Monday, March 13, 2017

Ten Questions for Judge Gorsuch

By Eric Segall

On March 20, the Senate will begin the confirmation hearings for Judge Neil Gorsuch. Based on his meetings with a few Senate Democrats, it appears he will be reluctant, like most nominees, to answer any question relating to his specific views on already decided cases or the existing state of the law. This tradition is nonsense and needs to be changed. Although nominees to the Court should not make any pledges or promises as to how they will decide future cases, there is absolutely nothing wrong with them disclosing their views on the pressing issues of the day or on old cases. Senator Charles Schumer said it best at Chief Justice Roberts’ confirmation hearing:

“It seems strange, I think, to the American people that you can't talk about decided cases, past cases, not future cases, when you have been nominated to the most important job in the Federal judiciary…. You could do it when you worked in the Justice Department. You could do it when you worked in private practice. You could do it when you gave speeches and lectures. As a sitting judge, you have done it until very recently. You could probably do it before you just walked into this hearing room. And if you are confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room when it is more important than at any other time that the American people and we, the Senators, understand your views. Why this room should be some kind of a cone of silence is beyond me. The door outside this room does not say, ‘Check your views at the door.’”

Judge Gorsuch has had an outstanding legal career and is interviewing for a lifetime appointment to the highest Court in the land. There can be no doubt that he has already formed views on many of our most controversial constitutional (and other) questions. Any answers he gives to the questions below should of course come with the disclaimer that when faced with a real case and a specific context, he could change his mind. It is also possible, of course, that the honest response he may have to one or more of the questions is something along the lines of “I am truly torn on the issue" or "I really haven't thought about it enough to have an opinion." But he, and future nominees, should not be allowed to get away with the traditional “that case might come before me” evasion. Nor should he be allowed to get away with the typical, “well that case is settled law.” The question is whether he agrees with that settled law.

No answer he gives binds him to any future judgment. But if he wants a seat on our nation’s highest Court, the American people have a right to know where he stands. So with that in mind, here are ten questions (with possible follow ups) that he should be asked:

1) Do you believe Brown v. Board of Education correctly outlawed the separate but equal rule and, if so, based on what constitutional principle?

2) Do you believe that the holding in Griswold v. Connecticut that states may not criminalize the use of contraceptive is a correct constitutional holding? If so, based on what principle?

3) Do you believe that the “undue burden” standard for abortion laws laid down in Planned Parenthood v. Casey and reaffirmed last term by Whole Women’s Health is a correct constitutional principle? If not, what standard would you replace it with?

4) Do you believe that the Constitution requires exacting strict-scrutiny review for public colleges and universities that use racial preferences in their admissions programs? If not, what standard would you replace with it?

5) Do you believe that Congress must have a strong reason to treat different states differently as held by the Court in Shelby County v. Holder? If so, based on what constitutional text and/or history?

6) Do you believe the Heller and McDonald decisions are correct that the Second Amendment protects an individual right to own guns?

7) Do you believe vague constitutional provisions such as the Equal Protection Clause and the First Amendment should be interpreted according to the original meaning of those provisions? If so, how would you go about ascertaining that meaning?

8) Do you believe state and federal laws that discriminate on the basis of gender should be subject to rational basis, intermediate scrutiny, or strict scrutiny? If the review is stricter than normal rational basis review, why?

9) In a series of cases, the Court has indicated that competent people have a fundamental right to refuse end of life care. Do you agree with that principle?

10) Do you believe that there should be cameras in the Supreme Court?


Joe said...

Normal practice will be he might answer about Griswold and the like but more recent cases will get a "can't answer that, might come up." It's okay to think that is b.s., but it's the standard dance. Okay to push him on it, but would try to push him on his overall philosophy without trying to get him to comment on cases just decided last year.

Eric Segall said...

The elapsed time is irrelevant. He should answer questions about the current state of the law.

Joe said...

Maybe, he can also be asked about the value of having eight justices.

Anyway. It is not merely that some degree of "time elapsed" since Griswold v. Connecticut and Brown v. Board [note: what they are understood to mean today is not the same as the holdings] but that they are seen as settled enough that they are widely accepted and less likely to change. This also makes it more likely that nominees will be expected to talk about them in a more expressive way.

So, in more than one way it is not "irrelevant" in that sense though it very well might be proper to ask him questions about the "current state of the law" in general.