Originally uploaded at SSRN.


Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the Ginsburg nomination by decades. Second, the Ginsburg Rule really is two rules: one governing when nominees should not provide direct responses to certain types of questions, and a second governing when they should. Third, we show that Neil Gorsuch, despite his insistence to the contrary, did not really follow the example set by Justice Ginsburg. Instead, unlike Justice Ginsburg and most other recent nominees, Gorsuch regularly refused to articulate firm positions on even our most widely accepted constitutional issues and cases. In doing, we argue, Gorsuch’s practice risks diminishing one important way in which we as a society use Supreme Court confirmation hearings to debate and endorse constitutional change.