By George F. Will
Monday, June 28, 2010; A15
Pursuant to Elena Kagan's expressed enthusiasm for confirmation hearings that feature intellectual snap, crackle and pop, here are some questions the Senate Judiciary Committee can elate her by asking:
-- Regarding campaign finance "reforms": If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?
-- If the problem is corruption, do we not already have abundant laws proscribing that?
-- If the problem is the "appearance" of corruption, how do you square the First Amendment with Congress restricting speech to regulate how things "appear" to unspecified people?
-- Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?
-- Some persons argue that our nation has a "living" Constitution; the court has spoken of "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, speaking against "changeability" and stressing "the whole antievolutionary purpose of a constitution," says "its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Is he wrong?
-- The Ninth Amendment says: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The 14th Amendment says no state may abridge "the privileges or immunities" of U.S. citizens. How should the court determine what are the "retained" rights and the "privileges or immunities"?
-- The 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people") is, as former Delaware governor Pete du Pont has said, "to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence." Were the authors of the Bill of Rights silly to include this amendment?
-- Should decisions of foreign courts, or laws enacted by foreign legislatures, have any bearing on U.S. courts' interpretations of the Constitution or federal laws (other than directly binding treaties)?
-- The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about "regulatory takings"? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property's value. But government offers no compensation because the property is not "taken." But when much of a property's value is taken away by government action, should owners be compensated?
-- In Bush v. Gore, which settled the 2000 election, seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitution's guarantee of "equal protection of the laws." Were they right?
-- In Bush v. Gore, five justices held that Article II of the Constitution gives state legislatures plenary power to set the rules for presidential elections. The Florida legislature fashioned election rules to produce presidential electors immune from challenge by Congress. But the legislature said that immunity depended on electors being chosen by a certain date, which could not be met if further recounts were to ensue. The court held that allowing more recounts would have contravened the intent of Florida's legislature. So the recounts were halted. Was the court's majority correct?
-- Justice Thurgood Marshall, for whom you clerked, said: "You do what you think is right and let the law catch up." Can you defend this approach to judging?
-- You have said: "There is no federal constitutional right to same-sex marriage." But that depends on what the meaning of "is" is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?
-- Bonus question: In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution's text would be different if the number of months in the gestation of a human infant were a prime number?
Read George Will's earlier batch of questions for Kagan.