Monday, January 09, 2006

30 questions for Judge Alito

Published: January 9, 2006

1. Justice Robert Jackson of the Supreme Court once famously wrote, "We are not final because we are infallible, but we are infallible only because we are final." Is the Supreme Court really either? How should that affect the way a justice carries out his role? And, reflecting on the judicial role, why do you want to be on the Supreme Court?

2. Do you think judges are at least in part responsible for the fact that, while Americans might profess reverence for the law, they often criticize the legal system? Does some of the public's criticism stem from growing use of foreign and international sources of law by some judges in interpreting the meaning of the Constitution?

3. We hear much about the important role the Supreme Court plays in interpreting and applying the Bill of Rights. But does judicial enforcement of the structural features of our Constitution - the separation of powers, federalism and the limits on Congress dictated by the enumeration of specific powers - play an important role as well in preserving liberty?

4. Justice Felix Frankfurter, whom President Franklin D. Roosevelt appointed to the Supreme Court, often invoked the principle of judicial restraint. He also was quite skeptical of rigid application of precedent, saying that reversing decisions can be justified "if rooted in the Constitution itself" and that "acquiescence in a precedent does not require approval of its extension." Was Justice Frankfurter being inconsistent? Can a believer in judicial restraint also think that sometimes precedents, even longstanding ones, should be overruled?

5. During the Lincoln-Douglas debates, Stephen Douglas attacked Abraham Lincoln for refusing to submit to the Supreme Court's affirmation of slavery after the Dred Scott case, saying, "The Constitution of the United States provides that the Supreme Court is the ultimate tribunal." Is that true, or do the other branches of the federal government - the president and Congress - have the responsibility to exercise their own judgment as to constitutional meaning where they have the constitutional power to act?

Leonard A. Leo is the executive vice president of the Federalist Society and also has advised the George W. Bush administration and Congress on judicial matters.

Published: January 9, 2006

1. You have advised the Senate that you will decide cases on the merits of the facts and the law, and not your personal views or preferences. Could you provide two examples of decisions you have rendered that were inconsistent with your personal views?

2. Given your November 2000 speech to the Federalist Society arguing that executive power is solely vested in the president, what role, if any, do you see for the Congress and the courts with respect to executive power?

3. You have told the Senate that you are open to the persuasive arguments of sound legal analysis. Can you give two examples of your judicial opinions that reflected a willingness to be persuaded to change your legal views based upon the legal arguments presented to you?

4. In light of your having been a member of a Princeton alumni group that opposed the university's admission of women, criticized its affirmative action policies and urged the admission of more alumni children, can you offer two examples of any efforts by you to promote gender or racial equality?

5. When applying for a job with the Reagan administration in the mid-1980's, you expressed disagreement with the "one person, one vote" principle embodied in the Supreme Court's decision in Reynolds v. Sims in 1964. Can you expand on the nature of your disagreement with this principle in this or other court decisions from the era involving voting districts and reapportionment?

Cheryl D. Mills, a former counsel to President Bill Clinton, is a professor at New York University Law School.

Published: January 9, 2006

1. Do you believe that the Constitution protects rights that do not appear in the text of the document itself and, if so, how do you think the Supreme Court should go about discerning the nature of those rights?

2. If you were sitting on the court in 1973 when it protected a woman's right to have an abortion in Roe v. Wade, would you have voted with the majority?

3. Under what conditions can the Supreme Court overrule its own precedents?

4. If you were sitting on the court in 1992 when it refused to overrule Roe because of its status as precedent, would you have voted with the majority?

5. Are there judicially enforceable limits on executive power in a time of national crisis, and, if so, what are they?

Kenji Yoshino, deputy dean for intellectual life at Yale Law School, is the author of the forthcoming "Covering: The Hidden Assault on Our Civil Rights."

Published: January 9, 2006

1. What is the worst example of constitutional interpretation rendered by the Supreme Court in the last 30 years?

2. Is there any reason Roe v. Wade should be entitled to greater respect as precedent than any other decision by the Supreme Court? If not, under what conditions could the Supreme Court reverse Roe?

3. Do you believe that the 9/11 attacks put the United States in a state of war with Al Qaeda and its allies?

4. Does the Constitution require that courts provide the same legal protections to gays as to racial minorities and women?

5. Does the Constitution put the Supreme Court in the position of not just an interpreter of the Constitution, but the final and supreme interpreter, whose opinions (not just decisions) must be obeyed by the president and Congress?

John Yoo, a former deputy assistant attorney general in the George W. Bush administration, is a professor of law at the University of California at Berkeley.

Published: January 9, 2006

1. Without regard to how you will rule, tell us what you foresee today as the five most important legal issues that the Supreme Court will be asked to review in the next decade. Take "important" to mean that the issues raised hold the greatest potential consequence for the daily life of the nation and the development of our laws.

2. Since law school, you have worked almost exclusively for the government of the United States, which you have served in either the Department of Justice, or the judicial branch, where you worked first as a law clerk, and now as a judge. Do you regard this as an ideal pedigree for an associate justice of the United States Supreme Court? Why have you never chosen to work in the private or nonprofit sectors or to represent individual clients, an experience shared by the majority of the lawyers who will come before you? And point to five decisions you have made that should allay the concerns of those who believe that because of your monochromatic legal experience, you will be predisposed to favor the government in legal disputes with individuals, especially in criminal cases or cases concerning individual rights.

3. Name the five most difficult decisions you have had to make as a judge, where the correct answer to the issues posed seemed most elusive to you and the stakes to the parties or the nation were the highest.

4. Assume for the sake of this question that the Supreme Court concludes in the future that Roe v. Wade was wrongly decided, and that the Constitution does not protect a woman's right to have an abortion. Without stating how you would ultimately rule, but speaking simply as a constitutional expert, is there any constitutional provision that might reasonably be thought to reserve the right to regulate abortion to the states, as some Roe opponents contend? Put another way, if Roe was reversed, what constitutional provision might prevent federal efforts to impede or outlaw abortion, like statutes making it a crime to either cross state lines to seek an abortion or place in the stream of interstate commerce any medical device or implement knowing it is likely to be used for an abortion?

5. It is anticipated that you will decline to comment on cases and questions that you could be called upon to decide as a justice. But that scruple should not apply to cases that history teaches us are in all likelihood unique. Therefore, state how you would have ruled in the case of Bush v. Gore in December 2000. Beyond the principal decision, would you have joined the court's majority on Dec. 9, 2000, in voting to issue a stay, freezing the recount that had begun in response to the order of the Florida Supreme Court? If so, explain, with citation to supporting authorities, what "irreparable harm" part of the traditional legal formula for granting a stay, might have been done if the recount had continued while the United States Supreme Court was reviewing the lower court's order?

Scott Turow, a former federal prosecutor, is the author, most recently, of "Ordinary Heroes."

Published: January 9, 2006

1. In 1944, the Supreme Court affirmed the constitutionality of the internment of American citizens of Japanese descent. Justice Felix Frankfurter wrote in a concurring opinion that an action taken in wartime "is not to be stigmatized as lawless because like action in times of peace would be lawless." He and others in the majority believed that in times of war, security interests outweigh rights that would otherwise be controlling. Do you agree or disagree, and do you think that the issues raised by this event (for which the United States later apologized) are like or unlike the issues raised by the current detention of enemy combatants?

2. In 1995, the Supreme Court ruled in Rosenberger v. Rector that the University of Virginia could not refuse to finance an avowedly Christian student publication. The court reasoned that since other student publications favoring contested viewpoints were already getting university money, denying support to this one would constitute viewpoint discrimination, a violation of the Free Expression clause of the First Amendment. Critics of this decision pointed out that its logic implicitly declared the Establishment Clause, which singles out religion for special and negative attention, to be unconstitutional. Do you agree with this criticism, and if not, why not? To what extent (if any) are the Free Exercise and Establishment Clauses in tension with one another?

3. In a famous debate half a century ago, the legal theorists H. L. A. Hart and Lon Fuller differed on the question of whether Nazi law in Germany was, in fact, law. Hart argued that morally iniquitous laws that have a valid form - laws that have emerged as the result of following legitimate procedures - are still laws, even though we might want to say that they are bad laws. Fuller contended that a legal system devoted to evil aims could not be called law because there is "a necessary relationship between substantive justice and procedural justice." With which of these theorists are you in agreement? Are law and morality finally one or can they be distinguished? Were the laws denying the vote to women in America real laws or spurious laws?

4. The right of judicial review - the right of courts to declare duly enacted laws unconstitutional - is not explicitly granted in the Constitution, but was proclaimed (some would say fabricated) by John Marshall in Marbury v. Madison. One objection to judicial review has been that it is undemocratic because the decisions of democratically elected officials are overturned by jurists who have been appointed for life and who are, therefore, unaccountable to the judgments and desires of their fellow citizens. Do you think that judicial review can be defended and justified in the face of this objection? Is the practice of judicial review a violation of the separation of powers? Are judicial review and judicial restraint reconcilable or are they antithetical?

5. Sex offenders who have served their sentences are now required to register with the state, and in some jurisdictions there is talk of incarcerating such offenders beyond the term of their sentence if it is judged that they are likely to rape and molest again. Is the judicial system moving in the direction of creating a category of second-class citizens - citizens with fewer rights than the rest of us - on the basis of a perceived "tendency" to criminal activity? Is the fictional world of Philip K. Dick's story "Minority Report"- in which people are arrested for crimes they have not yet committed - becoming a reality in the United States? What constitutional concerns are raised by these developments?

Stanley Fish, a former chairman of the English department at Duke University, is a professor of law at Florida International University.