Alito Hearings Fact Check: Senators Hatch and Kyl

Judiciary Committee, Minority Staff
Contact: Tracy Schmaler, 224-7703

See this document at: http://democrats.senate.gov/judiciarycommitteesupremecourt/

Today, Senator Hatch construed the "Ginsburg Standard" more narrowly than Chief Justice Roberts did in his hearing. Hatch: "Needless to say, those who will demand such advisory opinions in this hearing will do so precisely on those issues that are likely to come before the Court. But as the Washington Post editorialized just this morning, however, "he will not - and should not - tell Americans how he will vote on hotly contested issues." When Judge Ruth Bader Ginsburg was before us in 1993, she said her standard was to give no hints, no forecasts, no previews and declined to answer dozens of questions." [1/09/06]

But Senator Hatch used to recognize the importance of questioning nominees thoroughly:

"I think you ought to tell us where you really come down on this thing," (demanding answers from Ginsburg). [Ginsburg Hearing, Page 264, July 22, 1993]
"It should be shown, that both the majority and the minority have every right to investigate here. That is our job. We are paid for that." [Scalia Hearing, Page 127, August 6, 1986]
"The standard for reviewing judicial nominees must be less deferential than the standard for reviewing executive branch nominees....Federal judges have lifetime tenure and are unaccountable to the political branches." [Congressional Record, April 14, 1994]

Senator Kyl also construed the "Ginsburg Standard" narrowly: "In other words, no judicial nomination should answer any question that is designed to reveal how the nominee will rule on any issue that could come before the Court. This rule has come to be known as the Ginsburg standard because justice Ginsburg stated during her own confirmation hearings that she would give no forecasts, no hints, about how she would rule on issues. I was pleased to see that Chief Justice Roberts refused to prejudge issues or make promises in exchange for confirmation votes. We're better off because of his principled stand." [1/09/05]

But Chief Justice Roberts explained the "Ginsburg Standard" differently. He distinguished between topics Ginsburg had written on, and those that she had not.

ROBERTS: Then Judge Ginsburg, now Justice Ginsburg, explained that she thought she was at greater liberty to discuss her writings.

She had written extensively on that area, and I think that's why she felt at greater liberty to talk about those cases.

In other areas where she had not written, her response was that it was inappropriate to comment. [9/13/05]

Judge Alito's record has raised many concerns about his commitment to the rights and freedoms of all Americans. Judge Alito has written extensively on many crucial topics, including executive power and the right to privacy. If Judge Alito is to live up to the "Ginsburg Standard," as interpreted by Chief Justice Roberts, then he will have to be forthcoming with his answers.