Judge Amy Coney Barrett is under no obligation to share her personal views about current and future judicial debates — nor should she. Senate Democrats know this, yet they continue to ask her to stake out positions on matters of policy.
Sen. Dianne Feinstein, a California Democrat, the ranking member on the Senate Judiciary Committee, asked Barrett repeatedly to tell the committee whether she agrees with the substance of the Affordable Care Act, whether she believes that Roe v. Wade lacks constitutional authority, and whether she believes gay marriage is a constitutionally afforded right. When Barrett informed Feinstein that she would not be able to answer such direct questions, since doing so would undermine her credibility as a sitting judge, Feinstein acted disappointed.
But Feinstein, like every other Democrat on the committee, knows that judicial nominees cannot and should not express their personal views on controversial political issues that could come before the courts. Doing so would make them appear biased and unable to do their job, which is to take each case as it stands and apply it to the law without bias or partiality. It was the late Justice Ruth Bader Ginsburg who summed up this principle best.
“A judge sworn to decide impartially can offer no forecasts, no hints” about how she would rule on a case, Ginsburg said, “for that would show not only disregard for the specifics of the particular case; it would display disdain for the entire judicial process.”
We call this the Ginsburg Standard, and every single judicial nominee has applied it to the confirmation process since. Barrett is simply observing the same standard, and Senate Democrats ought to respect judicial canon and stop asking pointed, direct questions that she cannot answer.
Democrats should instead use their time to ask Barrett questions about her past court opinions in which she has expressed her legal views. Not only would such questions about Barrett’s jurisprudence be appropriate, but they are also necessary. But Democrats seem bent on avoiding Barrett’s record — perhaps because they know it speaks for itself.
