Matt Moon offers eight questions that should be posed by members of the Senate Judiciary Committee when President Obama’s nominee to replace Justice David Souter is brought before them.  These questions from a liberty-minded perspective would get at the heart of how the nominee would review cases brought before him or her.

ONE: Currently, the Supreme Court takes less than 100 cases per year, leaving many important legal questions undecided. Would you be in favor of increasing your caseload so that many Constitutional disputes can be resolved?

TWO: In the University of Michigan affirmative action cases, Gratz v. Bollinger and Grutter v. Bollinger, it was ruled that while racial quotas could not be set, race could still be used as a factor in admissions. Then-Justice Sandra Day O’Connor said that affirmative action may not be needed in the near future. Do you think it is appropriate for the Court to determine when a policy is no longer necessary?

THREE: The issues of property rights and eminent domain have been somewhat resolved in recent times. Do you believe that Kelo v. New London was decided correctly?

FOUR: The Second Amendment has also been a topic that the Court has recently taken up. Do you believe that District of Columbia v. Heller was decided correctly?

FIVE: There is always debate over the balance between government power and individual rights. When it comes to state laws that allegedly violate individual rights, to what extent should the Court give deference to that state law?

SIX: Since the 1938 decision in United States v. Caroline Products Co., the Court has only enforced equal protection in three specific categories: enumerated rights, protection for minorities and protections in the political process. Is it proper for equal protection to be limited to these categories, and if so, are these categories permanent?

SEVEN: When it comes to Constitutional interpretation, the Court has seemed to adopt “tiers of scrutiny” in various First Amendment, equal protection and other contexts: strict scrutiny, rational scrutiny, intermediate scrutiny, etc. Is it proper for the Court to have different levels of scrutiny for different cases? If so, why?

EIGHT: The federal government influences state policy in many ways by attaching conditions to federal funding. Is there a point at which a condition would be unconstitutional, even though acceptance of funding is at the state’s discretion?

How likely will it be that any of these will be asked?

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  1. With the exception of three and four which seem to be a clear “see if they agree with me” test, I think this is an excellent list of questions, particularly because they are open ended and assess the nominee's general philosophy of government and how the court should work. They remind me of the old interview questions at Microsoft that asked “How are M&M's made.” While it was irrelevant to a software company whether the applicant knew about chocolate, the question tested their ability to solve problems and think on their feet without directly referencing their knowledge or views on software. Similarly, these six questions, if asked, would assess his/her readiness to serve and philosophy of service without merely asking for a pre-decided response on hot-button issues.

    Sadly, I don't think legislators on either side of the aisle will ask these sort of questions. Instead, they'll merely see if the nominee lines up with their political ideology and wants to decide cases their way.

    An additional note about question one. I'm not sure that more than 100 important constitutional cases can be decided well in a year. Since almost all set precedents for later cases, increasing the workload may lead to less thought-out verdicts or more hastily written opinions which would have a negative effect on later court cases.

  2. In order for the Court to increase it's workload 4 members would have to be added so that there would be 1 SCOTUS jurist over each Circuit Court of Appeals. As it is now Justice Souter covers both the 1st Circuit and the 3rd Circuit. Justice Stevens covers the 6th Circuit and the 7th Circuit. Chief Justice Roberts covers the 4th Circuit, the DC Circuit and the Federal Circuit. There are 13 Circuits in all. Up until the Civil War each Circuit had 1 Supreme Court Justice assigned to it. At that time there were 10 Circuits and 10 Supreme Court Justices.

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