Will Senate apply the Ginsburg or the Barrett Rule to Judge Jackson?

Pablo Picasso once said, “Learn the rules like a pro, so you can break them like an artist.” Under this standard, the Supreme Court confirmation hearing for Judge Ketanji Brown Jackson could prove to be a masterpiece.

It may depend on the application of two rival rules or models for such hearings. Notably, both were crafted by Democrats, during the 1993 confirmation of Ruth Bader Ginsburg, then, during the 2020 confirmation of her replacement, Amy Coney Barrett.

During Ginsburg’s confirmation, then-Judiciary Committee chairman Joe Biden told her that a confirmation is where a nominee is expected to “answer questions or to discuss your judicial philosophy.” He later expressed concern over how Ginsburg, “at least from my perspective, appeared to be reticent to answer some of our questions even more so than recent nominees.” 

Nevertheless, in her confirmation, Ginsburg declared that she refused to answer questions on her position on particular issues. “I’m not going to give an advisory opinion on any specific scenario,” she explained, “because as clear as it may seem to you, I think I have to avoid responding to hypotheticals because they may prove not to be so hypothetical.”

What became known as the Ginsburg Rule meant that nominees could refuse to answer questions on how they interpret the Constitution on issues like abortion. The rule has been given broader and broader meaning with each confirmation.

I have been a critic of the rule as reducing confirmations to largely contentless staged events where nominees avoid legitimate questions on their interpretative approaches in any given area. Ironically, Ginsburg became known for publicly discussing issues related to pending cases or political questions after she was confirmed.

In 2020, Senate Democrats seemed to abandon that rule and demanded that Amy Coney Barrett confirm her likely vote on pending issues ranging from ObamaCare to abortion rights. Indeed, some senators said they would vote against her if she did not expressly confirm that she would vote to preserve the Affordable Care Act (ACA) and uphold Roe v. Wade. Barrett correctly refused to do so.

While I have been a critic of the Ginsburg Rule in barring discussion of judicial philosophy, it was a dangerous and outrageous demand by Democratic senators to confirm Barrett’s position on pending cases. They insisted Barrett was evasive and was being put on the Court to kill the ACA. It was an absurd claim. As I wrote at the time, the pending case was not a serious threat to the ACA and, if anything, Barrett was most likely to vote for its preservation — which she ultimately did. Nevertheless, Democrats surrounded Barrett with photos of the type of people who could die without the ACA, or with Barrett’s confirmation.

Now, it is a Democratic nominee, and it appears the Ginsburg Rule once again will reign supreme in her confirmation hearing. It may be expanded, too.

In the Barrett confirmation, Democratic senators pledged to vote against Barrett solely on her judicial philosophy. Now, however, Rep. Jim Clyburn (D-S.C.) has declared that, as the Court’s first female black nominee, Jackson’s confirmation is “beyond politics” and the vote is “about the country, our pursuit of a more perfect union.”

After Jackson’s nomination, I noted that, with only one appellate opinion, Judge Jackson’s judicial philosophy remained largely unknown. The reason is simple: Jackson has largely served on the trial level and, despite hundreds of decisions, trial judges are required to follow the precedent of the Supreme Court and their circuit court. Moreover, most trial decisions deal with insular rulings on evidence or outcomes at trial. While there are a couple of longer trial decisions, most of Jackson’s record does not clearly establish her interpretative approach to the Constitution or statutes.

That simple observation has met a torrent of objections. “Above the Law’s” senior editor, Joe Patrice, suggested my questioning of Jackson’s judicial philosophy was a racist dog whistle: “He’s just asking questions! He’d say the same thing about any nominee! It’s a lie, of course. He wouldn’t say this stuff about any nominee.”

On the contrary, I asked precisely that question about Court nominees Samuel Alito, John Roberts, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The difference is that some of them had appellate opinions or books illuminating their judicial philosophy. This is not a criticism of Jackson. Indeed, there is a general preference for nominees with lower profiles on interpretative issues — nominees without clear positions that can be attacked by the other party.

Yet this seems off-limits with Jackson. Even raising the lack of clarity on Jackson’s judicial philosophy was said by Patrice to be another “‘lesser Black women’ [attack] with a gentler touch. But the goal is the same.”

In her recent confirmation to the appellate court, Jackson repeatedly refused to discuss her judicial philosophy with senators and, curiously, suggested it would be somehow inappropriate for her to explain her view on constitutional interpretation as a lower court judge. Jackson may now use the Ginsburg Rule to refuse to explain her judicial philosophy beyond the most generalized terms.

She also may refuse to answer a critical ethical question: I previously wrote that Jackson should recuse herself from a Harvard case involving race criteria for admission because she serves on Harvard’s Board of Overseers, which describes itself as “critical to the governance of Harvard.” This is not, as Ginsburg said, a hypothetical that “may prove not to be so hypothetical.” It is a real conflict, and the facts are established. Even though Jackson will leave the board in May, before the case is argued before the Court, the underlying facts will not change.

Ethical issues have occasionally arisen in past nominations, like the unsuccessful confirmation of Abe Fortas as chief justice when retainer and speaking fees were raised. Unlike Fortas, Jackson is not accused of any wrongdoing; the issue is how she defines and addresses a conflict of interest. 

Moreover, Jackson should be asked if she adheres to the current view of the justices that they are not controlled by the Code of Judicial Ethics. I have also long opposed that view as entirely unfounded.

The question is whether an ethical conflict on a pending case will be treated as falling within the Ginsburg Rule. A nominee could object that a guarantee to recuse could be viewed as a promise in exchange for confirmation. However, at a minimum, she should be able to address generally her interpretation of the ethics code with regard to board memberships and leadership positions.

Before we create a “Jackson Rule” on ethical issues, the Senate should consider the implications of further narrowing the range of permissible questions in confirmations. 

There are many things I like about Judge Jackson, including her litigation experience, service as a public defender, and years on the trial court. She has an extraordinary background and a stellar reputation. I do not agree with critics that her alleged support for critical race theory or her praising of the controversial 1619 Project are barriers to being on the court.

One would think that a nominee’s approach to judicial interpretation and judicial ethics would be the most material questions for a senator in giving “advice and consent” on a new justice. Judge Jackson could greatly advance the confirmation process by simply answering these questions.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.