July 14, 2005
There's this letter floating around. Basically, a bunch of liberal law professors want judicial nominees to answer some questions. The questions are relatively interesting, to the extent they're not so broad that one cannot draft a non-gobbledygook answers to them. Sadly, the professors have not provided their own answers. As a foundational matter, one should give answers to demonstrate that a) he's asking the questions in good faith and b) that she could understand the nominee's answers.
Anyhow, the letter is embarrassingly presumptuous. Thus, I don't feel guilty providing my answers, which is also presumptuous. Caveat: Some of the questions are overbroad and poorly written. But I did my best, though I answered off the top of my head. Someone could write a law review article on each question. So, obviously, I'm painting with broad strokes.
1. Do you believe in
employing a canon of construction? If so, is there a particular canon to which you subscribe?
Answer: Well, it's written, so we should start with the words, as they meant at the time they were written. Which is what we do with other written legal instruments, e.g., wills and contracts.
Also, one cannot interpret the Constitution
except in light of federalism. Federalism, as properly understood, furthers individual liberty. The Constitution should be interpreted with
this maxim in mind: The People have two servants, not two masters.
Section 5 of the
14th Amendment should be construed broadly. The Commerce Clause should be construed broadly when Congress is
regulating commercial activities, e.g., commercial papers and securities, but
narrowly when regulating traditional state functions, e.g., torts and criminal
In practice, this
would mean that Section 5 and commercial regulations would be subject to
rational basis level of review. Congressional regulating touching non-commercial and traditional state
functions would be subject to mid-level scrutiny. Federal criminal laws that overlap with a given state criminal law would be subject to strict scrutiny, though the dual exception to the Double Jeopardy Clause would remain.
Federal criminal laws that overlap with a given state criminal law would be subject to strict scrutiny, though the dual exception to the Double Jeopardy Clause would remain.2. Do you believe it is appropriate for the Supreme Court to recognize constitutional principles that were not expressly written in the Constitution or explicitly recognized by the Framers?
Answer: The Ninth Amendment is expressly written. Other than breathing light into the Ninth Amendment, no, the Supreme Court should not "find" other rights.
3. What rights, if any, do
you believe are protected by substantive due process?
Answer: The right
to privacy applies to any consensual acts that do not harm third-parities,
undertaken in one's home. This means
that homosexual sodomy is protected under the right to privacy, as is other
forms of sexual conduct. Public
indecency would not be protected under the right to privacy since, by
definition, it would be public. States
could, if they chose, prohibit public displays of affection since, again by definition,
this would be public conduct.
not protected under the right to privacy, nor is abortion. The right to use birth control, e.g.,
contraceptives and condoms, is protected since it is intimately associated with
sexual conduct. Birth control (abortion is, most emphatically, not a method of birth control) differs from abortion because it comes before the sexual act.
Birth control (abortion is, most emphatically, not a method of birth control) differs from abortion because it comes before the sexual act.
5. Do you agree with the
tiers of review currently employed under Equal Protection jurisprudence and the way they have been
with two major exceptions. Gender-based
classifications should be subject to strict scrutiny. Currently, laws that benefit women (or harm
men) are upheld, where as laws that harm women are struck down. Equal treatment means means, well, equal
rational basis test that applies to laws impacting "politically powerless"
groups is misguided. Small interest
groups, as has been demonstrated many times, are hardly politically powerless.
6. What in your view are
the limits on the scope of Congress' power under the Commerce Clause and section 5 of the
Answer: See question No. 1. You should have also asked about the Spending
7. What do you believe is
the appropriate scope of state sovereign immunity and the Eleventh
Answer: The Eleventh
Amendment should be limited to its text. Sovereign immunity is a common law doctrine. The Constitution, as positive law, overruled
8. Define "judicial
activism" and describe your views on it.
Answer: This is a
meaningless question. "Whereof we cannot speak, let us pass over in
9. Do you believe there are
judicially enforceable limits to the President's power as Commander-in-Chief in times of national
crisis? If so, what are those limits?
Answer: Those limits are
defined in the Constitution - specifically, in the Bill of Rights. The Habeas Clause provides that the writ of
habeas corpus can be suspended in times of emergencies. If the Bill of Rights unduly burdens the
President's war-fighting ability, the Constitution should be amended with a
general Suspension Clause. That the
People are unwilling to amend the Constitution in this way illustrates nicely
that, though we're currently willing to sacrifice others for our
sake, we as a group are not willing to give the President the power to
sacrifice us. The Constitution
is not a "suicide pact," but it is also not a license to sacrifice
the rights of others for our good.
10. In Korematsu v.
United States, the Supreme Court upheld the constitutionality of evacuating Japanese-American citizens
on the West Coast from their homes during World War II. What lessons do you believe the
Court should draw from Korematsu and the World War II experience?
Answer: "War is Hell." Even political-insulation does not protect Supreme Court Justices from its heat.