1. The Supreme Court has issued four major decisions since 9/11 invalidating the president’s and Congress’s efforts to detain and try “enemy combatants” according to procedures that depart from traditions of military justice and the rule of law. And yet since 9/11, not a single enemy combatant has been tried to judgment by military tribunal or released over executive branch objection. How will history view the Supreme Court’s decisions in this area — as a success for the principles they announced or a failure for the results they achieved? What is your view of the role of the court in ensuring the separation of powers? Has that view varied in times of national emergency?
1. Many of the questions you will be asked during the hearing will be designed to elicit your view on cases likely to come before you on the court. Over the years, nominees have handled these questions in different ways. No member of the current court responded to these questions in any detail. Is predicting the votes of potential justices a proper role for either the president or the Senate? If not, what are the factors you believe should be taken into account?
2. Even though you cannot give us your view on cases likely to come before you if you are confirmed, we nevertheless need to understand your view of the Supreme Court as an institution. Could you please tell us which justice, excluding current members of the court, you most admire, and why?
3. There was a time when the majority and the dissenters on the court went out of their way to be respectful toward each other. Even in so divisive a case as Miranda v. Arizona in 1966, the dissenters, who thought the result simply terrible, seemed to write more in sorrow than in anger. Now some members have taken to sniping at each other regularly in their opinions, particularly in the footnotes. What do you think is the cause of this trend? If confirmed, what might you do to help stop it?
— RONALD DWORKIN, a professor of law at New York University:
1. The last two nominees told the Judiciary Committee that they could decide difficult constitutional cases just by applying the law. Critics say this is silly: often the text and history of crucial constitutional clauses and the court’s past decisions aren’t decisive either way, so that judges can interpret those clauses only by asking which reading, in their opinion, is best. They must finally rely on their own political convictions in making that judgment. Do you agree with these critics?
2. You have been criticized for your vote in the New Haven firefighters case. The case raised the crucial question of whether a city or state can use race-sensitive policies, short of quotas, to reduce racial inequality and tension. Do you see any moral or constitutional objection, in principle, to such policies?
— JAMES MacGREGOR BURNS, the author of “Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court”:
1. The Constitution is “not a static but rather a living document,” Barack Obama wrote in “The Audacity of Hope,” echoing Thomas Jefferson, “and must be read in the context of an ever-changing world.” Do you agree? If so, how would you apply this idea to specific cases?
2. Do you believe that the Supreme Court has the constitutional authority to declare acts of Congress unconstitutional? Would you be in favor of a constitutional amendment establishing or rejecting once and for all the power of an unelected Supreme Court to veto acts of our elected Congress?
3. Throughout the court’s history, it has often lagged behind the times, as lifetime appointees adhered to outdated ideologies and attitudes. Would you be in favor of requiring justices to retire at the age of 70?
