Article: Meaningful Supreme Court Nominee Questions

This President, so inexperienced in so many areas, demonstrated again his mastery of the political sphere by choosing Elena Kagan as a nominee to the Supreme Court. She has few writings by which to measure her potential judicial temperament and no judicial experience or decisions to evaluate. Apparently she is an unknown and untestable entity expected to gain a Supreme Court seat easily. How then should these hearings be focused?

One of Obama's chief aides, David Axelrod, did say in an excellent use of doublespeak that she has proven herself to be a "strong advocate" and thereby able to build consensus. Other than pointing out his obviously illogical reasoning, someone should remind Mr. Axelrod that Supreme Court Justices are not supposed to be advocates. They are supposed to apply the law evenly and without bias toward one party or the other.

Don't fall into the usual trap of reducing the discussion to personalities and inanities. Discussing whether this person is liked or disliked and placing undue focus on her upbringing challenges and early life mistakes are not particularly useful toward establishing Constitutional scholarship. Neither is noting her Harvard law school presidency or her previous Senate confirmation to be Solicitor General. These posts are different from that of a Supreme Court Justice with a life-time tenure.

Use this nomination as a teaching moment. Force the nominee to reconcile the "letter" of our unwritten Constitution with its "Spirit". Engage her in a discussion of the history and validity of the numerous legal principles, rules, and traditions, that have, over time, been the vehicles to rob the Constitution of its original meaning, intent, and weight in modern American governance. Force her to evaluate this "constitution creep" and the impact of those differences on the country.

Kagan herself agreed with this strategy 1995 when she wrote in a law review article " "The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. ... [T]he fundamental lesson of the Bork hearings [is] the essential rightness--the legitimacy and the desirability--of exploring a Supreme Court nominee's set of constitutional views and commitments."

So what are some fruitful areas to discuss with this candidate before the American people (and we'll begin with the most fundamental but most important questions a Supreme Court justice must answer):

1) Why was the Constitution written and why was the Bill of Rights added?

2) How it is that the Commerce clause has came to be so sweeping in scope and seemingly able to trump the rest of prohibitions on Congressional power, what are the strengths and weaknesses of this circumstance? What did that clause mean originally and what does it effectively mean now (especially as regards the breadth of legislative reach). What can and should be done about that and by whom?

3) What is the little known principle called the "presumption of Constitutionality" practiced by the Supreme Court? [That is, to give Congress latitude in passing horrible legislation so long as some argument can be made in it's constitutional defense.] After all in Federalist 78 , Hamilton said "If there should happen to be an irreconcilable variance between [the Constitution and a statute], ... the Constitution ought to be preferred to the statute." What should happen if Congress were to pass a major law, say a complex "comprehensive" reform measure without any indication of formal or documented discussion of it's Constitutionality? Is it appropriate in that case for the Court to extend the presumption of Constitutionality to such a statute? Why or why not? How would you surmise such a case would even come before the Court?

4) Who is your favorite Justice (past or present) both from a personal viewpoint as well as from a judicial philosophy? Why?

5) Why does the Supreme Court exercise the practice to not 'look behind' a bill to determine whether the Congress fulfilled its Constitutional responsibilities in enacting the bill? What if any impact does this shift to other branches of government?

6) Outline where the responsibility lies to insure the Constitution is followed in the Federal government for legislation, for executive branch regulations, and even for Supreme Court decisions?

7) Can Congress pass whatever they like and depend solely upon the Supreme Court to adjudicate the Constitutionality of any measure which they pass? Why or why not? What was the Founder's intent?

8) What are the historic and current meanings of the 9^th and 10^th amendments? Some believe these amendments have come to be largely ignored and are therefore ineffectual in shaping (and controlling) Federal government actions. Is this a healthy trend with respect to individual liberty of the citizen and why should it be continued or reversed? If those meanings are different how and why did that change occur? Which Constitutional amendment reflects those changes?

9) Compare and contrast the opposing judicial philosophies of "Original Intent" and that of "Legal Realism". Of which school do you most closely adhere and why?

10) Who has standing to bring a case against the Constitutionality of Congressional legislation? How does that process actually work today and how long would such a process likely take? Is this the correct remedy or a last resort action?

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