Robert Novak on "The Ginsburg Standard"

Robert Novak wonders if the Democrats on the Judiciary Committee will be as accomodating to Judge Roberts' refusals to answer questions about legal issues that might come before him once on the Court as they were to Ruth Bader Ginsburg's refusals:

WASHINGTON -- Twelve years ago at a Senate Judiciary Committee confirmation hearing, Sen. Patrick Leahy propounded a theoretical question about constitutional separation of church and state. "I prefer not to address a question like that," replied the Supreme Court nominee, Judge Ruth Bader Ginsburg. Leahy, a dogged questioner, pressed for an answer. "Senator," Ginsburg persisted, "I would prefer to await a particular case." In response, Leahy was uncharacteristically obsequious: "I understand. Just trying, Judge. Just trying."

Will Pat Leahy, now Judiciary's ranking minority member, and his Democratic colleagues exercise such forbearance when Judge John G. Roberts predictably takes the same posture Justice Ginsburg assumed in July 1993? That would be most unlikely. With Roberts leaving a meager paper trail and a short time on the District of Columbia Circuit Court, Democrats are preparing hundreds of the substantive questions Ginsburg refused to answer.

Accordingly, Roberts's confirmation managers are putting forth the "Ginsburg Standard." That challenges Democratic senators who in 1993 did not criticize the petite (barely more than 5 feet tall), 60-year-old woman when she coolly refused to answer questions. But then, there was no threatened move of the court's political balance to the right as is foreshadowed today by the Roberts nomination.

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Ginsburg, who was the first high court nominee by a Democratic president in 26 years, now is described as ideologically "mainstream" [ED: Yeah, right -- and I'm a squishy moderate]. In fact, she was on the left edge as former general counsel of the ACLU (American Civil Liberties Union). Six years earlier, conservative Judge Robert Bork was denied confirmation when hostile questioners drew him into a debate on judicial philosophy. So, it was imperative for Democrats to protect Ginsburg by gagging her.

Washington lawyer Jay T. Jorgensen has prepared a paper for the conservative Federalist Society that summarizes the Ginsburg Standard. He lists seven types of questions she would not answer: no hypotheticals; no requirement for universal legal expertise; no questions outside the nominee's case experience; no cases likely to come before the Supreme Court; nothing regarding management of the U.S. Judiciary; nothing about evolving areas of the law; no discussion of the nominee's personal feelings.

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(emphasis added)

My Comments:
Got that, Senator Schumer?

Justice Ginsburg would allow "no discussion of the nominee's personal feelings" during her confirmation hearing. I assume that means "deeply held" or otherwise.