Kavanaugh Misuses 'Ginsburg Rule' to Avoid Giving His Stance on Abortion, Advocates Say

Reproductive rights advocates argue that Brett Kavanaugh misinterpreted Justice Ruth Bader Ginsburg's comments from her own 1993 confirmation hearings, during which she said judges shouldn't opine on specific Supreme Court cases.

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Sep 5 2018, 4:45pm

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Supreme Court nominee Brett Kavanaugh skirted direct questions about his views on abortion rights on Wednesday by invoking the "Ginsburg Rule"—a precedent Kavnaugh and others believe Justice Ruth Bader Ginsburg established during her own Senate confirmation hearings.

During the 1993 hearings, Ginsburg told senators she wouldn't opine on individual Supreme Court cases, telling the committee: "A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only a disregard for the specifics of the of the particular case, it would display disdain for the entire judicial process."

On Wednesday, Senate Judiciary Committee Chairman Chuck Grassley quoted Ginsburg on this, asking Kavanaugh if he shared her view that Supreme Court nominees shouldn't answer questions about what they think about past cases, or how they would rule on future ones.

"I do," Kavanaugh said. "As Justice Ginsburg said: No hints, no forecasts, no previews. Justice [Elena] Kagan said repeatedly, 'No thumbs up or thumbs down' when she was asked, 'What do you think about this case?' What do you think about that case?' That nominee precedent is part of the independence of the judiciary. That’s something I need to adhere to as a nominee now."

Indeed, when California Senator Dianne Feinstein asked Kavanaugh directly about Roe v. Wade, Kavanaugh stuck to standard answers about his belief in upholding "precedent."

"I said that it’s settled as a precedent of the Supreme Court," Kavanaugh told Feinstein. "It’s an important precedent of the Supreme Court and [has been] reaffirmed many times."

Kavanaugh isn't the only one to lean on the Ginsburg Rule during his confirmation hearings. Just last year, Justice Neil Gorsuch also invoked the rule to dodge questions about Roe, saying that if he went on the record with his views on the landmark abortion rights case he'd be "tipping [his] hand and suggesting to litigants that [he has] already made up [his] mind about their cases."

Reproductive rights advocates argue that Kavanaugh and others have misinterpreted Ginsburg's quote by taking to mean that Supreme Court nominees shouldn't reveal their "judicial philosophy" either—that is, how they interpret the Constitution.

Ginsburg—unlike Kavanaugh or Gorsuch—gave a straight answer on the constitutional right to abortion, advocates point out: "This is something central to a woman's life, to her dignity," Ginsburg said at the time. "It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.”

"It's clear that Brett Kavanaugh doesn't want to tell us the truth—if confirmed to the Supreme Court, he would gut Roe v. Wade," Dawn Laguens, the executive vice president of Planned Parenthood Action Fund, tells Broadly. "By dodging questions from senators today, he avoided the actual Ginsburg standard, which is giving straight answers to straight questions."

Adrienne Kimmell, NARAL Pro-Choice America's vice president, similarly suggested that by invoking the Ginsburg Rule, Kavanaugh could give nothing more than a canned, boilerplate response.

“Brett Kavanaugh’s first answer on abortion was nothing more than a one-dimensional recount of history that ignored the fundamental rights and needs of women," Kimmell said in a statement. "No one is fooled ... This is not the time to take our rights and lives for granted and assume our fundamental freedoms are safe. Precedent can be overturned, and Trump appointed Kavanaugh as the man to do just that.”