Eight Questions for the Next SCOTUS Nominee

I'm not so concerned about whether or not the Right or the Left win on their issues; I'm concerned about proper Constitutional interpretation, judicial activism and the "presumption of liberty" vs. the "presumption of Constitutionality" when it comes to judicial review. So, from a liberty-minded perspective, here are some serious questions that should be asked of the SCOTUS nominee that replaces David Souter. (Thanks to my co-worker, Joe Henchman, for help on these.)

ONE: Currently, the Supreme Court takes less than 100 cases per year, leaving many important legal questions undecided. Would you be in favor of increasing your caseload so that many Constitutional disputes can be resolved?

TWO: In the University of Michigan affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger, it was ruled that while racial quotas could not be set, race could still be used as a factor in admissions. Then-Justice Sandra Day O’Connor said that affirmative action may not be needed in the near future. Do you think it is appropriate for the Court to determine when a policy is no longer necessary?

THREE: The issues of property rights and eminent domain have been somewhat resolved in recent times. Do you believe that Kelo v. New London was decided correctly?

FOUR: The Second Amendment has also been a topic that the Court has recently taken up. Do you believe that District of Columbia v. Heller was decided correctly?

FIVE: There is always debate over the balance between government power and individual rights. When it comes to state laws that allegedly violate individual rights, to what extent should the Court give deference to that state law?

SIX: Since the 1938 decision in United States v. Caroline Products Co., the Court has only enforced equal protection in three specific categories: enumerated rights, protection for minorities and protections in the political process. Is it proper for equal protection to be limited to these categories, and if so, are these categories permanent?

SEVEN: When it comes to Constitutional interpretation, the Court has seemed to adopt “tiers of scrutiny” in various First Amendment, equal protection and other contexts: strict scrutiny, rational scrutiny, intermediate scrutiny, etc. Is it proper for the Court to have different levels of scrutiny for different cases? If so, why?

EIGHT: The federal government influences state policy in many ways by attaching conditions to federal funding. Is there a point at which a condition would be unconstitutional, even though acceptance of funding is at the state's discretion?

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Nice Qs

These are solid, fair questions.  It weakens the post, though, to bring out the conservative canard about "judicial activism".  No matter how you define activism, from ignoring precendent when it conflicts with a justice's own views, to clearly breaking his/her own stated judicial philosophy when it would lead to a particular outcome not to the justice's political/personal liking, the conservative justices on the court are, empricially and without a doubt, more activist.  Railing against judicial activism is a dumb conservative code trotted out whenever they're pissed about any particular decision, and it cheapens this post.

I hope minority vice-chair

I hope minority vice-chair Sessions can keep him under control and on a short leash. I hope GOP JudiCom staff are doing their jobs in briefing the Senators. Adison High School

Questions 5, 7, and 8 should

Questions 5, 7, and 8 should be left out. Five and eight, because the answer will always be "it depends." Seven, because you could find it in a Constitutional law textbook in about ten seconds.

I'm not especially keen on four either. The was a very narrow case, you may as well just ask point-blank where the candidate stands on the Second Amendment rights.

Two seems phrased like a sematic problem. Courts account for the effects of a decision on public policy. When the policy rationale ceases to be compelling, they abandon it. It seems as if you're asking whether the court should consider policy at all.

 

 

 Good questions, Matt, and

 Good questions, Matt, and probably better than most that will be ask by "our side" during the confirmation hearings.  My fear is that the live TV coverage of the hearings will capture some GOP  line of questioning that will go something like this:

1.  Do you support abortion on demand?

2.  Do you support the hamasexual agenda?

3.  Do you believe that there is room for God in our classrooms?

4.  Do you believe that a frozen embryo in a fertility clinic has Constitutional rights?

5.  Do you believe that men came from monkeys?

6.  Do you believe that lewd pictures and X-rated material should be permitted on the Internet?

7.  Do you believe that a wife should be allowed to keep secrets from her husband?

8.  Do you agree that the Constitution of the United States of America should be rewritten to conform to Biblical Law?

Let's hope that your proposed line of questioning (or something similar) prevails.  

Chris L, how did you get soc-con posterboi Grassley's list???

You know, it's kind of frightening but those questions sound like they could literally usher out of the lips of the Sen Judiciary Committee member and the soc-con's posterboi --Iowa Senator Chuck Grassley... who makes unpopped corn kernels look brilliant in comparison.  Of course, RushBlow and the other talk-show idiots will have their unique opportunity to step-in for the GOP and act like they're on the SenJudiCom if Grassley doesn't do it for them.

I hope judicial activism and judical restraint and judicial constructionism are discussed in lieu of the usual PurityPolitics nonsense from the farRight whackjobs.  10-15 years ago, Judiciary Committee member Orrin Hatch (GOP Utah) would have probably asked those very questions... leading off with "So, Ms Ginsburg, do you believe the Godless Darwinists got a bum deal in the Scopes Monkey Trial in 1925?"

Grassley will press GOP credibility on judicial nominees to the max; I hope minority vice-chair Sessions can keep him under control and on a short leash.  I hope GOP JudiCom staff are doing their jobs in briefing the Senators.

The best course would be for every single GOP Senator to begin by saying that, unlike the Senate Dems under W, the Sen GOPers under Obama won't stonewall judicial appointments, won't belittle nominees, won't harass the families of the nominees and don't have much influence over who the Prez selects or the SenJudiCom approves because the Democrats are calling the shots these days.  Toss up their hands and say, "Sorry, we're in the minority".

I hope Obama nominates a farLeft ACLU free-the-terrorists type who works to take the Court to the farLeft after the next 3-4 Obama nominees get onto SCOTUS.  Maybe even a future ChJustice in this first pick?  It'd suit the country as a lasting tribute for worshiping at the altar of SmallChange & Hype last fall.

Question? Can Obama pick a non-American French or Spanish jurist to sit on our SCOTUS?  Can he get some of those anti-torture Court of the Hague types to serve? I mean, if it's ok to use European laws and reasoning to define American judicial decisions... and if Obama can break legal ethics and try to influence a Federal bankruptcy proceeding and judge... why can't he pick a true liberal French jurist... or maybe the Spanish prosecutor seeking indictments of Bush and Cheney and Rice and Rove as War Criminals?  Why can't he hold the current SCOTUS in contempt by picking the first non-American, wheelchair-ridden, Hispanic-Asian transgendered jurist with Tourettes Syndrome?

Something bold, I hope.  Something lasting.  Something that --at last-- reveals the mad con-man behind Dorothy's green drapes?  Nawh, that's hoping for too much.

I'll settle for just getting through the hearings and not making the GOP look like a group of knuckle-dragging buffoons.  Even if RushBlow and the farRight chattering class chips in their worthless 2 cents.

I once wrote a short paper

I once wrote a short paper called The Savers-Spenders Theory of Fiscal Policy based on the premise that there are two types of people: Some save and intertemporally optimize their consumption plans, while others live paycheck to paycheck, spending their entire income as soon as it's received. Sometimes readers of the paper think of the two groups as rich and poor, but that interpretation is wrong.

 

cheers,

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Your questions will be ignored

The MSM isn't going to ask any potential nominees anything embarrassing, so without an action plan to get those questions answered this post is just so much wasted bits.

However, if this site wants to actually get those questions answered, here's an action plan. Just make sure that whoever you send out to ask the questions is a lawyer and not a Village idiot.

Thank you for this

Thank you for this informative read, I really appreciate sharing this great post. Keep up your work. burs

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nedir

Celil's World

 

OBAMA

I hope Obama nominates a farLeft ACLU free-the-terrorists type who works to take the Court to the farLeft after the next 3-4 Obama nominees get onto SCOTUS.  Maybe even a future ChJustice in this first pick?  It'd suit the country as a lasting tribute for worshiping at the altar of SmallChange & Hype last fall.

 

glasskote

 

John Roberts's passage

John Roberts's passage through the Senate has, thus far, been relatively easy (despite some lingering concerns) -- and nothing is likely to change. But some Senate Republicans are already preparing for a more rigorous examination of President Bush's second nominee (the one to replace the retiring Sandra Day O'Connor), who may be announced as early as this week.

 

regards,

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others

while others live paycheck to paycheck, spending their entire income as soon as it's received. Sometimes readers of the paper think of the two groups as rich and poor, but that interpretation is wrong.

mandy

 

 

All of the eight questions

All of the eight questions raised are interesting and so are the answers in the comments.

 

 

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