In the wake of their election victory, Republicans are spreading the idea that judicial nominations are a presidential prerogative, much like visits to Camp David, and that the role of the Senate in the process is a ministerial one. Senate majority leader Bill Frist recently attacked Democratic opposition to Bush nominees as treason: "This filibuster is nothing less than a formula for tyranny by the minority," he said. "If this is allowed to stand, the minority will have effectively seized from the President the power to appoint judges."
Frist's ignorance of the Constitution is unfortunate. The Constitution does not grant the President the power to "appoint judges." Article II says that he may nominate, but judges are appointed only with "the Advice and Consent of the Senate." Lifetime appointments to the federal courts are the nation's business, and both the Senate and the people are expected to play a role in them.
The Republican fatuities disguise a genuine, and dangerous, confusion about what questions may properly be asked of judicial nominees. To question a judge's views on a woman's right to choose--or any other specific issue the courts must deal with--opens the questioner to the charge of imposing a litmus test. That's exaggerated, but it is true that asking about specific legal issues, or about recent or pending cases, can put a nominee in an awkward situation. The result is that judicial confirmation proceedings have come to focus much more than is healthy on alleged ethical lapses or other personal matters far from the heart of the real issue, which is the Constitution.
So I propose a parlor game that all of us--Democrats, Republicans, Independents, liberals, conservatives, moderates--can play. Let's think of questions that both should and properly could be posed to a judicial nominee by senators who worry about the wisdom of awarding him or her a lifetime seat on the Supreme Court. Let's think of questions that really tell us something we want to know--not the candidate's "compelling personal story" or his or her religious faith or the possibility of ethical lapses. Let's think of specific questions that no reasonable, sincere nominee could in good faith refuse to answer, and that are therefore most likely to lead to an actual dialogue that will educate the people about the role of the federal courts and will provide senators with actual reasons to vote for or against a nominee. Here are ten topics for questions, accompanied by some examples--a few of the hundreds that could be proposed.
1. Federal-State Relations. This Court has appointed itself the border patrol between the state and federal domains. Recent cases have suggested that Congress has only limited power to regulate matters like low-level nuclear waste or violence against women. Where is the Court's fondness for the states coming from? Only one sitting justice, Sandra Day O'Connor, has had any experience as an elected official in state politics or government. So it would be fair to ask a nominee: Have you had any practical experience in state governments, or do you have any special knowledge of how they operate? Do you think a lack of such experience would hinder you in deciding federalism cases? If you agree, what steps will you take to remedy this lack?
2. Congressional Powers. The current Court evinces a contempt for Congress--even though only one member, Justice Stephen Breyer, has any recent experience working in or with the institution. What is your view of Congress's role in the constitutional order? Do you believe it is the role of the Court to examine and dismiss legislative findings of fact? Is Congress the embodiment of popular sovereignty--or is the Court, not the elected legislature now, as Kenneth Starr recently suggested, "first among equals"? If the Court is paramount, how is that justified under the Constitution?
3. Executive Power in Wartime. Do you agree with the Bush Administration view that the President has the authority to designate any citizen an "enemy combatant" and hold him or her without counsel or judicial review? Do you agree with former Attorney General John Ashcroft that even modest review of executive detention "can put at risk the very security of our nation"? [See Ashcroft's Federalist Society speech, November 12, 2004.] Do you see any corresponding danger in an executive branch that usurps the functions of the courts?
4. "Judicial Accountability." Congress--and Justice Department officials--are systematically attempting to intimidate judges who dissent from the Administration line or issue criminal sentences that are too "lenient." Rep. Tom DeLay (who may soon change his mind about "lenient" sentences) recently formed a "Judicial Accountability Working Group" in the House, which claims to put judges on notice that "we are watching you." What is your view of judicial independence today? Is it proper for other branches to target and threaten judges with whose rulings they disagree? Would you resist this kind of attempt to manipulate and intimidate the courts--even when practiced by one of your political sponsors?
5. International Law. What are your views on Congressman Tom Feeney's "Reaffirming American Independence Resolution," which implicitly threatens impeachment of American judges who draw on international law or on the law of other countries for guidance? Do you believe--as many important jurists have throughout our history--that American law incorporates the norms to which we as a nation have agreed by treaty and otherwise? Do you agree that international human rights norms developed out of the horror of World War II and that the Holocaust should be part of the legal landscape against which our government's actions should be judged? Do you believe, as the Attorney General apparently does, that the Geneva Conventions for the protection of prisoners of war are "quaint" and optional?
6. Separation of Church and State. When you use the term "freedom of religion," or "free exercise of religion," do you refer to an individual right or to a right of the majority? Do you agree that freedom of religion focuses on the individual confronted by the power of the state and the intolerance of the majority? Or do you believe that the "free exercise" of religion protects the majority when it wishes to bring religious beliefs, prayer and the concept of the divine to solemnize and somehow sanctify the machinery of government. How do you see the First Amendment's religion clauses? Do they focus on the outsider, the heretic, the solitary conscience? Or does it empower those who proclaim "traditional" American beliefs and insist that dissenters must give them at least outward fealty?
7. Rights of Citizens. What is the proper role of federal courts in redressing harms done to citizens by state and federal governments? Are constitutional guarantees meaningful without reliable procedures to redress government's violation of them? What is your view of the scope of 42 U.S.C. § 1983, the basic statute that lets citizens sue state officials who violate their rights? How do you interpret Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, in which the Court held that the Constitution extends the same right to citizens damaged by lawless federal officials? Recent decisions have made it more difficult procedurally for citizens to use these statutes in court. How do you view these statutes and the recent trend in their interpretation?
8. Freedom of the Press. In New York Times v. United States--the "Pentagon Papers" case--a majority of the Supreme Court held that the executive could not enjoin newspapers from publishing truthful reports about government documents on the mere grounds that their publication might be embarrassing to the government. How do you view the doctrine of prior restraint? Under what circumstances may courts or executive officials muzzle the press--in wartime or otherwise?
9. Right to Privacy. In decisions on contraceptives and anti-sodomy statutes, the Court has concluded that no democratic country is truly free if its government can dictate the private sexual decisions of competent, consenting adults. Do you believe that the Constitution guarantees a right to privacy? Do you accept that sexual autonomy is an important part of any regime of ordered liberty? If so, does this autonomy extend to all adults regardless of sexual orientation? If not, what justification would there be for leaving gays and lesbians out of this guarantee? Does privacy protect a genuine right to reproductive choice? Does it protect a right to use contraception in private? If not, why not? What kind of constitutional democracy will we be if majorities may substitute public opinion for private conscience as the determinant of individual moral choice?
10. Voting Rights. The phrase "the right of citizens of the United States to vote" in federal elections (or something much like it) appears in no fewer than five places in the amended Constitution, but the document does not explicitly state that all citizens have a right to vote. Does this textual ambiguity call the right into question? Do you believe a constitutional amendment is needed to guarantee the right to vote? In your view, how important is the Voting Rights Act of 1965, and how should it be interpreted? What is the constitutional status of state laws and regulations that deliberately or negligently put obstacles in the way of citizens seeking to vote? What is the legal status of organized private conduct that seeks to intimidate citizens and prevent them from voting? What about political bodies that band together to challenge and intimidate minority voters? Should a history of voter intimidation disqualify a judicial candidate? What about a history of advising voter intimidators--which Chief Justice William Rehnquist admitted he has? What do you think of state officials who impose needlessly strict requirements on voting registrants, as those in the states of Ohio and Florida have done?
Finally, do you agree with the Court's recent statement, in an important redistricting case, Vieth v. Jubelirer, that " 'fairness' is not a judicially manageable standard"? If so, can you please tell us why any citizen would want you on our nation's highest court?