Robert Novak has a column today entitled “Will Dems apply Ginsburg Standard?," in which he argues that Ruth Bader Ginsburg refused to answer questions about her views on hot-button issues during her Supreme Court confirmation hearings in 1993, and that Judge Roberts should follow her example.
There are a couple of problems with this. First, Novak’s portrayal of Justice Ginsburg’s hearings just isn’t accurate. Then-Judge Ginsburg did answer Senators’ questions on a number of controversial issues, including, notably, abortion and the right to privacy—in fact, she spoke at length about her views on this subject. Second, she had a very extensive record of opinions and articles when she appeared before the Judiciary Committee, giving Senators an ample basis on which to determine her views on important legal issues – which is not the case with Judge Roberts.
Here’s Justice Ginsburg’s response to then-Senator Hank Brown’s question about the constitutional underpinnings of the right to choose:
“[Y]ou asked me about my thinking about equal protection versus individual autonomy, and my answer to you is it is both. This is something central to a woman’s life, to her dignity. It is a decision that she must make for herself. And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
And here’s her answer to a question by Senator Leahy about whether there’s a constitutional right to privacy:
“There is a constitutional right to privacy which consists I think of at least two distinguishable parts. One is the privacy expressed most vividly in the Fourth Amendment, that is the government shall not break into my home or my office, without a warrant, based on probable cause, the government shall leave me alone. The other is the notion of personal autonomy, the government shall not make my decisions for me, I shall make, as an individual, uninhibited, uncontrolled by my government, the decisions that affect my life’s course.”
Indeed, the Judiciary Committee’s report on the Ginsburg nomination concluded that “the committee knows far more about Judge Ginsburg’s views on reproductive rights than it has known about any previous nominee’s. Judge Ginsburg’s record and testimony suggest both a broad commitment to reproductive freedoms and a deep appreciation of the equality and autonomy values underlying them.”
Novak’s second error is to ignore the fact that when Ginsburg appeared before the Committee in 1993, there was already an extensive public record of her views available to Senators to review – though he does correctly note that Judge Roberts (by contrast) has a “meager paper trail.” Here’s the 1993 Judiciary Committee report on the Ginsburg nomination again:
“[E]ach member of the committee had ample means, prior to Judge Ginsburg’s hearing, to discover much pertinent information—indeed, the most pertinent information—about Judge Ginsburg’s judicial approach and method. In more than 300 signed appellate opinions, and more than three score articles, Judge Ginsburg told the Senate and the American people an enormous amount about herself even before the hearings opened.”
Even if Ruth Bader Ginsburg really had refused to answer the Committee’s questions, then, it would be comparing apples to oranges to say that Roberts could do the same, since the public and the Senate now know next to nothing about his views. Judge Roberts must be forthcoming in his confirmation hearings, notwithstanding Novak’s misguided effort to give him cover for declining to do so.
