Supreme Court

Justice Ginsburg Speaks Sensibly about Judicial Confirmations

The Notorious RBG counsels against ideological litmus tests for judicial nominees.

|The Volokh Conspiracy |


Speaking at the University of Chicago, Justice Ruth Bader Ginsburg lamented the current politicized and polarized approach to judicial confirmations.

During the hourlong event, Ginsburg also lamented the increasingly partisan nature of Supreme Court confirmations, in which senators vote mostly along party lines.

She noted in particular the confirmations of Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan. Nominated by President George W. Bush in 2005, Roberts was confirmed with a 78-22 vote. Sotomayor and Kagan—nominated by President Barack Obama in 2009 and 2010, respectively—each received fewer than 70 affirmative votes.

"We really should get back to the way it was when people were examining qualifications of what it takes to be a judge, rather than trying to guess how they would vote on contentious cases," said Ginsburg, who was confirmed in 1993 with a 96-3 vote, becoming the second woman to join the nation's highest court.

The Chicago Sun-Times covered her remarks here.

Of note, when Justice Ginsburg was herself a judicial nominee, she articulated what has come to be known as the "Ginsburg Standard" of "no forecasts, no hints" on how a judge might rule from the bench:

"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; each case is 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 choose to 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."

Although subsequent judicial nominees have repeatedly sought to adopt this approach, Senators on the judiciary committee have been resistant, particularly with judicial nominees from the opposite side of the aisle.

Speaking of Justice Ginsburg, CNN reports on how she welcomed Justice Neil Gorsuch to the Court after his confirmation.