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OK, so I'm not a lawyer, let alone a constitutional scholar like President Obama. But seeing as Justice Souter has announced his intention to retire, I thought it would be fun to think about the questions that Obama (or Senate Judiciary Committee members) should ask of a (potential) Supreme Court nominee.

First, general questions about deciding cases from a Constitutional perspective:

  1. How would you characterize your approach to constitutional interpretation, as contrasted with that of colleagues you have worked with?
  1. What is the role of precedent in deciding cases, and on what grounds may a precedent be overturned?
  1. Fairness under the law is perhaps the chief responsibility of a jurist. But this is extremely subjective. Why is it the case that two intelligent people such as Justice Stevens and Justice Scalia can have contradictory views about what is fair in a particular situation?

(More below the fold.)

Next, touching on specific issues/rights:

  1. Griswold concluded there is an implied right to privacy under the Constitution/Bill of Rights. What other implied rights would you be willing to entertain? Access to basic healthcare? Ability to work for a living wage? High-speed Internet access? What criteria separate Constitutional rights from things that are purely subject to legislation?
  1. There is a case pending regarding the role of race in evaluations of firefighters. What do you anticipate Justice Scalia will say about the case? How would you argue the opposite point of view?
  1. Racial, ethnic, and religious groups have been declared to be suspect classes deserving heightened scrutiny/skepticism under the Equal Protection Clause of the 14th Amendment. What are the arguments for and against inclusion of sexual orientation in the list of classifications which merit strict scrutiny? What bearing, if any, would it have on state laws pertaining to marriage?
  1. A foreigner is captured on the battlefield and brought to the U.S. for allegedly fighting against American soldiers. How do that person's rights under the Constitution differ from those of an American citizen?
  1. In your view, how does the government's ability to regulate political spending/speech by institutions and organizations differ from its ability to regulate political speech by individuals?
  1. Recent cases have cited international law/norms and evolving points of consensus in justifying their decisions, e.g. on the death penalty. What bearing ought international law or norms to have on domestic cases? What about trends witnessed in public opinion or in state decisions?

Finally, regarding the political dimension of serving on the nation's highest court:

  1. What would you say to the accusation that you "legislate from the bench"? Or to the claim that ideology should play no part in the judicial appointment/confirmation process?
  1. If you were on the Supreme Court, would you see a role for yourself interacting with the public beyond hearing cases and writing opinions?
  1. What would you guess will be the next constitutional amendment that is ratified?

Of course, there are many topics I didn't mention. What would you ask a SCOTUS candidate?

Originally posted to neatnate on Fri May 01, 2009 at 12:40 PM PDT.

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Comment Preferences

  •  You missed one (1+ / 0-)
    Recommended by:
    TheUnknown285

    If, in a case before you, secular US law explicitly contradicts whatever you believe is God's law according to your religion, would you:

    1. Follow God's law (aka "the dictates of your conscience") regardless of secular law;
    1. Follow secular law regardless of your religious beliefs of what God mandates of you;
    1. Recuse yourself?

    One day posterity will remember, this strange era, these strange times, when ordinary common honesty was called courage. -- Yevgeny Yevtushenko

    by RandomActsOfReason on Fri May 01, 2009 at 12:44:10 PM PDT

  •  Are You Willing to Amend This? (1+ / 0-)

    I think it goes without saying that we need to know if the person has diabetes... unless you're just assuming that nobody in the world is keeping that secret.

    If spittle & tooth=vigor & youth Bill-O & Savage won't grow any older If wishes & dreams=bitches & beams We'll all live in skyscrapers bu

    by TooFolkGR on Fri May 01, 2009 at 12:44:53 PM PDT

  •  Can't go with # 5. Any and all (8+ / 0-)

    potential nominees should answer "I cannot and will not discuss a pending case".  Any other answer should exclude them.

    Otherwise, a very good selection of questions.

    They waterboarded in order to "prove" the link between 9/11 and Saddam. That is the Unified Field Theory of Evil

    by Its the Supreme Court Stupid on Fri May 01, 2009 at 12:48:39 PM PDT

    •  Agreed... (2+ / 0-)

      And while the rest could elicit interesting answers, I'd really like to hear the answer for number three. Whoever is nominated, it will be fun deconstructing the hearing.

      Is that a real poncho, or is that a Sears' poncho? - Frank Zappa

      by JoesGarage on Fri May 01, 2009 at 12:59:36 PM PDT

      [ Parent ]

    •  4&6 won't be answered. (4+ / 0-)

      7&8 will be answered by laying out current law, but without the nominee's own opinion.  And SCOTUS has (almost) nothing to do with amending the Constitution.

      Here's the question I suggested in July 2005, before John Roberts' nomination:

      During the 1990-1991 term in Payne v Tennessee, Justices O'Connor, Kennedy and Souter all voted to overturn direct Supreme Court precedents to allow victim impact testimony to come into trial.  The next term, all three refused to do the same with regard to reproductive freedom rights in the Casey decision because, in part, 'for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.'  They further wrote that about their nervousness in overturning precedent, stating that 'only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance' and therefore 'subvert the Court's legitimacy beyond any serious question'.

      In a sense, the same occurred in Dickerson v United States, in which the Court, led by Chief Justice Rehnquist, held that the Miranda decision had become such a part of our legal culture that it ought not be overturned.

      Without getting into your personal beliefs on these issues, do you believe that certain precedents are less amenable to be overturned than others because of the public's reliance upon their rules, or do you believe that any case which this Court has decided wrongly ought to be reversed?

      •  Assuming the noninee is a judge (0+ / 0-)

        Please name three cases you have ruled upon where your interpretation of the law resulted in an outcome that was very different from what you would have preferred to see as the outcome.

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Fri May 01, 2009 at 03:21:01 PM PDT

        [ Parent ]

  •  question 13, please add (1+ / 0-)
    Recommended by:
    Dave from Oregon

    will you establish a court order to bring kal penn (Dr. Kutner) back to House.

    Seriously, Obama, you screwed up my favorite show.

    Positions: Expand free trade, remove farm subsidies, balanced budgets, and expanding the death penalty.

    by sensiblecentrist on Fri May 01, 2009 at 12:55:15 PM PDT

  •  7. (1+ / 0-)
    Recommended by:
    esquimaux

    A foreigner is captured on the battlefield and brought to the U.S.('s 'beyond the reach of the law' Gitmo) for allegedly fighting against American soldiers. How do that person's rights under the Constitution differ from those of an American citizen?

    Mark Twain -Let me make the superstitions of a nation and I care not who makes its laws or its songs either.

    by Kingsmeg on Fri May 01, 2009 at 01:14:59 PM PDT

  •  How about (2+ / 0-)

    "In light of the judicial philosophy of constitutional originalism, how do you interpret the 9th amendment?"

  •  Why not just bite the bullet and ask (0+ / 0-)

    what they think of the abortion ruling of 1973 and the recent ruling on the second amendment. What is their legal view on the 4th, 10th, 14th amendments and the right for gays to marry.....lay it on the table and see what they say.  

    "We must fight their falsehood with our truth, but we must also fight falsehood in our truth." Niebuhr

    by Void Indigo on Fri May 01, 2009 at 01:18:59 PM PDT

  •  Can you imagine a senator asking such succinct (2+ / 0-)
    Recommended by:
    esquimaux, sensiblecentrist

    questions? This would force the nominee to do most of the talking.

    "80% of Republicans want Palin to lead the Republican Party and 100% of Democrats want her to lead the Republican Party." Bill Maher

    by Dave from Oregon on Fri May 01, 2009 at 01:21:29 PM PDT

  •  No. 6 is an excellent question (0+ / 0-)

    I wrote an answer to that question--an answer fueled by my limited knowledge--in a comment in a diary from a couple weeks ago:

    I was having a discussion with someone earlier about same sex marriages, and I pointed out to them that I think it's actually a pretty open-and-shut kind of issue.  It's an equal protection issue, plain and simple, isn't it?  

    The only thing that would stand in the way of an automatic application of strict scrutiny is the fact that the court has not held that homosexuals are a suspect class.  But I would argue it's patently obvious that homosexuals are a suspect class, for the following reasons:

    1.  There has been a long and well-documented history of invidious discrimination against homosexuals throughout the ages.
    1.  If we lined up 10 psychiatrists, 10 psychologists, and 10 genetics experts, I think 9 of the 10 in each of those groups would tell you two things; one, homosexuals all have one characteristic in common--they are all attracted to members of their same sex; and two, homosexuals did not choose to be homosexuals.  

    And if homosexuals did not choose to be homosexuals, then the common characteristic is immutable.

    If homosexuals have been--and continue to be--victims of invidious discrimination and they possess certain immutable charactersitics, I contend that they are indeed a suspect class, and any law which restricts their liberty should be subject to strict scrutiny.  Ergo, any restriction on same sex marriage is a violation of equal protection.  

    Again, it seems pretty open-and-shut to me.

    Ann Compton to President Obama at next presser: "Is it true that once you go black, you can never go back?" Obama: "WTF?"

    by dlh77489 on Fri May 01, 2009 at 01:42:48 PM PDT

    •  Two issues that I left off in that comment (0+ / 0-)

      Whether or not gay people are a discreet and insular minority.  I think that is a harder question to answer.

      Also, are gays able to protect themselves through the democratic process?  That's easier to answer: I would argue no.  I would argue this mainly because most estimates would say only about 10% of the population.  Ten percent of the population can be easily overwhelmed at the ballot box.

      Ann Compton to President Obama at next presser: "Is it true that once you go black, you can never go back?" Obama: "WTF?"

      by dlh77489 on Fri May 01, 2009 at 01:55:25 PM PDT

      [ Parent ]

  •  My question (0+ / 0-)

    "Of the decisions issued by the Supreme Court in the last 20 years, which is the one that you disagree with the most? State how you would have ruled, and justify this ruling on legal and philosophical grounds."

    You must be the change you wish to see in the world. - Mahatma Gandhi

    by EarlGreyHot on Fri May 01, 2009 at 01:48:24 PM PDT

  •  I also want to know about their family history (1+ / 0-)
    Recommended by:
    decafdyke

    in a health sense.  I want someone on the young side (both for a more modern attitude and longevity) and that's not a smoker, who's parents either died accidentally or are still alive and don't have Alzheimer's.  Is that intrusive, yes. Fair? no.  I don't care, we have to have some left leaning justices that stand a chance of outliving those on the right so we can see some progress.

    We're all one heartbeat away from Forever. kasandra.us

    by KS Rose on Fri May 01, 2009 at 02:04:45 PM PDT

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