Ruth Bader Ginsburg, the diminutive liberal colossus of the Supreme Court, has built a distinguished record as a Justice, but her legacy as a nominee is more dubious. In her confirmation hearing before the Senate Judiciary Committee, in 1993, she refused to answer most questions about how, if confirmed, she would rule. In an oft-quoted phrase, she vowed to give “no hints, no forecasts, no previews.” Nominees have invoked this stonewall ever since. Last week, Neil Gorsuch, Donald Trump’s choice to fill the seat of the late Antonin Scalia, proved an especially ardent follower of what has come to be known as the Ginsburg rule.
Asked repeatedly by members of the committee about his views of such cases as Roe v. Wade and Citizens United, Gorsuch not only refused to answer but went on to say that his feelings, if he had any, were of no consequence: “It’s not a matter of agreeing or disagreeing. It’s a matter of it being the law, and my job is to apply and enforce the law.” Gorsuch portrayed himself as a kind of judicial automaton, obligated to pay mindless obeisance to the Court’s prior rulings. This interpretation of the role of Supreme Court Justices is, to put it charitably, incorrect—they can and do overturn their earlier holdings. And Trump didn’t nominate Gorsuch simply because he knows how to follow precedent. He nominated Gorsuch because his career resembles a lab experiment synthesizing every trend in modern conservative thought.