David Rivkin, Andrew Grossman Author Column on Duty of Supreme Court Nominees to Refuse to Provide a Preview of Opinions

Articles / September 4, 2018

Partners David Rivkin and Andrew Grossman authored an opinion column published Sept. 3, 2018, in The Wall Street Journal. The column, “Kavanaugh and the Ginsburg Standard,” discusses the principle enunciated by Justice Ruth Bader Ginsburg at the opening of her U.S. Supreme Court confirmation hearings in 1993. The principle, which has deep roots in law and history, holds that Supreme Court nominees refuse to share their stance regarding actual or hypothetical cases that may come before the court.

Rivkin and Grossman explain that judges are required to decide cases on the specific facts of each case, legal precedent and argument, thus any hypothetical response is irrelevant, improper and also a threat to the Fifth Amendment guarantee of due process.

As nominee Judge Brett Kavanaugh begins confirmation hearings, Rivkin and Grossman note:

This week senators would do well to stick to more illuminating lines of inquiry: the more than 300 written opinions Judge Kavanaugh issued over his 12 years on the bench, his speeches and articles, his judicial philosophy, his character. There is no legitimate reason to demand hints, forecasts and previews that Judge Kavanaugh is duty-bound to deny.

Read the article (registration required).