Professor Aaron Saiger was quoted in a Time article about Supreme Court Justice Ruth Bader Ginsburg. Saiger served as a law clerk to Justice Ginsburg from 2001 to 2002.
With the 25th anniversary of Ruth Bader Ginsburg’s confirmation to the Supreme Court on Friday, a precedent set during her hearings has become a hot topic on Capitol Hill.
Under the so-called “Ginsburg standard,” a nominee for the Supreme Court may withhold from commenting on topics or cases that could come up before the bench in the future.
“What has happened to the rule since is that, as the nominations and the hearings became more and more partisan, the reticence of the nominees grew,” said Aaron Saiger, a former Ginsburg clerk who now teaches at the Fordham School of Law. “I wouldn’t say that I can say that with respect to every nominee… but as a trend, the unwillingness of judges to answer questions has gone up.”
Saiger notes that Ginsburg wouldn’t have seen her conduct as anything novel. The Model Code of Judicial Conduct was created in 1989 — before Ginsburg’s hearings — to reflect norms for judges. One section counsels judges not to opine on subjects that may later arise at the bench. “All she did was memorably articulate that rule for the committee,” Saiger said. “So to say that it was a precedent in that sense — she would not, and I would not either.”