15 questions for Elena Kagan

Today, Supreme Court nominee Elena Kagan began answering questions from members of the Senate Judiciary Committee. What type of queries should she anticipate? Here are 15:

1. Some observers believe that you view executive power expansively based mainly on service in President Bill Clinton’s White House. Do you have a theory of executive power? Has the “global war on terror” altered your perspectives on that authority or how the Court should treat suspected terrorists?

2. Do you have a theory of separation of powers, that Congress, the president and the courts enjoy primacy in the legislative, executive, and judicial spheres?

On Monday, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court held that Congress’s establishment of a government auditing agency for publicly-traded companies violated separation of powers because it undermined the president’s executive power.

3. Do you have a theory of federalism, the relationship between the federal government and the states? How narrowly should the Court view Congress’s Commerce Clause power?

For instance, state challenges to federal health care reform legislation argue that Congress lacks Commerce Clause power to mandate that individuals purchase health insurance.

4. Do you have a theory of constitutional interpretation? Explain the ideas of a “living constitution” and “original intent” and whether you agree with the notions. Does original intent only apply to the 1787 Constitution’s body or to subsequent amendments, especially the Fourteenth Amendment and its Due Process and Equal Protection Clauses?

5. What pertinence, if any, should international law sources have for constitutional interpretation?

Some justices invoke international law, such as the Geneva Conventions, when they decide questions, namely whether “evolving standards of decency” prevent capital punishment for mentally incompetent people because that is cruel and unusual punishment under the Eighth Amendment.

6. Do you have a theory of statutory interpretation? For example, Justice Antonin Scalia discerns legislative intent by relying exclusively on the statutory text, while Justice Stephen Breyer consults relevant legislative history, such as committee reports.

7. Some observers have criticized the Court’s Kelo decision for too broadly viewing the eminent domain power to take private property for a public purpose. They assert that the opinion violates private property rights. Do you have a theory of private property rights?

8. What are your perspectives on selective incorporation, the process by which the Court applies most Bill of Rights provisions to the states? On Monday, in McDonald v. Chicago, the Court held that the Second Amendment applies to the states.

9. Chief Justice John Roberts, in his confirmation hearing, testified that judges, like umpires, are neutral arbiters, who call balls and strikes. However, retired Justice David Souter, in his recent Harvard graduation speech, suggested the Constitution makes judges select between different views of the public good. What is your theory of judging?

10. President Obama has stated that empathy is an important quality for judges. However, Justice Sonia Sotomayor, in her confirmation hearing, disavowed the notion. What role, if any, should empathy play in judging?

11. On Monday, Senator Jeff Sessions (R) of Alabama, the panel Ranking Member, said you had “associated [your]self with well-known activist judges.” Some observers decry liberal “judicial activism,” such as the Warren Court’s expansion of accused defendants’ rights. Others criticize conservative judicial activism, such as the Citizens United opinion, which invalidated limits on corporate and union spending on political ads. Explain judicial activism and when, if ever, it is justified.

12. Some observers argue that, as dean of Harvard Law School, you barred the military from recruiting there because it discriminated against homosexuals and that you are “antimilitary.” Explain how you addressed military recruitment and whether you are antimilitary.

13. Observers lauded your attempts as dean to enhance collegiality and hire outstanding faculty, despite their political perspectives. How will these attributes serve you on the Court, whose members have diverse perspectives and often split 5-4 in hard cases?

14. If confirmed, you will be the only justice who has not been a federal appellate judge. Senator Sessions criticized your lack of judicial experience. How would you respond?

15. What are your perspectives on when the Supreme Court should overrule precedent? For instance, the 1992 Planned Parenthood v. Casey decision refused to overrule the 1973 Roe v. Wade opinion recognizing a woman’s right to choose.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.