As the confirmation hearings for Supreme Court nominee Judge Neil Gorsuch draw closer, he may want to follow the example of liberal justices Ruth Bader Ginsberg, Sonia Sotomayor and Elana Kagan in refusing to be trapped in hypothetical discussions about thorny issues.
Gorsuch has not weighed in on a case involving abortion, and Democrats on the Senate Judiciary Committee will undoubtedly bring up the subject in an attempt to further whip up abortion activists and knee-cap Gorsuch’s nomination.
But three current justices nominated by Bill Clinton and Barack Obama wouldn’t engage in similar conversations and their answers provide a rhetorical pathway for Gorsuch.
Then U.S. Solicitor General Elana Kagan told Sen. Pay Leahy in 2010 that it is important for senators to have as much information as possible on nominees, but “…it would be inappropriate for a nominee to talk about how she will rule on pending cases or cases beyond that that might come before the court in the future.”
In 2009, then-Judge Sonia Sotomayor refused to answer about her “understanding of the constitutional limitations on any government entity taking land for public purpose.”
After explaining the outcome in the Supreme Court’s decision in the Kelo case, Sotomayor said, “Opining on a hypothetical is very difficult for a judge to do and as a potential justice on the Supreme Court, but more importantly as a Second Circuit judge still sitting, I can’t engage in a question that involves hypotheses.”
In 1993, nominee Ruth Bader Ginsberg told the Judiciary Committee she would not “rehearse” her views before the senators.
“You are well aware that I come to this proceeding to be judged as a judge, not as an advocate,” Ginsberg said.
“But I am and hope to continue to be a judge, it would be wrong for me to say or to 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,” she said.
“Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to court 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 present,” Ginsberg told the committee.
“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.”