The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This week, the Senate will be holding confirmation hearings for Judge Ketanji Brown Jackson, President Biden's nominee for the Supreme Court. Most of the questions senators ask during judicial confirmation hearings are mediocre, at best. All too many are just grandstanding or playing to the party's base. But conservative columnist George Will and the Washington Post editorial board have both come up with some great questions the Senate would do well to ask Judge Jackson.
Here are some excerpts from Will's column on the subject:
Article I "vested" legislative power in Congress, making Congress the mandatory location of this power. So, presumably there are some congressional grants of discretion to executive agencies that are unconstitutional delegations of legislative power. Is the separation of powers compatible with Congress's constantly giving administrative state entities vast powers to write rules regulating private conduct? Should courts or Congress decide whether Congress violates the non-delegation doctrine?…
The judicially created "qualified immunity" doctrine enables law enforcement and other government officials to avoid accountability for civil rights violations if there is no "clearly established law" forbidding what an official did. This means that even minor factual differences between the case at issue and prior cases effectively immunizes the officer from accountability. Are you open to rethinking qualified immunity?….
In 2004, the U.S. Court of Appeals for the 10th Circuit upheld an Oklahoma law forcing online casket retailers to have (expensive, time-consuming) funeral licenses. The court acknowledged that the law punished one faction (online retailers) to enrich another (funeral directors) but breezily said "dishing out special economic benefits" is "the national pastime" of state and local governments. Should there be some judicial supervision of such practices? Should courts take cognizance of obvious rent-seeking (wielding the law for private economic gain by abridging the liberty of competitors) motives?
Here are some from the Post editorial board's column:
The court's commitment to stare decisis — the principle that the court should only overturn precedent in exceptional circumstances — is increasingly in doubt. When does Judge Jackson believe it is appropriate for justices to nullify previous majorities' judgments? Originalism is ascendant on the court's conservative wing. What are Judge Jackson's views on this philosophy, and how should the court properly interpret the Framers' words?
If past confirmation hearings are any guide, Judge Jackson will strive to say little, particularly about substantive issues that the court might consider. But she should be able to address questions about the court's structure and rules. How does she feel about allowing cameras in the chamber, a long-overdue change? Some Democrats favor packing the court with more than nine justices; this is a bad idea that would hasten the court's politicization. By contrast, establishing an orderly term-limit system for justices might reduce some of the heat. The justice Judge Jackson has been tapped to replace, Stephen G. Breyer, has endorsed this change. What does she think?
I doubt most of these question (with the likely exception of the one about court-packing, which Republicans will probably bring up) will actually get asked. But we can hope.
I have a few additions of my own to Will's and the Post's lists:
1. One of the most important legal issues of our time is whether constitutional constraints that apply to other exercises of government power should also apply with the same force to immigration restrictions. The text and original meaning of the Constitution make no distinction between constitutional standards that apply to immigration and those that apply to other policies. Yet courts often read such distinctions into the Constitution, nonetheless. Do you believe immigration policy should be subject to the same level of judicial review as other federal policies, or should it get little or no scrutiny? Why?
2. Over the last two years, many lawsuits have been filed challenging restrictions on liberty enacted in response to the Covid-19 pandemic. Do you believe "public health" policies should get special deference from the judiciary, or should they get "regular" judicial review of the sort applied to other government policies?
3. Many recent cases involving allegations of unconstitutional discrimination on the basis of race, religion, and other suspect classifications have featured claims that facially neutral policies must be struck down because they were actuated by discriminatory motives. The Trump travel ban case is a famous example. But there are plenty of others, brought by litigants from both the right and the left. How should courts assess such claims? What kinds of evidence should they consider in determining whether the government acted on the basis of illegal motivations?
Question 1 is adapted from a suggestion I made as part of a symposium of proposed questions for the Barrett confirmation hearings. Sadly, it wasn't used by the Senate then. But it remains just as relevant today.