A few 'vapid' questions for Elena Kagan
By George F. Will
Sunday, June 27, 2010
Given Elena Kagan's aversion to "vapid and hollow" confirmation hearings devoid of "legal analysis," beginning Monday she might relish answering these questions:
-- It would be naughty to ask you about litigation heading for the Supreme Court concerning this: Does Congress have the right, under its enumerated power to regulate interstate commerce, to punish the inactivity of not purchasing health insurance? So, instead answer this harmless hypothetical: If Congress decides that interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?
-- The government having decided that Chrysler's survival is an urgent national necessity, could it decide that "Cash for Clunkers" is too indirect a subsidy and instead mandate that people buy Chrysler products?
-- If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?
-- Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?
-- In Federalist 45, James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?
-- Is it constitutional for Arizona to devote state resources to enforcing federal immigration laws?
-- Is there anything novel about the Arizona law empowering police officers to act on a "reasonable suspicion" that someone encountered in the performance of the officers' duties might be in the country illegally?
-- The Fifth Amendment mandates "just compensation" when government uses its eminent domain power to take private property for "public use." In its 2005 Kelo decision, the court said government can seize property for the "public use" of transferring it to wealthier private interests who will pay more taxes to the government. Do you agree?
-- Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo the 1896 ruling in Plessy v. Ferguson that segregating the races with "separate but equal" facilities is constitutional?
-- In 1963, President John Kennedy said Congress should "make a commitment . . . to the proposition that race has no place in American life or law." Was he right?
-- In 1964, Sen. Hubert Humphrey, a principal sponsor of that year's Civil Rights Act, denounced the "nightmarish propaganda" that the law would permit preferential treatment of an individual or group because of race or racial "imbalance" in employment. What happened?
-- William Voegeli, contributing editor of the Claremont Review of Books, writes: "The astonishingly quick and complete transformation of the Civil Rights Act of 1964, from a law requiring all citizens be treated equally to a policy requiring that they be treated unequally, is one of the most audacious bait-and-switch operations in American political history." Discuss.
-- In a 2003 case affirming the constitutionality of racial preferences in law school admissions, Justice Sandra Day O'Connor said: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." If you are a sitting justice in 2028, do you expect to conclude that such preferences can no longer survive constitutional scrutiny because they no longer serve a compelling public interest?
-- The president is morose about the court's Citizens United decision holding that the First Amendment, which says Congress shall make "no law" abridging freedom of speech, means no laws abridging a corporation's freedom to speak, including nonprofit advocacy corporations such as the National Rifle Association and the Sierra Club. The court called it "censorship" for government "to command where a person may get his or her information or what distrusted source he or she may not hear." Do you agree?
-- You have noted that the court often considers legislative motives when deciding First Amendment cases. Should the court consider legislators' motives if, in response to Citizens United, they impose new burdens on corporate speech?
-- When incumbent legislators write laws restricting the quantity, content and timing of speech about legislative campaigns, are not their motives presumptively suspect?
Just wondering.
washingtonpost.com
cato-at-liberty.org
Ilya Shapiro: Ask Elena Kagan these questions
By Ilya Shapiro
Senior fellow in constitutional studies at the Cato Institute
Supreme Court nominee Elena Kagan is but a supporting actor in the drama that will unfold at her nomination hearings next week. With the political composition of the Senate, she will be confirmed.
The more interesting question is whether the hearings will elevate above the usual spate of buzzwords and gotcha games into meaningful discussion of constitutional interpretation. Indications are stronger than usual that they might.
For the first time in decades, the Constitution is a major issue in an election year. This is not because of reliably inflammatory social issues like abortion and gay marriage, but because of fresh questions in the public consciousness about the role of the federal government. After over a trillion dollars in bailouts and the hard-won Obamacare colossus, Americans are correctly asking: Are there any limits to government power anymore?
To that end, here are some lines of questioning senators should explore with Kagan:
1. Can the federal government regulate activity that is neither commerce nor crosses state lines? The Constitution's Interstate Commerce Clause says no, but the 1942 case of Wickard v. Filburn allowed the government to fine a farmer for growing too much wheat and not taking enough of it to market – because his actions, when aggregated with other farmers, could affect national wheat prices. How would Kagan have decided that case? If aggregating economic activity transforms that activity into interstate commerce, ask her to give examples of activities the government cannot regulate.
2. What can Congress force people to do under its power to regulate commerce? The government imposes three duties: register for the draft, sit on a jury and pay income tax. All are duties of citizenship tied to specific constitutional provisions that have nothing to do with the Commerce Clause. Senators can't ask about the individual health care mandate – since that issue likely will come before the court – but how about a requirement to buy spinach or join a gym?
Can Congress make any crime a federal crime? In 1946, Congress passed the Hobbs Act, which allows the federal prosecution of extortion and robbery that impedes the flow of commerce across state lines. The Act is now used to prosecute crimes having no effect on interstate commerce. In United States v. Baylor, for example, the 6th Circuit allowed the federal prosecution of a man who robbed a Cleveland-area pizzeria because the shop obtained its flour, sauce and cheese from various states outside Ohio. There are many other examples where the federal government intrudes on states' police powers.
4. Can the government rewrite leases, mortgages, and other contracts? The Depression-era Supreme Court said yes because constitutional protections for property and contract rights can be sacrificed to "protect" homeowners. More recently, the court allowed the Chrysler bankruptcy to proceed even though the government subverted the rights of the automaker's secured creditors. How would Kagan have voted in those cases?
5. What kind of protections does the Fifth Amendment's Takings Clause give to private property? In the infamous 2005 case of Kelo v. New London, that city condemned people's houses and gave them to a company that promised to use the land to create jobs and increase tax revenue. The court, in an opinion by Justice Stevens, approved this eminent domain abuse because the Fifth Amendment's "public use" requirement included the "public benefit" contemplated here. Justice O'Connor dissented: "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."
Which opinion would Kagan have joined?
Of course, Kagan will attempt to deflect these queries – or give a law professor's explanation without providing her own views (which caused Sen. Arlen Specter to vote against her nomination to be solicitor general).
But the role of a justice is different from that of the solicitor general, who merely uses existing law to argue the government's case. Moreover, as a leading scholar argued in an influential 1995 article, "the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct."
That scholar? Elena Kagan.
She continues: "The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add, and the direction in which she would move the institution."
If senators ask tough questions about the scope of government power, and Kagan refuses to answer, Kagan will have failed the Kagan standard.
ocregister.com
17 Questions I would Ask Elena Kagan
Although she will probably not answer any questions, these are some of the issues I would probe Elena Kagan with, if I were sitting on the Judiciary Committee.
2nd Amendment
1. Do you agree with the holding in District of Columbia v. Heller?
2. In District of Columbia v. Heller, Justice Scalia wrote that regulations on guns in “sensitive places” are constitutional places. Logically, if there are sensitive places, there must be non-sensitive places. What is an example of a non-sensitive place where gun regulations are not proper?
3. Regardless of what you think of the Court’s recent opinion in McDonald v. Chicago, have you had the opportunity to review the opinion by the 7th Circuit below? The 9th Circuit opinion in Nordyke v. King? If so, among those two opinions, which do you feel is a more faithful interpretation of the right to keep and bear arms as it applies to the states.
4. This term in McDonald v. Chicago, the Court considered two possible paths for incorporation of the Second Amendment – the due process clause of the 14th amendment and the privileges or immunities clause of the 14th amendment. While the majority of the justices relied on the due process clause to extend the right to keep and bear arms to the states, [Justice Thomas and/or Justice Kennedy] sought to rely on the privileges or immunities clause. While you have not yet had time to review this case, what is your understanding of the meaning of the privileges or immunities clause, and what rights do you think it protects?
4th Amendment
5. Earlier this month in Quon v. City of Ontario, the Supreme Court held that the search of a police officer’s text messages was reasonable, and therefore his Fourth Amendment rights were not violated . How do you see our right to be free from governmental searches and seizures evolving as different and new technologies progress?
5th Amendment
6. The Fourth Amendment provides that “nor shall private property be taken for public use without just compensation.” In Kelo v. City of New London, decided 5 years ago, the Supreme Court gave a very broad definition to “public use,” finding that any taking of property that stimulates financial activity would be considered a public use. Can you give me an example of a [hypothetical or real] taking that would not be a “public use”?
6th Amendment
7. In Crawford v. Washington, the Supreme Court strengthened the Sixth Amendment right for a criminal defendant to confront his accuser. Last year in Melendez-Diaz, the Court held that a lab technician who prepares a report must testify in Court, as this ”testimonial” evidence must be subject to the demands of the Confrontation Clause. In dissent in Melendez-Diaz, Justice Kennedy wrote that forcing lab technicians to testify would put significant burdens on the criminal justice system. How would you balance the constitutional right to confronting your witness with the need for a swift and efficient criminal justice system.
8th Amendment
8. In recent Eighth Amendment cases, the Court has relied on the “national consensus” model to determine whether a form of punishment is unconstitutional. In 2008, the Supreme Court decided Kennedy v. Louisiana and found that the execution of a child rapist is unconstitutional. To arrive at this result, the Court found that no other law in the United States permits such executions–but they neglected to count a recently enacted federal statute for the military that permitted such executions. This term in Graham v. Florida, the Court found that juvenile life without parole is unconstitutional. The Court made another counting mistake, however, and improperly tabulated the number of juvenile prisoners in the federal system serving a sentence of life without parole. In light of these glaring numerical errors in questions of massive constitutional significance, would you continue to endorse the national consensus model? If not, which model would you prefer? And would you consider looking to foreign and/or international law to find such consensuses?
9th Amendment
9. Do you think the Ninth Amendment protects any enforceable rights? If so, what are these rights?
10th Amendment
10. Do you think the rights reserved to the people under the Tenth Amendment place any limitations on the ability of the federal government to impose obligations on people?
11th Amendment
11. What standard would you use to determine whether Congress can abrogate a state’s sovereign immunity using the power of the Fourteenth amendment? Do you agree with the “congruent and proportional” standard endorsed in Boerne v. City of Flores?
13th Amendment
12. The Thirteenth Amendment bans “involuntary servitude.” Several scholars have written that the Thirteenth Amendment forbids the government from placing any limitations on access to abortion, in that forcing a mother to carry a child to term is a form of “involuntary servitude.” Do you think the Thirteenth Amendment places any limitations on regulating abortions?
14th Amendment
13. In Ricci v. Destefano, the Supreme Court held that the New Haven fire department violated the constitution by throwing out test results that showed african-americans performed worse on a test. While the Court decided this case on a statutory basis, in a prescient concurring opinion, Justice Scalia wrote that the doctrine of disparate impact may be in tension with the equal protection clause. Scalia wrote that the “dispute merely postpones the evil day on which the Court will have to confront the question.” You may be on the Court when the Court confronts the question. Do you think these items are in tension?
Ledbetter
14. In Ledbetter v. Goodyear Tire, the Supreme Court held that because Lilly Ledbetter filed her claims of pay discrimination too late, the statute did not permit her to recover. In a passionate dissent read by Justice Ginsburg from the bench, Ginsburg wrote that this case was a huge set back for women’s rights. For the majority, Justice Alito admitted the result did not make sense, but it was up to the legislature, and not the court to rewrite bad statutes. Shortly after President Obama was elected, Congress enacted the Lilly Ledbetter Fair Pay Act, which remedied this statutory flaw. When is it appropriate for the Court to reinterpret statutes, and when is it appropriate for the Court to wait for Congress to remedy statutes?
Stare Decisis
15. In Planned Parenthood v. Casey, the Supreme Court refused to overturn Roe v. Wade, and wrote that “liberty finds no refuge in a jurisprudence of doubt.” Stare decisis, or the reliance on previous cases creates certainty and reliance interests. Yet, most of our landmark opinions represented departures from longstanding precedents. Brown v. Board overturned Plessy v. Ferguson, finding that separate is not equal. Lawrence v. Texas overturned Bowers v. Hardwick, finding that the state cannot ban sodomy. How do you determine when the competing interests of stare decisis are to be disregarded?
16. –Followup question: In Citizens United v. FEC, which overturned a 20 year old precedent–Austin– that allowed limitations on the amount corporations could donate to advocacy advertisements, Justice Stevens wrote that “The only relevant thing that has changed since Austin and McConnell is the composition of this Court.” Do you agree that stare decisis and following precedent should have compelled the Court to uphold the constitutionality of the campaign finance laws?
Iqbal
17. Last term, the Supreme Court decided Ashcroft v. Iqbal. This case in theory made it significantly more difficult for a plaintiff to bring a suit in federal court, though early studies don’t seem to show a statistical effect. How would you balance the need to provide access to the federal courts with the need to reduce the burden on our courts, and minimize the number of frivolous law suits and litigation?
joshblackman.com
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