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January 23rd, 2011

A Vapid and Hollow Charade

By Nathan Tucker

In a 1995 law review article entitled Confirmation Messes, Old and New, Supreme Court Justice Elena Kagan wrote: “The problem [with judicial confirmation hearings] is not that the Senate focused too much on a nominee’s legal views, but that it did so far too little…The kind of inquiry that would contribute most to understanding and evaluating a nomination is…[a] discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues…”

Without such a forthright and honest discussion of a nominee’s judicial philosophy, Kagan worried that contemporary confirmation hearings were becoming nothing more than a “vapid and hollow charade.”  In an interview by the Metropolitan Corporate Council published in May 2004, Kagan reiterated the need for authentic Senate confirmation hearings because “[t]he attitude and views that a person brings to the bench make a difference in how they reached those decisions, so the Senate is right to take an interest in who these people are and what they believe.”

Kagan’s criticism is as applicable to the Iowa State Nominating Commission as it is to the U.S. Senate.  The Commission, which begins four days of interviews with 60 individuals who have applied for a position on the Iowa Supreme Court, should take this opportunity to adequately question the applicants on their judicial ideology.  A resume may tell the Commission if an applicant knows the law, but the job seeker’s judicial philosophy will indicate how he or she will apply that law.

Because a job interview that covers only half of the job description can hardly be described as a job interview, Iowa Judicial Watch is asking the Commission to ask the following general questions intended to determine whether the applicants not only know the law, but the method by which they will interpret and apply it.

To ensure that an applicant can answer questions on constitutional interpretation without the possible appearance of improperly prejudging a case, the questions have been taken directly from questions asked, and answered, of U.S. Supreme Court nominees in their confirmation hearings and U.S. Senate Questionnaire.  Two of the questions were also taken from the application form used by the Delaware Nominating Commission.

  • Please discuss your views on the following criticisms involving “judicial activism.”…It has become the target of both popular and academic criticism that alleges that the judicial branch has usurped many of the prerogatives of other branches and levels of government.  Some of the characteristics of this “judicial activism” have been said to include:
  1. a tendency by the judiciary toward problem-solution rather than grievance-resolution;
  2. a tendency by the judiciary to employ the individual plaintiff as a vehicle for the imposition of far-reaching orders extending to broad classes of individuals;
  3. a tendency by the judiciary to impose broad, affirmative duties upon governments and society;
  4. a tendency by the judiciary toward loosening jurisdictional requirements such as standing and ripeness; and
  5. a tendency by the judiciary to impose itself upon other institutions in the manner of an administrator with continuing oversight responsibilities.
  • What do you believe is the best [Iowa] Supreme Court decision and why?
  • What do you believe is the worst [Iowa] Supreme Court decision and why?
  • Which current one or two Supreme Court justices do you most identify with and which ones might we expect you to be agreeing with most of the time in the event that you are confirmed?
  • Without asking you how you would rule in any particular case, what do you think of affirmative action?  Do you believe that affirmative action is a necessary part of our society to date?
  • What is an appropriate ‘‘public use’’ for condemning private property?
  • Is there a general constitutional right to privacy, and where is the right to privacy, in your opinion, found in the Constitution?
  • When the court decides to overrule a previous decision, is it important that it do so outright and in a way that is clear to everyone?
  • Do you believe that the Supreme Court overstepped their constitutional authorities when they went beyond the words of the Constitution?
  • Do you agree with [President Obama] that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided what’s in the judge’s heart?
  • And then you concluded this: ‘‘In short, I accept the proposition that difference will be made by the presence of women and people of color on the bench and that my experiences will affect the facts that I choose to see.’’ You said, ‘‘I don’t know exactly what the difference will be in my judging, but I accept that there will be some based on gender and my [racial] heritage.’’…That is the basis of concern that a lot of people have. Please take the time you need to respond to my question.
  • Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?
  • Now, legal realism. Are you familiar with that term? What does it mean, for someone who may be watching the hearing?
  • Would you be considered a strict constructionist, in your own mind?  What does ‘‘strict constructionism’’ mean to you?
  • Would you be an originalist?  What is an originalist?
  • Do you believe the Constitution is a living, breathing, evolving document?
  • Do you think judges have changed society by some of the landmark decisions in the last 40 years?
  • But a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they’re not doing it right, get rid of them through the electoral process. And a lot of us are concerned, from the left and the right, that unelected judges are very quick to change society in a way that’s disturbing. Can you understand how people may feel that way?
  • Do you believe that the Second Amendment codified a pre-existing right? Or was it a right created by the Constitution?
  • If confirmed, would you rely on your cite international foreign law when you decide cases?
  • “There are cases in which a judge carries out his role properly by ignoring the prevalent social consensus and becoming a flag bearer of new social consensus.” Or would there be some time you might find that appropriate for the Supreme Court to take a leap like that?

As then-Senator Arlen Specter (R-PA) wrote in his 2000 autobiography Passion for Truth: “In my judgment, the [Commission] should resist, if not refuse to confirm, Supreme Court nominees who refuse to answer questions on fundamental issues.”  As would any employer that is hiring, the Commission should reject any applicant that refuses to explain how he or she will actually preform their duties.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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