March 7th 2005 • Printer version

Excerpts from a  modest proposal by Garrett Epps, Hollis Professor of Law, in the March 21, 2005 issue of the news magazine, The Nation.

Read the full story in The Nation

. . .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.

ONE Federal-State Relations
This Court has appointed itself the border patrol between the state and federal domains. . . 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?. . .

TWO 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 [it] the Court [?] . . .

THREE 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"? . . .

FOUR "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." . . .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?

FIVE 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?

SIX 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. . .

SEVEN 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. ß 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?

EIGHT 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?

NINE 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? . . . What kind of constitutional democracy will we be if majorities may substitute public opinion for private conscience as the determinant of individual moral choice?

TEN 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? . . .

AND FINALLY . . .
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?