WASHINGTON — Democratic Connecticut Sen. Richard Blumenthal says that the “Ginsburg standard” should not apply to Supreme Court nominee Neil Gorsuch because President Donald Trump established “litmus tests” for Gorsuch to meet.
This standard refers to Justice Ruth Bader Ginsburg, who told senators during her confirmation hearing in 1993 that a nominee should not have to answer questions about how he or she would rule on specific cases reviewed by the courts.
“The president promised his nominee, automatically, that’s his word, overturn Roe v. Wade. Now, all I want is for some assurance that this nominee would not meet that litmus test and a number of other of litmus tests that have been established,” Blumenthal told The Daily Caller Tuesday. “So I don’t view it as a double standard. … It’s not a double standard, because this president, unlike others, has established litmus tests.”
Democrats say Gorsuch should comment on previously ruled on cases, something past Supreme Court nominees were not expected to do.
Republicans point to Justice Stephen Breyer, a President Clinton appointee, who during his confirmation, told South Carolina Republican Sen. Strom Thurmond in 1994, he could not answer his questions about his thoughts on Roe v. Wade.
“Judge Breyer, it is likely that Justice Blackmun is most widely known to the public as the author of Roe v. Wade. What was your impression of his majority opinion in that landmark decision?” Thurmond asked.
Breyer replied, “You are asking questions, senator, that I know are matters of enormous controversy. … The questions that you are putting to me are matters of how that basic right applies, where it applies, under what circumstances. And I do not think I should go into those for the reason that those are likely to be the subject of litigation in front of the Court.”
Blumenthal argued that times are different now, and that “Roe v. Wade is a much more established precedent and this president is a different one that nominated [Breyer].”
Similarly, Sonia Sotomayor responded To California Sen. Dianne Feinstein about a question regarding the Constitution’s “commerce clause,” “No, I know. But the question assumes a pre-judgment by me of what’s an appropriate approach or not in a new case that may come before me as a Second Circuit judge or, again, if I’m fortunate enough to be a justice on the Supreme Court. So it’s not a case I can answer in a broad statement.”
In 1993, when Clinton appointed Ginsburg to the high court, she stated during her confirmation, “You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues.”
She added, “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.”
“I certainly don’t want you to have to lay out a test here in the abstract which might determine what your vote or your test would be in a case you have yet to see that may well come before the Supreme Court,” Democratic Judiciary Committee Chairman Patrick Leahy told Ginsburg the following day.
Leahy, however, demanded that Gorsuch reveal his views on court cases, stating last week, “I want to understand just how his philosophy would have been applied to important cases. For example, how would someone with his philosophy have ruled in cases upholding fundamental rights, such as Miranda rights, a woman’s right to make her own medical decisions, and marriage equality?”