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:
- How would you characterize your approach to constitutional interpretation, as contrasted with that of colleagues you have worked with?
- What is the role of precedent in deciding cases, and on what grounds may a precedent be overturned?
- 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:
- 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?
- 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?
- 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?
- 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?
- 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?
- 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:
- 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?
- If you were on the Supreme Court, would you see a role for yourself interacting with the public beyond hearing cases and writing opinions?
- 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?