The following is a list of questions Sen. Charles Schumer, D-N.Y., wants a Supreme Court nominee to answer before the Senate Judiciary Committee.
1. First Amendment and Freedom of Expression:
What, if any, are the limitations on the freedoms guaranteed by the First Amendment to the Constitution?
- When can Government regulate public speech by individuals?
- When does speech cross the line between Constitutionally-protected free expression and slander?
- In what ways does the First Amendment protect the spending and raising of money by individuals in politics?
- Can Government regulate hate speech? What about sexually explicit materials?
- Do you agree with the landmark decision in NY Times v. Sullivan (1964), which held that public criticism of public figures is acceptable unless motivated by actual malice? Who do you believe constitutes a public figure under this standard?
- Do you believe the Supreme Court was correct to strike down the Communications Decency Act in Reno v. ACLU (1997) on the grounds that pornography on the Internet is protected by the First Amendment?
- What is your view on the distinction the Supreme Court drew in Republican Party v. White and McConnell v. FEC (2003) between contributions and expenditures in the course of political campaigns? Do you believe that it is legitimate to construe campaign expenditures as protected speech but not donations by individuals?
2. First Amendment and the Establishment Clause:
- Under the Establishment Clause, what, if any, is the appropriate role of religion in Government?
- Must the Government avoid involvement with religion as a whole, or is the prohibition just on Government involvement with a specific religion?
- Is there a difference between religious expression in Government buildings, documents, and institutions and Government spending on private, faith-based initiatives?
- What do you see as the Constitutionally protected or limited role of faith-based groups in Government-funded activity? In Government institutions?
- In the two cases the Supreme Court decided on the Ten Commandments recently, a display of the Commandments inside a Courthouse was found unconstitutional, while a statue of the Commandments on the grounds of a state capitol was deemed acceptable. Do you agree with the distinction the Court drew between Van Orden v. Perry and McCreary Country v. ACLU (2005)? In your view, are these decisions consistent with each other?
- What is your view of the Supreme Court's opinion in Santa Fe Independent School District v. Doe (2000), which held that prayer in public schools is prohibited even where it is student-organized, non-denominational, and at a football game?
- Do you agree that states can regulate activities at religious ceremonies, as the Supreme Court held in allowing Oregon to prohibit the use of peyote for Native American tribal ceremonies in Employment Division v. Smith (1990)?
3. Commerce Clause:
Beginning in 1937, when it upheld the National Labor Relations Act, the Supreme Court has granted Congress great latitude in passing laws under the Commerce Clause. The Court has upheld a wide range of federal laws, including those that regulate labor standards, personal consumption of produce, racial discrimination in public accommodations, and crime. In the last ten years, however, the Supreme Court has shifted course, doing something it had not done in sixty years: striking down acts of Congress on Commerce Clause grounds.
- Do you think the trend towards striking down laws on this basis is desirable?
- What do you believe is the extent of Congress’s authority to legislate under the Commerce Clause?
- Can Congress regulate local trade in a product that is used nationally?
- Can Congress regulate labor standards for states and cities under its Commerce Clause power?
- How closely connected must the regulated action be to interstate commerce for Congress to have the authority to legislate?
- Where would you look for evidence that Congress is properly legislating under its Commerce Clause authority? Do you rely exclusively on the text of the legislation? Do you look at the legislative history? Do you consider the nature of the regulated activity?
- What is the extent of the limitations imposed on state regulation by the Commerce Clause?
- Do you agree that it is the Commerce Clause that allows Congress to prohibit racial discrimination in public accommodations, as the Court held in Heart of Atlanta Hotel v. United States (1964)?
- Do you agree with the Court’s decision in United States v. Lopez (1995), which struck down the Gun-Free School Zone Act because education is traditionally local? Is there any circumstance under which Congress could regulate activities in schools using its Commerce Clause authority?
4. Under what circumstances is it appropriate for the Supreme Court to overturn a well-settled precedent, upon which Americans have come to rely?
- Does your answer depend at all on the length of time that the precedent has been on the books?
- Does your answer depend at all on how widely criticized or accepted the precedent is?
- What if you agree with the result but believe the legal reasoning was seriously flawed? Does that make a difference?
- Does it matter if the precedent was 5-4 in deciding whether to overturn it? Does it matter if was a unanimous decision?
- Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit, overruling Nat’l League of Cities). Was the Court right to overturn its precedent nine years later? Why or why not?
- Do you agree with the 1989 decision in which the Supreme Court held that it was constitutional to execute minors (Stanford v. Kentucky), or do you agree with the later 2005 decision, which held that it was unconstitutional (Roper v. Simmons). Was the Court right to overturn its precedent 16 years later? Why or why not?
- Do you agree with the 1986 decision in which the Supreme Court held that states could criminalize private sex acts between consenting adults (Bowers v. Hardwick), or do you agree with the later 2003 decision, which held that the states could not (Lawrence v. Texas)? Was the Court right to overturn its precedent 17 years later? Why or why not?
5. Under what circumstances should the Supreme Court invalidate a law duly passed by the Congress?
- What amount of deference should the court give to Congressional action?
- Should the Court err on the side of upholding a law?
- Do certain types of laws deserve greater deference than others? Regulatory laws? Criminal laws?
- How closely tied must a law be to an enumerated right of Congress under Article I for it to be upheld?
Let me ask you about a few cases in which the Supreme Court has struck down federal laws:
- Do you agree with the Supreme Court’s decision to strike down the Gun-Free School Zones Act at issue in United States v. Lopez (1995)? Why or why not?
- Do you agree with the Supreme Court’s decision to strike down provisions of the Violence Against Women Act in United States v. Morrison (2000)? Why or why not?
6. Is there a constitutionally protected right to privacy, and if so, under what circumstances does it apply?
- The word “privacy” is not mentioned anywhere in the Constitution. In your view, does that mean it is wrong for the Supreme Court to interpret the Constitution as conferring such a right?
- Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?
- Do you agree with the reasoning in Griswold v. Connecticut (1965), which held that the Constitution protects the right to privacy in the bedroom?
- Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?
- Once the right to privacy has been found – as in Griswold and Roe – under what circumstances should the Supreme Court revisit that right?
7. What is the proper role of the federal government in enacting laws to protect the environment?
- Under the Constitution, how far can Congress go in imposing restrictions on people and businesses to protect the air and water?
- How should Congress balance the interests of industry against environmental interests?
- How far can the states go in enacting laws to protect the environment, and does it matter whether there is federal legislation on the same subject?
- Let me put this in the context of a specific case: Do you believe that the Supreme Court correctly decided that the EPA has the authority to pursue industrial polluters in a state where the local authority has declined to do so, as in Alaska Department of Environmental Conservation v. EPA (2004)?
- Can the Clean Air Act preempt local emissions regulations, as the Court held in Engine Manufacturers Association v. South Coast Air Quality Management (2004)?
8. What is the proper role of the federal government in enacting laws to protect the rights of the disabled?
- How should Congress balance the costs to business against the government’s interest in creating equal access to facilities for disabled persons?
- Should federal laws mandating access to buildings for disabled people apply to both public and private buildings?
- For example, do you believe that the Americans with Disabilities Act requires state buildings to be accessible to the disabled, as the Supreme Court held in Tennessee v. Lane, or do you think that sovereign immunity exempts the states?
9. What is the proper relationship between Congress and the states in enacting laws to protect the rights of patients?
- For example, do you believe federal legislation can preempt state court laws that allow people to sue negligent insurers, as the Supreme Court held in Aetna Health Inc. v. Davila (2004)?
10. What is the proper Constitutional role of Government in enacting laws to regulate education?
- How far can the Government go under the Constitution to ensure equal treatment for all students?
- How far can the Court go to protect speech and/or prohibit violations of the establishment clause in the schools? For example, do you believe that Santa Fe Independent School Dist. v. Doe (2000) was decided correctly?
- Does the Constitution guarantee parents the right to choose their children’s education, as established in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)?
11. How do you define judicial activism? Give us three examples of Supreme Court cases that you consider the product of judicial activism.
- Is the “activist” label limited to more liberal-leaning judges, or can there be conservative activist judges? Can you cite any examples of conservative judicial activism?
- In cases where federal law and state law may be in conflict, who is the activist – the judge who voted to strike down the federal law or the judge who invalidated the state law?
- Do you believe that the Supreme Court was engaging in judicial activism when it struck down provisions of the Gun-Free School Zones Act (United States v. Lopez) or the Violence Against Women Act (United States v. Morrison), both of which had been passed by Congress?
- Was the Supreme Court engaging in judicial activism in:
Brown v. Board of Education?
Miranda v. Arizona?
Dred Scott v. Sandford?
The Civil Rights Cases of 1883?
Lochner v. New York?
Furman v. Georgia?
Bush v. Gore?
- What distinguishes one case from the other?
12. Do you describe yourself as falling into any particular school of judicial philosophy?
- What is your view of “strict constructionism”?
- What is your view of the notion of “original intent”? “Original meaning”?
- How do you square the notion of respecting “original intent” with the acceptance of the institution of slavery at the time the Constitution was adopted?
13. What in your view are the limits on the scope of Congress' power under the Equal Protection and Due Process clauses of the 14th Amendment?
- Does a law violate the Equal Protection Clause if it affects different groups differently, or must there be a discriminatory intent?
- Do parents have a Due Process right to make decisions concerning the care, custody, and control of their children, as the Supreme Court held in Troxel v. Granville (2000)?
14. Where is the line between civil rights questions that are political and questions that are appropriate for a court to decide?
- Do you agree with the reasoning in Powell v. McCormack? Why or why not?
- Do you agree with the reasoning in Baker v. Carr? Why or why not?
- Do you agree with the reasoning in Bush v. Gore? Why or why not?
What power does the Supreme Court have to intervene in state election laws (as in Bush v. Gore)?
- What role should the Supreme Court be playing in disputed elections?
15. Which Supreme Court Justice do you believe your jurisprudence most closely resembles and why?
16. When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia's opinions, or Justice Ginsburg's?
17. Can you identify three Supreme Court cases that have not been reversed where you are critical of the Court's holding or reasoning and discuss the reasons for your criticism?