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
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.
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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
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
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 9th and 10th
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
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