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Bench Memos

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Roberts in Action



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Great quote from a John Roberts’s dissent in a case issued today. The majority had reversed a trial court’s decision not to suppress evidence of a handgun found in a trunk because the court concluded that there was no probable cause to search the trunk. Roberts dissented, reasoning that where a car stopped for a non-working license plate light, that ended up having stolen tags and no registration, there might just be reason to search the trunk because maybe, just maybe, there would be some indication in the trunk that the car was stolen (something identifying the owners or the real license plates).

So it is reasonable for police to search the trunk, says Roberts, when in their past experience, they’ve found such contraband there before. The criminal defendant told the cops that the car was his girlfriend’s, which drew this line from Roberts: “Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the drivers friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.”

Another great quote same case: “I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment’s place among our most prized freedoms. But sentiments do not decide cases; facts and the law do.”

Reply to Alt



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Robert responds to me by citing the “Code of Conduct for United States Judges.” Readers who go back to the first piece of mine that I cited below will see that I pointed out two years ago that the Code is not the law of the land, but a set of strictures, all couched in “should” language (not “must”), written by judges to guide judges. It is not surprising that the judges’ cartel should wish to shelter behind such language and avoid accountability, but there is no compelling reason that senators should feel bound by it.

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The French-Fry Flapdoodle



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The most powerful ammunition the Left can muster against Judge Roberts appears to be a soggy French fry.

I have already explained how Judge Roberts’s unanimous opinion in the Hedgepeth case illustrates that he understands the role of a judge. And Beldar properly takes Slate’s Dahlia Lithwick to task for her dishonest and baseless suggestion that Roberts “seemingly finds arresting [minors] for French-fry possession to be a cornerstone in good parent-child relations.” But given the continuing silliness, like Washington Post columnist Marc Fisher’s piece yesterday, a few points may warrant emphasis:

1. Judge Roberts’s unanimous opinion affirmed the judgment of the district judge, Clinton appointee (and winner of the Thurgood Marshall Award of Excellence) Emmet Sullivan. Not surprisingly, it appears that none of Roberts’s colleagues on the D.C. Circuit called for this rather simple case to be reconsidered en banc.

2. Nothing in Roberts’s opinion can remotely be read to suggest sympathy for the zero-tolerance policy that D.C. had in place.

3. It is very amusing that advocates of expanded D.C. “home rule,” like Fisher, won’t even trust D.C. officials to establish food policies in Metro stations. The Framers had faith that Americans were fit for self-governance. Those on the Left who think judges have a roving mandate to correct every stupid law or policy plainly don’t share that faith.

Questions, Questions



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I take a stab at answering the question of what questions are appropriate to ask Supreme Court nominees in the new issue of the magazine. I’m guessing that Franck and Bradley will find more to agree with than Alt will; not sure about Levin. Alt may, however, be relieved that I do not advocate any use of hot pokers in the hearings.

Legal Philosophy Versus Legal Opinion Concerning Cases Which May Come Before the Court



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In large measure I agree with both Mark and Gerry: there are a good many questions that may be asked about judicial philosophy that, to my mind at least, are substantially more illuminating than simply asking a candidate his legal opinion concerning hypothetical cases (e.g., gay marriage and abortion) likely to come before the Court. Thus, he can be asked about how he believes the Constitution should be interpreted: is it a living document? Are you limited to the text? Should you consider original intent? Should you look to legislative history? How should (or should) public policy be considered in the deliberative process? How do you view stare decisis in the constitutional context? What is the role of the Supreme Court? For example, if a law is “unjust” but comports with the text of the Constitution, should the judge strike it down under an evolving standard? Do the other branches have a role in interpreting the Constitution? What deference should the other branches/states be given. Etc.

This will quite frankly tell everyone what they need to know. The obstructionists won’t be happy with anyone who doesn’t view the Constitution as a living wish-list of liberal policy, and the court as a super-legislature promoting the same; while the conservatives will have a good idea how he will approach “novel” legal innovations. If you really need more, questions could be asked about specific areas of the Constitution, so long as the questions themselves were sufficiently general. For example, if he were an originalist, one might ask what this methodology would mean for interpretation of the First Amendment, which has strayed so far from its original moorings. This may quickly become a “how far is too far” game, but, as Gerard points out, a nominee may be able to step the questions back to a greater level of abstraction, or if the questions go too far, beg that he can’t answer due to the canons of conduct.

The obstructionists entire game, however, will be to ask him questions and the administration for documents that they know are inappropriate. My sense is that when Schumer and Kennedy ask questions, there will be no fine determinations needed: the questions will be well on the other side of what a nominee should answer about his views on cases which are all-but-certain to come before the court.

So ask away about judicial philosophy and methodology—you’ll learn everything you need to know about how he will approach the law. But express questions about legal positions on issues like gay marriage or abortion which are likely to come before the court should not be answered based on the canons, appearance of impartiality, and prudence.

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A Filibuster By Any Other Name....



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Ed Whelan is right to be ticked at Senator’s Schumer’s questions. But he is wrong that they constitute a demand for a treatise. If that were all! No treatise writer would ever try to handle so much between just two covers. Constitutional law, history, normative, descriptive — you name it and the Senator asks about it. Seems to me that it is savvy politics on Schumer’s part: by the time John Roberts is finished answering, the 2005-6 term will be done.

What are the rules for filibustering committee hearings?

The Gall of Schumer



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So the second-most-junior Democrat on the Senate Judiciary Committee wants Judge Roberts to compose a treatise on constitutional law in the coming weeks. Schumer’s inability to show any self-restraint ought to make it easy to ignore his absurd request.

6:20



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Shannen Coffin will be on PBS’s Newshour.

Re: the case of Alt v. Franck



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Matt Franck says that a nominee should be asked questions about specific issues and even about particular decided cases. Robert Alt says not. He also says that a nominee could not answer them without violating canons of judicial conduct. (No doubt as to where Senator Schumer comes out on this one.) I do not know much about the judicial canons. But some obvious questions about interpreting them come to mind. Does prohibited “public comment” include answers elicited by Senators’ questions at confirmation hearings, where the “comments” pertain to legal principles and norms, and not to particular lawsuits? What if the nominee prefaces each answer with a caveat: “Of course, Senator, I cannot say for sure how I would rule in such a case, for that would depend upon particulars about which I now know nothing. But as to the general question of whether the unborn are ‘persons’ within the meaning of the Fourteenth Amendment (for example), I can say this, because that is a metaphysical question which does not depend upon the vagaries of litigation, any more than the question of whether black folks and white folks are all persons possessed of equal dignity depends upon the litigants”. What if a Senator asked only about opinions (and other writings) authored by the nominee? “Why did you cite Justice Scalia’s concurring opinion in that case, as opposed to the contrary assertion in the majority opinion? You distinguished that line of cases as inapposite? as undermined by later cases? What did you mean?” Should the canons be understood to mean that the nominee must censor himself here, too, if there is some chance that answering the questions will amount to “public comment” about possible litigation?

Often enough the meaning of a law is as uncertain as the judicial canons may be. In such instances — whether it be a law or a an ethical canon — a good judge will turn to the values or policies which underlie them. In this case, those values would be judicial objectivity and impartiality. These judicial virtues refer, first and foremost, to the parties and facts of particular lawsuits. Every litigant is entitled to expect that the judge in his or her case will not play personal favorites, that the parties stand equal in the court’s eyes, that the case has not been pre-judged. This part of the judicial ethic also requires that the judge not hold biases or prejudices against the ethnic or racial or religious group of which the litigant is a member. Every litigant is also entitled to a judge who has not decided (somehow) in advance of trial what the truth about contested facts is. Otherwise, the trial would be a waste. And a litigant is entitled to have the relevant law — and not the judge’s idea of what the law ought to be — applied to the case at hand.

Beyond these essential virtues lies a different sort of “pre-judgment”, if you will: the nominee’s judgments of what is sound (valid, true) thinking on larger questions of law and interpretation and morality (“equality”, “fairness” “moral turpitude” “unjust discrimination”; there are many, many more examples.) No litigant is entitled to a judge without views, even strong ones, on these matters. I think Matt Franck is focused on this terrain. I think he is right that a nominee may be asked about how the nominee would navigate it. If the nominee’s honest answer is, “I don’t know” or “I have no firm belief on that”, so be it. If the nominee’s honest answer is: “I believe that I should not say, because it might breach judicial ethics for me to answer you directly”, so be it. Of course, the money question may be whether a pattern of such answers would suffice for the conscientious Senator to withhold consent to such a nominee’s appointment.

re: Whelan’s Article



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Ed, you note that you do not believe that the Fourteenth Amendment protects unborn life. You believe, instead, that the original understanding of that amendment is compatible with either life-protective or killing-permissive legislation. It was not the purpose of your article to explain why you don’t believe that the “pro-life position” is compatible with the original understanding, so you didn’t. I’m not going to try to defend my views on the matter here, but simply register disagreement. I believe that the Fourteenth Amendment does indeed require protection for unborn human beings (although I think it’s the equal-protection clause, not the due-process clause, that is relevant here). I do not believe that the Supreme Court is authorized to require states to protect unborn human life; I believe that Congress is obligated to do it. (Here I think section five is what’s relevant).

Delay Is Futile



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Any Senate Democrats who think that delaying John Roberts’s confirmation will yield the Left any advantages ought to think again.

Because O’Connor’s resignation is effective only upon her successor’s confirmation, some on the Left might think that delaying Roberts’s confirmation by a month or two would mean that O’Connor rather than Roberts would be taking part in the decision of cases that the Court will hear in October and November. But as this article explains, it is settled practice that a justice cannot participate in the decision of a case unless he is a member of the Court when the Court’s decision is announced.

Here’s what this means in practice: Let’s assume that O’Connor were to take part in the oral arguments in October and November and that Roberts’s confirmation were to be delayed until mid-November. Because her resignation would take place in mid-November, O’Connor would not be able to take part in the final decision of any of the previously argued cases in which opinions had not yet been issued.

Only the non-controversial unanimous cases get decided within a month or so. Any remotely controversial case could be expected to take several months. Thus, delay would not benefit the Left.

If there are any closely contested cases in October or November in which Roberts’s vote would be dispositive and his confirmation is delayed, that delay would serve merely to disrupt the Court by requiring that the cases be re-argued.

In sum, delay is futile at best and unduly disruptive of the Court’s processes (and O’Connor’s retirement plans) at worst. Senate Democrats who have any interest in acting responsibly should therefore ensure that Roberts is confirmed in time to take part in, and prepare in advance for, the opening argument session on October 3, 2005.

Questioning



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I actually believe there are lots of questions that can be asked of Roberts for the purpose of discerning his judicial philosophy. He needs to familiarize himself with the relevant ethics codes, as Brother Alt makes clear. But questions about his interpretation of the commerce clause, the takings clause, and so forth are perfectly legitimate. Those of us who, dare I say, are members of the Federalist Society (unlike Roberts) hear sitting judges expound on these topics all the time. I differ with Brother Franck on whether Scalia was right in recusing from the Newdow case and think he skated too close to the line not to recuse. But even in U.S. v. Nixon, I’ve always thought it interesting that Rehnquist recused but Berger did not. Given the immense importance of these nominations, I think a fulsome but appropriate inquiry is essential without turning the process into a circus as Schumer urges.

No Higher Love



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Jon Chait today reminds me: I assume Wilkinson is out of the running for any future openings for talking.

Roberts and Abortion



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Here’s my explanation why John Roberts will not be a “pro-life” justice and why I hope that he will prove to be a genuine moderate.

Don’t Answer That Question



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Matthew believes that a candidate’s views on gay marriage are permissible, which he supports with the following question:

“Why does it become a question that we must skirt today, precisely because more people have lost their minds and believe the answer may be ‘yes’?”

As luck would have it, there is a very simple answer: because there are now lawsuits which very well may end up in the Supreme Court, and the code of conduct for U.S. judges admonishes judges to “avoid public comment on the merits of a pending or impending action.” In other words, it doesn’t matter that the Supreme Court has not granted review in the case; if it is in the appellate pipeline (that is, if it is impending), then judges should avoid comment. Contrary to Matthew’s allusion, there is no frivolousness exception. Is it pending or impending? Then you don’t talk about it, even if it was at one time, or might be considered by some today to be non-meritorious.

It seems that a number of conservatives, including several on this page, would like to put the hot pokers to Judge Roberts and force him to answer well-crafted questions designed to elicit how he would likely rule in future cases. But even asking “gross” questions may be problematic if combined with pressing questions about the candidates view of stare decisis. Thus, if a candidate says that he believes that Roe or Lawrence were wrongly decided, and then is pressed to say that he believes that stare decisis carries little weight in questions of constitutional adjudication, then the candidate has functionally been asked about how he would rule in a panoply of subsidiary cases that are pending or impending before the court. Because ethical codes are interpreted to avoid the appearance of impropriety or partiality, they can’t legitimately be circumvented by such simplistic inquisitorial legerdemain. Based on the code of conduct for judges, the law of recusal, and applying a modicum of prudence concerning public perception of judicial objectivity, these are precisely the kind of questions that Roberts should not answer.

I Almost Don’t Believe



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the Washington Post published this. Even in the Style section which has its ridiculous moments. Criticize the nominee. Goodness, write about the wife–which I think actually has unintended benefits for the country. But leave the kids alone. The little kids! A little common sense and decency, please?

More here–and some of the stuff that has been on the Internet, in some fairly prominent places (Kos, Wonkette) is really disgraceful.

RE: Questions



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I have to register my dissent from Brother Levin’s strictures about the propriety of questioning Court nominees about their views on constitutional issues. I think Justice Scalia was wrong to recuse himself from the Newdow case on the Pledge of Allegiance, as I wrote here almost two years ago, and I argued here two weeks ago that broad questions of constitutional law are directly the business of all of us in any confirmation hearing for a Supreme Court nominee. Nominees may refuse to answer any question, of course, but there is nothing wrong with making their answers to them dispositive of one’s vote as a senator on confirmation.

Recently a correspondent asked me to elaborate on how I would distinguish between proper and improper questions. Here’s what I said:

I would distinguish between gross and fine questions of constitutional meaning. Take abortion as our example. It is clearly legitimate to demand an answer regarding the rightness or wrongness of Roe v. Wade. If a nominee says he believes there it was wrongly decided, we have the answer we want, and I don’t see how he compromises his judicial integrity by answering. We would still want to know how much force he regards precedents as having if they were wrong from the start, and such questions can be properly framed too. If he says, on the other hand, that he regards Roe as correct but is unsure about the scope of the abortion right and would prefer to reserve judgment about the finer points regarding particular partial-birth abortion bans, or just what an “undue burden” is, or whether a judicial bypass is adequate in a parental-notification statute–that’s another matter, and I’d let him off the hook. But of course we would have the answer we want on the gross question regarding Roe, wouldn’t we?

Or take the cluster of issues regarding gay rights. Surely every potential nominee to the Court has an opinion about Lawrence, and we’re entitled to know it. Disagree with Lawrence? Fine, we have an answer to a gross question. Agree with Lawrence, but haven’t decided yet about various spin-off questions? Then maybe we shouldn’t press, but we know what we want to know. I think gay marriage is a similarly gross question, whatever one might think about it as a mere extension of Lawrence. Consider it this way: Just fifteen years ago or so, a question about whether the equal protection clause entitled two persons of the same sex to marry would have been considered a risible question, with “NO!” the obvious answer for everyone but a handful of fringe law professors. Why does it become a question that we must skirt today, precisely because more people have lost their minds and believe the answer may be “yes”?

The fine questions regarding pending or foreseeable cases should be avoided because they are actually hard, where the gross ones are easy. And the fine ones are hard because they involve careful judgment regarding specific fact patterns. Assume the 14th amendment incorporates the 4th, and that the exclusionary rule is a legitimate gloss thereon. Then it’s a fine question whether, when a motorist stopped at a random sobriety checkpoint is compelled to open a backpack in his trunk when a drug-sniffing dog signals for contraband, the evidence discovered therein should be suppressed. But I don’t see why a nominee can’t be asked what he thinks of the gross questions whether the 14th incorporates the 4th, and whether the exclusionary rule is a valid gloss.

And So It Begins



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Schumer press release from yesterday:

SCHUMER MEETS JUDGE ROBERTS, HANDS HIM LIST OF QUESTIONS HE WILL ASK AT JUDICIARY COMMITTEE HEARINGS

Senator’s Questions Touch Major Issues From the First Amendment to the Commerce Clause

Schumer Reaffirms Belief That Ideology and Legal Convictions Are More Important Than Personal Life In Evaluating Supreme Court Nominees

Today U.S. Senator Charles E. Schumer met with Supreme Court nominee John G. Roberts and presented him with a number of questions on his judicial philosophy ranging from the First Amendment to the Commerce Clause to the environment. Schumer, the ranking Democrat on the Judiciary Subcommittee on the Courts, re-iterated his belief that questioning judicial nominees is a duty and not a privilege, which he first suggested that a nominee’s views and philosophy should be known in an opinion piece in the New York Times in 2001.

Schumer said that he believed a court nominees’ ideology and philosophy is fair game for questioning in a Supreme Court nomination hearing. “I have long believed that federal court candidates – who serve for life – should explain their judicial philosophy and their method of legal reasoning. They should be prepared to explain their views of the Constitution, of decided cases, of federalism, and a host of other issues relevant to that lifetime post.”

Schumer said there is a difference between asking about a particular case with particular facts, but asking broad questions about particular issues is acceptable. “I have always said that one should not ask a question specifically about Enron, because there are particular facts and parties involved, but one can certainly ask a question about a nominee’s views on corporate responsibility and the proper role of the federal Government in enforcing it.”


SCHUMER’S QUESTIONS FOR JUDGE ROBERTS

1. First Amendment and Freedom of Expression:

What, if any, are the limitations on the freedoms guaranteed by the First Amendment to the Constitution?

! When can Government regulate public speech by individuals?

! When does speech cross the line between Constitutionally protected free expression and slander?

! In what ways does the First Amendment protect the spending and raising of money by individuals in politics?

! Can Government regulate hate speech? What about sexually explicit materials?

Specifically:

! Do you agree with the landmark decision in NY Times v. Sullivan (1964), which held that public criticism of public figures is acceptable unless motivated by actual malice? Who do you believe constitutes a public figure under this standard?

! Do you believe the Supreme Court was correct to strike down the Communications Decency Act in Reno v. ACLU (1997) on the grounds that pornography on the Internet is protected by the First Amendment?

! What is your view on the distinction the Supreme Court drew in Buckley v. Valeo (1976) and McConnell v. FEC (2003) between contributions and expenditures in the course of political campaigns? Do you believe that it is legitimate to construe campaign expenditures as protected speech but not donations by individuals?

2. First Amendment and the Establishment Clause:

Under the Establishment Clause, what, if any, is the appropriate role of religion in Government?

! Must the Government avoid involvement with religion as a whole, or is the prohibition just on Government involvement with any specific religion?

! Is there a difference between religious expression in Government buildings, documents, and institutions and Government spending on private, faith-based initiatives?

! What do you see as the Constitutionally protected or limited role of faith-based groups in Government-funded activity? In Government institutions?

Specifically:
! In the two cases the Supreme Court decided on the Ten Commandments recently, a display of the Commandments inside a Courthouse was found unconstitutional, while a statue of the Commandments on the grounds of a state capitol was deemed acceptable. Do you agree with the distinction the Court drew between Van Orden v. Perry and McCreary Country v. ACLU (2005)? In your view, are these decisions consistent with each other?

! What is your view of the Supreme Court’s opinion in Santa Fe Independent School District v. Doe (2000), which held that prayer in public schools is prohibited even where it is student-organized, non-denominational, and at a football game?

3. Commerce Clause:

Beginning in 1937, when it upheld the National Labor Relations Act, the Supreme Court has granted Congress great latitude in passing laws under the Commerce Clause. The Court has upheld a wide range of federal laws, including those that regulate labor standards, personal consumption of produce, racial discrimination in public accommodations, and crime. In the last ten years, however, the Supreme Court has shifted course, doing something it had not done in sixty years: striking down acts of Congress on Commerce Clause grounds.

! Do you agree with the trend towards striking down laws on this basis?

! What do you believe is the extent of Congress’s authority to legislate under the Commerce Clause?

! Can Congress regulate local trade in a product that is used nationally?

! Can Congress regulate labor standards for states and cities under its Commerce Clause power?

! How closely connected must the regulated action be to interstate commerce for Congress to have the authority to legislate?

! Where would you look for evidence that Congress is properly legislating under its Commerce Clause authority? Do you rely exclusively on the text of the legislation? Do you look at the legislative history? Do you consider the nature of the regulated activity?

! What is the extent of the limitations imposed on state regulation by the Commerce Clause?

Specifically:

! Do you agree with the Court’s decision in United States v. Lopez (1995), which struck down the Gun-Free School Zone Act because education is traditionally local? Is there any circumstance under which Congress could regulate activities in and around schools using its Commerce Clause authority?

! Do you agree that it is the Commerce Clause that allows Congress to prohibit racial discrimination in public accommodations, as the Court held in Heart of Atlanta Hotel v. United States (1964)?

4. Under what circumstances is it appropriate for the Supreme Court to overturn a well-settled precedent, upon which Americans have come to rely?

! Does your answer depend at all on the length of time that the precedent has been on the books?

! Does your answer depend at all on how widely criticized or accepted the precedent is?

! What if you agree with the result but believe the legal reasoning was seriously flawed? Does that make a difference?

! Does it matter if the precedent was 5-4 in deciding whether to overturn it? Does it matter if was a unanimous decision?

Specifically:

! Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit, overruling Nat’l League of Cities). Was the Court right to overturn its precedent nine years later? Why or why not?

! Do you agree with the 1989 decision in which the Supreme Court held that it was constitutional to execute minors (Stanford v. Kentucky), or do you agree with the later 2005 decision, which held that it was unconstitutional (Roper v. Simmons). Was the Court right to overturn its precedent 16 years later? Why or why not?

! Do you agree with the 1986 decision in which the Supreme Court held that states could criminalize private sex acts between consenting adults (Bowers v. Hardwick), or do you agree with the later 2003 decision, which held that the states could not (Lawrence v. Texas)? Was the Court right to overturn its precedent 17 years later? Why or why not?

5. Under what circumstances should the Supreme Court invalidate a law duly passed by the Congress?

! What amount of deference should the court give to Congressional action?

! Should the Court err on the side of upholding a law?

! Do certain types of laws deserve greater deference than others? Regulatory laws? Criminal laws?

! How closely tied must a law be to an enumerated right of Congress under Article I for it to be upheld?

Let me ask you about a few cases in which the Supreme Court has struck down federal laws:

! Do you agree with the Supreme Court’s decision to strike down the Gun-Free School Zones Act at issue in United States v. Lopez (1995)? Why or why not?

! Do you agree with the Supreme Court’s decision to strike down provisions of the Violence Against Women Act in United States v. Morrison (2000)? Why or why not?

6. Is there a constitutionally protected right to privacy, and if so, under what circumstances does it apply?

! The word “privacy” is not mentioned anywhere in the Constitution. In your view, does that mean it is wrong for the Supreme Court to interpret the Constitution as conferring such a right?

! Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?

Specifically:

! Do you agree with the reasoning in Griswold v. Connecticut (1965), which held that the right to privacy in the Constitution protects the right of married couples to purchase and use contraception?

! Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?

! Once the right to privacy has been found – as in Griswold and Roe – under what circumstances should the Supreme Court revisit that right?

7. What is the proper role of the federal government in enacting laws to protect the environment?

! Does the Constitution provide any instruction on how Congress should balance the interests of industry against environmental interests?

! Under the Constitution, how far can Congress go in imposing restrictions on people and businesses to protect the air and water?

! Under the Constitution, how far can the states go in enacting laws to protect the environment, and does it matter whether there is federal legislation on the same subject?

Let me put this in the context of specific cases:

! Do you believe that the Supreme Court correctly decided that the EPA has the authority to pursue industrial polluters in a state where the local authority has declined to do so, as in Alaska Department of Environmental Conservation v. EPA (2004)?

! Can the Clean Air Act preempt local emissions regulations, as the Court held in Engine Manufacturers Association v. South Coast Air Quality Management (2004)?

8. What is the proper role of the federal government in enacting laws to protect the rights of the disabled?

! Does the Constitution provide any instruction on how Congress should balance the costs to business against the government’s interest in creating equal access to facilities for disabled persons?

! Should federal laws mandating access to buildings for disabled people apply to both public and private buildings?

! For example, do you believe that the Americans with Disabilities Act requires state buildings to be accessible to the disabled, as the Supreme Court held in Tennessee v. Lane, or do you think that sovereign immunity exempts the states?

9. What is the proper Constitutional role of Government in enacting laws to regulate education?

! How far can the Government go under the Constitution to ensure equal treatment for all students?

! How far can the Court go to protect speech and/or prohibit violations of the establishment clause in the schools? For example, do you believe that Santa Fe Independent School Dist. v. Doe (2000) was decided correctly?

! Does the Constitution guarantee parents the right to choose their children’s education, as established in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)?

10. How do you define judicial activism? Give us three examples of Supreme Court cases that you consider the product of judicial activism.

! Is the “activist” label limited to more liberal-leaning judges, or can there be conservative activist judges? Can you cite any examples of conservative judicial activism?

! In cases where federal law and state law may be in conflict, who is the activist – the judge who voted to limit the federal law or the judge who limited the state law?

! Do you believe that the Supreme Court was engaging in judicial activism when it struck down provisions of the Gun-Free School Zones Act (United States v. Lopez) or the Violence Against Women Act (United States v. Morrison), both of which had been passed by Congress?

! Was the Supreme Court engaging in judicial activism in:
Brown v. Board of Education?
Miranda v. Arizona?
Dred Scott v. Sandford?
The Civil Rights Cases of 1883?
Lochner v. New York?
Furman v. Georgia?
Bush v. Gore?

! What distinguishes one case from the other?

11. Do you describe yourself as falling into any particular school of judicial philosophy?

! What is your view of “strict constructionism”?

! What is your view of the notion of “original intent”? “Original meaning”?

! How do you square the notion of respecting “original intent” with the acceptance of the institution of slavery at the time the Constitution was adopted?

12. What in your view are the limits on the scope of Congress’ power under the Equal Protection and Due Process clauses of the 14th Amendment?

! Does a law violate the Equal Protection Clause if it affects different groups differently, or must there be a discriminatory intent?

! Do you agree that, under the Equal Protection Clause, disparate impact alone does not render a law unconstitutional, as the Court held in Washington v. Davis (1976)?

! Do parents have a Due Process right to make decisions concerning the care, custody, and control of their children, as the Supreme Court held in Troxel v. Granville (2000)?

13. Where is the line between civil rights questions that are political and questions that are appropriate for a court to decide?

! Do you agree with the reasoning in Powell v. McCormack? Why or why not?

! Do you agree with the reasoning in Baker v. Carr? Why or why not?

! Do you agree with the reasoning in Bush v. Gore? Why or why not?

• What power does the Supreme Court have to intervene in state election laws (as in Bush v. Gore)?


! What role should the Supreme Court be playing in disputed elections?

14. Which Supreme Court Justice do you believe your jurisprudence most closely resembles and why?

15. When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia’s opinions, or Justice Ginsburg’s?

16. Can you identify three Supreme Court cases that have not been reversed where you are critical of the Court’s holding or reasoning and discuss the reasons for your criticism?

It IS Campaign Season



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I’m such a dork I might just order Judge Roberts wear.

David Kirkpatrick Pieces Like



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this one have got to annoy the Democratic Senate warroom. How can he be an extremist if the right-wingers are worried he’s not extremist enough for them?

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