Questions to ask SCOTUS nominees
These are questions that could be asked without requiring pledges of future rulings:
1. Do you believe that the due process clauses of the 5th and 14th Amendments to the U.S. Constitution includes both substantive and procedural components?
Each Due Process Clause prohibits the Federal and the various state governments from depriving a person of life, liberty or property without due process of law. Most people think of due process as precluding procedural violations such as not providing a defendant in a serious criminal case an attorney even if he/she can't afford one; not allowing confrontation or cross-examination of witnesses; or allowing a judge to preside over a case that such judge has an interest in the outcome.
Those examples illustrate the procedural component of the two Due Process Clauses. The SCOTUS has long held, however, that the Due Process Clauses also allow it to decide whether the substance of proposed legislation deprives people of life, liberty or property without due process. The argument is that enacting legislation that restricts certain "fundamental rights" violates due process.
This is the reason why the SCOTUS can strike down state legislation regarding restrictions on abortion. The analysis is that
certain regulations of abortion violates the "fundamental right" of privacy and that absent a compelling state interest, such regulation deprives a woman of liberty without due process.
Clearly if a nominee said that he/she only believed that the two Due Process Clauses only contain procedural safeguards, then such nominee would be willing to overturn Roe v. Wade, as well as other prior SCOTUS decisions.
What rights do you believe are "fundamental rights' for purpose of due process analysis?
There seems to be two competing lines of thought regarding what kind of rights are "fundamental." One line is that fundamental rights only include those rights ennumerated in the U.S. Constitution. Such rights would be freedom of religion, freedom of press, freedom of speech, and freedom of assembly.
The second line is that fundamental rights include, but are not limited to, the rights ennumerated in the Constitution. Examples of such rights include the right of privacy, right to procreate, and, apparently, the right to engage in private consensual sexual relations between two adults.
Clearly since those rights are not ennumerated in the Constitution a nominee who believes that only ennumerated rights are "fundamental" would be willing to overturn Roe v. Wade and other SCOTUS decisions.
Conclusion
These questions do not require a nominee to state expressly how such nominee would rule in deciding particular cases, but they would clearly indicate rulings a nominee might make. If a nominee says that he/she has not thought about such issues, then such nominee shoujldn't be confirmed because such nominee clearly has no comprehension of Constitutional analysis or is lying.
1. Do you believe that the due process clauses of the 5th and 14th Amendments to the U.S. Constitution includes both substantive and procedural components?
Each Due Process Clause prohibits the Federal and the various state governments from depriving a person of life, liberty or property without due process of law. Most people think of due process as precluding procedural violations such as not providing a defendant in a serious criminal case an attorney even if he/she can't afford one; not allowing confrontation or cross-examination of witnesses; or allowing a judge to preside over a case that such judge has an interest in the outcome.
Those examples illustrate the procedural component of the two Due Process Clauses. The SCOTUS has long held, however, that the Due Process Clauses also allow it to decide whether the substance of proposed legislation deprives people of life, liberty or property without due process. The argument is that enacting legislation that restricts certain "fundamental rights" violates due process.
This is the reason why the SCOTUS can strike down state legislation regarding restrictions on abortion. The analysis is that
certain regulations of abortion violates the "fundamental right" of privacy and that absent a compelling state interest, such regulation deprives a woman of liberty without due process.
Clearly if a nominee said that he/she only believed that the two Due Process Clauses only contain procedural safeguards, then such nominee would be willing to overturn Roe v. Wade, as well as other prior SCOTUS decisions.
What rights do you believe are "fundamental rights' for purpose of due process analysis?
There seems to be two competing lines of thought regarding what kind of rights are "fundamental." One line is that fundamental rights only include those rights ennumerated in the U.S. Constitution. Such rights would be freedom of religion, freedom of press, freedom of speech, and freedom of assembly.
The second line is that fundamental rights include, but are not limited to, the rights ennumerated in the Constitution. Examples of such rights include the right of privacy, right to procreate, and, apparently, the right to engage in private consensual sexual relations between two adults.
Clearly since those rights are not ennumerated in the Constitution a nominee who believes that only ennumerated rights are "fundamental" would be willing to overturn Roe v. Wade and other SCOTUS decisions.
Conclusion
These questions do not require a nominee to state expressly how such nominee would rule in deciding particular cases, but they would clearly indicate rulings a nominee might make. If a nominee says that he/she has not thought about such issues, then such nominee shoujldn't be confirmed because such nominee clearly has no comprehension of Constitutional analysis or is lying.
