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Blame RBG For Kavanaugh’s Silence On Key Issues

Brett Kavanaugh expects to be peppered with tough questions by senators during his four-day Supreme Court confirmation hearing this week. But he most likely won’t reveal his personal opinions on key issues, thanks to something called the Ginsburg Standard.

Named after Justice Ruth Bader Ginsburg, the rule dates back to her 1993 confirmation hearing, according to the Wall Street Journal. There she explained: “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.”

Or, as she stated more simply later: “No hints, no forecasts, no previews.”

While the standard is attributed to her, it has deep roots in the law, according to David Rivkin Jr. and Andrew Grossman, both of whom practice appellate and constitutional law in Washington. Since the 1950s, when judicial hearings became more common, nominees have been hit with hundreds of questions. To the frustration of the senators leading the hearings, nominees typically refuse to comment on actual or hypothetical cases, as they are not currently judging, which requires applying law to facts of a particular case. Taking a legal question and separating it from its particular context — hearing arguments, reviewing documents — is not judging, the attorneys explain in the Journal. It becomes a guessing game as to what is the right answer.

So viewers sitting on the edge of your seat, wondering where Kavanaugh will lean on Roe v. Wade, among other divisive matters, hold your breath. With the Ginsburg Standard in place, he’ll most likely be keeping mum.

Alyssa Fisher is a news writer at the Forward. Email her at [email protected], or follow her on Twitter at @alyssalfisher

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