the administration of George H.W. Bush. The White House said Sunday it won't hand over all such material but Attorney General Alberto Gonzales said all requests would be considered.

Tracy Schmaler, spokeswoman for the Senate Judiciary Committee's ranking Democrat, Sen. Patrick Leahy (search), said a lot of research is going on currently to get as much information as possible about Roberts' past work, although no formal requests have been made for previous writings.

"Obviously, we're interested in his record, his opinions from the bench" and his work with both administrations, Schmaler said. "This is for the Supreme Court. I don't think you get bigger than that."

Leahy has stressed that "it's important to know who this person is … and for the American public," Schmaler said. "This is sort of the formal, important process — it's important for this to be thorough and complete."

As to what may happen if Roberts chooses to not answer some questions, Schmaler replied, "I think it's a little early to say ... one way or the other" how either Democrats or Republicans may respond.

But legal experts agree that probing Roberts' filings when he was a lawyer representing clients isn't necessarily fair game, since Roberts was espousing the views of his client and not necessarily his own.

"A ruling by a judge … it's not issued in a vacuum, it's issued in a particular case with particular facts with particular circumstances with particular law that some other case could involve different facts or circumstances or different nuances and law," said American Bar Association spokeswoman Nancy Cowger Slonim. "A ruling in one case is not a pledge, promise or vow to rule that way in a different case."

Although both Republicans and Democrats have said Roberts' even-mannered temperament, his patience and non-controversial demeanor will help him through the process, others say it won't be a cakewalk.

"It's not going to be a walk in the park, believe me," said Democratic strategist Bob Beckel. "There's going to be a paper fight here."

But Bush is urging senators to remember the recent past — when the Senate was taken to the brink over the president's judicial nominees — and to confirm Roberts.

"Despite the significant philosophical differences many senators had with Justice Ginsburg, she received 96 votes in favor of confirmation," Bush said in his July 16 radio address.

"The following year, Justice Stephen Breyer was confirmed 73 days after his nomination was submitted, with 87 votes in his favor. Again, Republican senators in large numbers voted for confirmation of Justice Breyer despite significant philosophical differences. These examples show that the thorough consideration of a nominee does not require months of delay."