‘If I express a view on a precedent … it signals to litigants that I might tilt one way or another in a pending case’
Judge Amy Coney Barrett followed in the late Justice Ruth Bader Ginsburg’s footsteps Tuesday during the second round of her confirmation hearings, refusing to answer questions from senators about how she would rule on particular cases that may come before the Supreme Court.
Barrett faced questions from Senate Judiciary Committee Democrats on abortion and Roe v. Wade, pending court cases on the Affordable Care Act, and hypothetical scenarios about the election being resolved by the Supreme Court. In each answer, Barrett reiterated her position that it would be inappropriate to give her opinion about a specific case, citing Justices Ginsburg and Elena Kagan who gave similar answers during their confirmation hearings.
In one exchange with committee ranking member Dianne Feinstein (D-Calif.) on Roe v. Wade, Barrett said that expressing her personal opinion on that landmark abortion rights case would tell potential litigants “that I might tilt one way or another in a pending case.”
Sen. Dianne Feinstein: “Do you agree with Justice Scalia’s view that Roe [v. Wade] was wrongly decided?”
— ABC News (@ABC) October 13, 2020
“Do you agree with Justice Scalia’s view that Roe was wrongly decided?” Feinstein asked.
“Senator, I do want to be forthright and answer every question so far as I can,” Barrett answered. “I think on that question, you know, I’m going to invoke Justice Kagan’s description, which I think is perfectly put. When she was in her confirmation hearing, she said that she was not going to grade precedent, or give it a thumbs-up or a thumbs-down. And I think that in an area where precedent continues to be pressed and litigated … it would actually be wrong and a violation of the canons for me to do that as a sitting judge.”
“If I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case,” Barrett explained.
Barrett’s answer is modeled after the so-called “Ginsburg rule,” which was a standard established in the 1993 Supreme Court confirmation hearings for Ginsburg by then-Senate Judiciary Committee Chairman Sen. Joe Biden (D-Del.). Biden asked that senators refrain from asking questions about “how [Ginsburg] will decide any specific case that may come before her.” His rule established that Ginsburg had no obligation to answer questions about cases that might come before the Supreme Court or her personal views on court precedent.
As Ginsburg herself explained during her 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.”
Sen. Chuck Grassley (R-Iowa) asked Barrett if she agreed with Ginsburg’s standard.
“Yes, I agree the Ginsburg rule reinforces judicial independence,” Barrett replied.
— RNC Research (@RNCResearch) October 13, 2020
Sen. Mike Lee (R-Utah) also cited the Ginsburg rule during his time to speak, responding to one of his Democratic colleagues who accused Barrett of using a “political talking point” by invoking Ginsburg and Kagan’s precedential refusal to answer questions on specific cases.
“To the extent that that’s what any colleague has suggested, I’d remind that colleague that’s just wildly incorrect,” Lee said.
Sen. Lee: " Justice Ginsburg did say it well…. A judge sworn to decide impartially can offer no forecast, no hints for that would show not only disregard for the specifics of a particular case, it would display disdain for the entire judicial process." pic.twitter.com/lAtPetMP4j
— ForAmerica (@ForAmerica) October 13, 2020
Barrett also repeatedly made clear that she has not made any promises or commitments to either the executive branch or the legislative branch about how she would rule on specific cases as a justice on the Supreme Court.
— RNC Research (@RNCResearch) October 13, 2020
Sen. Patrick Leahy (D-Vt.) questioned Barrett on the Affordable Care Act and a hypothetical election dispute, inquiring as to whether Barrett would recuse herself if the election did come before the court.
“Sen. Leahy, I want to begin by making two very important points, and they have to do with the ACA and with any election dispute that may or may not arise,” Barrett said. “I have had no conversation with the president or any of his staff on how I might rule in that case. It would be a gross violation of judicial independence for me to make any such commitment or for me to be asked about that case and how I would rule.”
“I also think it would be a complete violation of the independence of the judiciary for anyone to put a justice on the court as a means of obtaining a particular result,” she added.
Author: Chris Pandolfo