October 13, 2020 5:29PM

Jurisprudence Questions for Judicial Nominees That Are Actually Interesting

So far, the Amy Coney Barrett confirmation hearings are proceeding in the way most people probably expected. Judge Barrett is confidently and calmly discussing her approach to judging, ably explaining past comments and decisions, and -- in accordance with the long-standing practice of prior nominees -- refusing to give commitments or comments about particular issues or cases. And the Senators are largely using the hearing to make political speeches. Democrats have mostly made policy arguments in support of the Affordable Care Act, criticized President Trump, and asked case-specific questions they knew Judge Barrett would never answer. Republicans, in turn, have asserted that religious liberty is important and asked fairly banal questions that mostly amount to "Judge Barrett, do you agree judges should interpret the law as written, or should they ignore the law and impose their own policy preferences?"

Given this state of affairs, I tend to agree with my colleague Ilya Shapiro that confirmation hearings no longer serve any valuable purpose, and they should probably be abandoned. While these hearings haven't been as bad as they could have been -- Democrats have, to their credit, mostly avoided character-driven attacks on Judge Barrett's faith -- they're not providing any useful information we didn't already know. And given the case- and issue-specific questions that dominate these hearings, I imagine they undermine judicial independence itself, by exacerbating the misperception that judges simply decide cases based on results they like.

This is unfortunate, however, because despite the caricatured nature of the questions both Republicans and Democrats tend to ask, there actually are interesting, challenging questions about judicial philosophy we could be exploring in these hearings. Judge Barrett has given a pretty standard defense of textualism, originalism, and the more general principle that judges should say what the law is, not what it should be. And Senate Democrats, by focusing nearly all their questions on policy arguments for case-specific outcomes, seem to be trying to do everything within their power to convince people that they actually do just want judges to be "super legislators," as it were.

But the reality is, at least at the level of generality that's been discussed so far, Judge Barrett's jurisprudence is typical not just for Republican nominees, but for the entire federal judiciary. It was, after all, Justice Kagan who famously said in 2015 "we're all textualists now," and who said at her confirmation hearing that, with respect to the nature of deciding cases, "it's law all the way down." Basically all judges agree the job of judging is to apply the law as it exists, not to impose their own value judgments, and basically all judges agree the words of legal texts, whether statutory or constitutional, should be interpreted as written, and given their ordinary meaning as it would have been understood by the people that passed it. While these ideas might once have been controversial in the judiciary, this just isn't where the interesting, challenging disagreements among judges actually are today.

So, it's discouraging that Democrats keep asking judicial nominees about case-specific policy issues, but it's also pretty cringey to hear Republicans talk as if judges appointed by Democrats actually embrace the idea that they should be "super legislators," or that simply being a textualist and originalist is enough to resolve difficult legal questions. As it turns out, judges can agree on abstract jurisprudential theories and nevertheless disagree on how to apply them in particular cases. Why? What explains those differences? What makes a case difficult, even for a textualist and originalist? Why are there certain areas where judicial decisions seem to overlap with political disagreements?

These are large, difficult questions, and I don't presume to have a grand unified theory answering them. But if we are going to have judicial confirmation hearings in an era of bitter partisanship, and if we expect those hearings to be at all informative, those are the sorts of questions we should be exploring.

With that framing in mind, here are twelve sets of questions I would ask judicial nominees:

1. The relationship between originalism and stare decisis is one of the most famously thorny jurisprudential puzzles. Almost no one thinks stare decisis is an absolute rule, but almost no one thinks the mere fact that a case was decided wrongly should itself be grounds for reversal. But if application of stare decisis is inherently a contextual, case-by-case, multi-factor question, does that undermine the values of objectivity and liberal legality that originalism is itself meant to ensure?

2. Descriptively, it is far more common for the Court to overrule precedent in the direction of expanding constitutional rights -- e.g., Brown v. Board, Crawford v. WashingtonCitizens United v. FECRamos v. Louisiana, Arizona v. GantLawrence v. Texas, and Janus v. AFSCME all reversed precedent to expand constitutional rights -- than in the direction of restricting constitutional rights. Is this distinction something that should, normatively, matter to judges? That is, should stare decisis be relatively weaker for precedent limiting constitutional rights and stronger for precedent protecting constitutional rights?  

3. When the constitutionality of a state or federal statute is at issue in a case, should judges start with a presumption that the statute is constitutional? If so, where does this "presumption of constitutionality" come from? Is it part of the Constitution itself, or is it an extra-constitutional choice judges make about how to decide constitutional questions? And should the strength of this presumption depend at all on the amount of effort the political branches are, in fact, expending to decide whether legislation is constitutional in the first place?

4. When it comes to many provisions of the Constitution, the Supreme Court has created elaborate doctrines for lower courts to apply in resolving cases. Is there a difference between textual interpretation and doctrinal construction? In other words, should judicial doctrines simply reflect the linguistic meaning of legal text, or is crafting doctrine a distinct enterprise from textualist/originalist interpretation?

5. Many constitutional provisions are written at a high level of generality, like "the freedom of speech" or "the equal protection of the law." If the lawmakers that passed such a provision thought a particular practice either did or did not comply with constitutional standards, to what extent is that historical judgment relevant to judicial decision-making today? Or to ask it differently, is it possible for the society of a particular time period to be "wrong" about what an abstract constitutional provision requires? Like, for example, whether the Equal Protection Clause permits racial discrimination in public schools.

6. Even assuming the meaning of constitutional text is fixed when it is enacted, is it possible for that text itself to require an assessment of something like "evolving standards of decency"? For example, the Fourth Amendment's ban on "unreasonable searches and seizures" and the Eighth Amendment's ban on "excessive bail," "excessive fines," and "cruel and unusual punishment" seem to suggest, on a purely textual basis, that the meaning of these provisions depends in part on relative social norms and conditions. How should an originalist approach this sort of constitutional language?

7. Chief Justice Roberts recently stated: "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." And yet, with regard to at least some issue areas -- like federalism limits on Congress's powers or the scope of the Second Amendment -- it seems clear that judges appointed by Republicans and Democrats tend to decide those legal questions in ways that are largely consistent with their appointing parties' policy preferences. What explains that result?

8. One of the textualist criticisms of elevating a statute's "purpose" over its plain text is the idea that legislation is usually the result of compromise between many competing political priorities. Therefore, it is not just misguided, but conceptually impossible to go outside the text of a statute to determine its purpose, because there is no single, over-arching purpose. And yet, certain constitutional doctrines require courts to decide whether laws were adopted with the intent to pursue unconstitutional objectives -- like discriminating on the basis of race. How should a judge go about evaluating whether a particular statute is adopted with an unlawful purpose?

9. When a court holds that a particular provision of a statute is unconstitutional, it has to decide whether that provision is "severable" from the rest of the statute. What source of law determines how courts should resolve these severability questions? Does it raise separation-of-powers concerns for courts to decide whether and how to effectively rewrite statutes after finding a particular provision unconstitutional?

10. Under the "political question doctrine," the Supreme Court has held that certain constitutional questions -- like political gerrymandering -- are inherently political and therefore "non-justiciable" for courts to resolve. What source of law is this doctrine based on? Is it simply an interpretation of the Constitution? Or are judges exercising discretion about what kinds of constitutional questions to decide?

11. What does it mean to say that a constitutional right is "unenumerated"? Is there a fundamental difference between rights recognized under certain broad constitutional provisions (like the right of parents to decide upon the education of their children, protected under the Due Process Clause) and other rights recognized under other broad constitutional provisions (like the right to donate to political campaigns, protected under the Free Speech Clause)?

12. To what extent should the Supreme Court take into account its institutional legitimacy in the way it decides cases? If particular cases before the Court have enormous political or policy implications for the nation, should that fact have any effect on how Justices approach the case? Does it matter whether the legal dispute itself is quite close, with strong arguments on both sides? What if the question is one in which the Court is necessarily exercising discretion, like whether to decide to hear a case in the first place?