On the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that may come before them if they are confirmed. At his confirmation hearing, then-Judge Neil Gorsuch cited that rule numerous times as grounds for refusing to answer questions about his views on particular legal issues. After comparing Gorsuch’s responses to those of nominees between 1939 and 2010, including Ruth Bader Ginsburg, Collins and Ringhand found that Gorsuch was the least responsive nominee in decades, and they are worried he is setting a trend.

Neil Gorsuch’s confirmation hearing (Art Lien)

Collins and Ringhand explain that the practice of refusing to respond to certain questions is misattributed to Ginsburg, and in any case tells only half the story. After analyzing a database of confirmation-hearing questions and answers from every hearing between 1939 and 2010, they found that nominees long predating Ginsburg refused to answer questions regarding cases that might come before them. But these same nominees, including Ginsburg, were willing to respond to questions about their support for longstanding precedent that had become a part of the constitutional canon. The authors conclude that the “Ginsburg Rule” is really two rules: First, nominees have consistently refused to answer questions about unresolved legal questions likely to come before the Supreme Court to avoid the appearance of bias and preserve judicial independence; and second, aside from Gorsuch, nominees in the modern era have consistently been willing to confirm their support for well-established Supreme Court precedent.

Nominees’ refusal to answer certain types of questions is as old as the confirmation process itself. In 1939, Justice Felix Frankfurter was the first to undergo public confirmation hearings at which he answered questions under oath. He was also the first to refuse to answer some questions on the grounds that it would be improper to do so. At almost every confirmation hearing since, the nominee has asserted what Collins and Ringhand refer to as a “privilege” to refuse to respond to some questions.

Nominees assert that privilege for two reasons: First, to avoid any appearance of having prejudged an issue that could come before the court; and second, to protect judicial independence by refusing to make promises or commitments to senators on the Judiciary Committee in exchange for confirmation.

Collins and Ringhand agree these concerns are valid, but they argue that another value is at stake in Supreme Court confirmation hearings that cuts in favor of responsiveness, at least to some types of questions. Such hearings provide an opportunity for the senators, and by extension those they represent, to determine whether the nominee deserves a spot on the Supreme Court. The Senate can only serve that role if the nominees answer questions regarding the precedents and doctrines they support.

The authors have studied the confirmation hearings stretching back to Frankfurter’s in 1939 to measure the frequency with which would-be justices refused to answer questions compared to their willingness to give firm views regarding established case law. They analyzed data from the U.S. Supreme Court Confirmation Hearing Database, which contains information about every question and answer at every confirmation hearing from 1939 through 2010, to determine what they label a nominee’s “responsiveness ratio.” (They also incorporated into that dataset information from Gorsuch’s hearing.) The responsiveness ratio is the number of questions a nominee refused to answer on the basis of the so-called Ginsburg Rule compared to the number of questions about doctrine and precedent that the nominee answered. They then ranked all the nominees on this metric to see which ones responded significantly more often than not. They also broke down the areas and issues on which Ginsburg and Gorsuch, respectively, were responsive and on which issues they held back.

Using these metrics, Collins and Ringhand found that Ginsburg refused to respond approximately 10 percent of time — a higher rate than some recent nominees (such as John Roberts, at 6.6 percent), though lower than others (such as William Rehnquist, at 12.2 percent). But she gave firm responses 15.44 percent of the time, putting her at a healthy responsiveness ratio of +5.08. In contrast, Gorsuch asserted the privilege 6.6 percent of the time, but very rarely gave firm answers to any question about doctrine or precedent, including direct questions about the validity of cases such as Brown v. Board of Education and even Marbury v. Madison (though later in his hearing he agreed that case was correctly decided). His response rate was only 0.75 percent, leading his responsiveness ratio to be -5.91, far below the norm set over the last few decades.

Collins and Ringhand are disturbed by Gorsuch’s refusal to affirm even longstanding and well accepted Supreme Court precedent. They fear that if nominees stop taking any positions on previous Supreme Court precedent — even those concerning uncontroversial issues unlikely to come back before the court — the confirmation hearings will lose their value. The nation will also lose an opportunity to determine which previously disputed Supreme Court precedents have become an accepted part of the constitutional canon, and which are still up for debate.

In conclusion, they argue that the future nominee should follow what they call the “Ginsburg Rules,” with an emphasis on the plural. That is, the nominee can and should assert a privilege not to respond to questions about cases or issues that remain controversial, but should also take care to give clear answers to questions about cases that are now accepted as part of the constitutional canon.

Posted in Retirement of Justice Anthony Kennedy, Academic Round-up, Featured

Recommended Citation: Amanda Frost, Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings, SCOTUSblog (Jul. 11, 2018, 11:43 AM), http://www.scotusblog.com/2018/07/academic-highlight-collins-and-ringhand-on-nominees-responsiveness-at-supreme-court-confirmation-hearings/