I was listening to Hugh Hewitt's radio show, and he asked John Eastman (Dean of Chapman University School of Law) what kind of questions Republicans should ask of the President's nominee. Eastman responded with a question that Alan Simpson asked a nominee of Jimmy Carter to the 9th Circuit Court of Appeals some 30 years ago. His question, which I am sure I am paraphrasing, was, "If there was a conflict between the law and your personal feelings, which would you use as the basis of your decision?" The nominee's response was that he would use his own feelings. In my mind, that would be disqualifying. The job of a judge is to rule on the law, not on their own personal feelings or opinions.
A good example of this is California Supreme Court Justice Carol Corrigan. Justice Corrigan is personally in favor of same-sex marriage. In this column, by Dan Weintraub, she says that, if it were on the ballot, she would probably vote for it. Even though Justice Corrigan is personally in favor of same-sex marriage, she wrote the dissent in the California Supreme Court's 4-3 decision in 2008 that overturned the state's ban on it. I don't know what Justice Corrigan's politics are in general, or what judicial philosophy she adheres to, but when I next get a chance to vote on confirming her for another term on the court, she has my vote.
Here's another question that I would like to hear asked, "In the absence of a ratified treaty, can the decision of a foreign court be used as precedent in U.S. courts?" An answer in the affirmative on this question would again, to me, be disqualifying. Only United States law should be binding in U.S. courts. To make U.S. law subservient to the law of a foreign court would be to weaken our status as a sovereign state. An answer in the negative could prompt additional questions, such as, "under what conditions can the ruling of a foreign court be cited in an opinion?"
Another line of questioning that should be pursued, especially in light of President Obama's stated goal of a justice with "empathy," is, "What role should empathy play in the decisions of the court?" For an excellent explanation of how empathy could undermine the rule of law, please read this article by Thomas Sowell.
There is also at least a question as to whether President Obama is in favor of the courts tackling issues of economic redistribution. This being the case, any prospective nominee should be questioned on this topic as well. As the President said in the same 2001 interview where ye discussed economic redistribution, the Constitution is primarily about negative rights, things that the government cannot do. It does not speak at all about what the government must do for you. I would argue that the 10th amendment anything that must be done is one of the rights that is reserved to the people. But I am not a legal scholar, nor do I play one on TV, so please remember that there is only one thing that is free in life, and that is bad advice. Please note that I don't charge for my legal opinions.Appoint enough Supreme Court justices with "empathy" for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees "equal protection of the laws" for all Americans.
So, these are some of the questions that I would like to see asked of any prospective nominee to the Supreme Court, or to any Federal bench for that matter. Whether the nominee is a Latina woman (yes, I know that is redundant), or a Jewish man, or Asian, or Native American makes no difference to me. After a while, there have been so many "firsts" that even being the first of some group becomes a bit humdrum. I am interested, though, in other lines of questions that others might think are relevant.
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