On Monday July 9th, President Trump will reveal his choice to succeed the retiring Justice Anthony Kennedy on the Supreme Court of the United States. As he is doing so, U.S. Senate Democrats will viciously attack whomever he chooses.
First, they will demand that the Senate’s Advice and Consent should not even be taken up until after the November general elections. When they come to the realization that their delay tactic will not prevail, Senate Minority Leader Chuck Schumer (D-NY) will launch the opening salvos of the Schumer Storm.
Schumer’s hue and cry will be that the Senate must interrogate the nominee as to their legal “doctrine.” He will orchestrate the ideological testing of the President’s nominee.
A little history here is worth mentioning. There is no constitutional precedent for subjecting judicial choices to a senatorial third degree. No Supreme Court appointee was even interrogated by the Senate until 1925, and committee questioning was irregular until it became standard confirmation practice in 1955.
But then there is the “Ginsburg Standard.”
In 1993, President Bill Clinton appointed Ruth Bader Ginsburg to the U.S. Supreme Court, and she still serves today. Six years earlier, conservative Robert Bork was denied confirmation when hostile questioners drew him into a debate on judicial philosophy. But Judge Ginsburg was up to the challenge at her Judiciary Committee interrogation.
Judge Ginsburg said in her remarks:
“You are well aware that I come 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 to 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. Each case comes to court based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present. 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.”
The Judiciary Committee and the Senate should examine the appointee on the basis of their qualifications, especially on their written record of their judicial rulings, briefs and articles, not on their judicial philosophy or anticipated leanings on specific issues.
President Trump’s appointee would be well advised to adopt the “Ginsburg Standard” in the face of the Schumer Storm.