Senate Democrats have repeatedly pressed Judge Amy Coney Barrett, President Donald Trump’s Supreme Court nominee to replace Ruth Bader Ginsburg, on how she would rule in cases on abortion and Obamacare. Yet Barrett rightly responded that she could not say exactly how she would rule in particular cases. Democrats argued that Trump selected Barrett in order to strike down Roe v. Wade (1973) and Obamacare, but Barrett rightly followed what is known as the “Ginsburg Rule.”
Near the end of Ginsburg’s confirmation hearing before the Senate, Ginsburg said, “My own views and what I would do if I were sitting in the legislature are not relevant to the job for which you are considering me, which is the job of a judge.” She refused to say what her specific position would be on cases before the Supreme Court.
When pressed for her position on Obergefell v. Hodges (2015), in which the Supreme Court invented a constitutional right to same-sex marriage, Barrett responded, “As Justice [Elena] Kagan put it, I’m not going to give a thumbs up or a thumbs down” on abortion cases.
Barrett said she would generally follow precedent, except in extraordinary cases.
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The Judicial Crisis Network released an ad praising Barrett’s use of the Ginsburg rule, and quoting Sen. Chuck Schumer (D-N.Y.) and then-Sen. Joe Biden (D-Del.) supporting the rule.
“There is a grand tradition that I support that you can’t ask a judge who’s nominated … about a specific case,” Schumer said.
“You not only have a right to choose what you will answer and not answer but, in my view, you should not answer a question of what your view will be,” Biden said.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.