Many of the most important cases the Supreme Court decides on weigh state power against individual rights: what protections criminal defendants should get; when and to what degree police officers can search, detain, use force and kill; when and how the government can exercise the power to execute people. Yet these issues rarely surface in confirmation hearings, and when they do, it’s usually in a pretty one-sided manner. During the confirmation hearings for Justice Sonia Sotomayor, for example, criminal justice issues only came up were when Democrats on the Senate Judiciary Committee went out of their way to praise her record as a prosecutor and as a judge, when she sided with the state over criminal defendants more than 90 percent of the time. Fortunately, Sotomayor arguably has since been the best Supreme Court justice on these issues since William J. Brennan Jr.
So here are 10 questions I’d ask Supreme Court nominee Brett M. Kavanaugh — questions he’d almost certainly refuse to answer.
- You’ve been described as both an originalist and a textualist: someone who believes the Constitution and the laws should be interpreted as written. Recently, another originalist/textualist judge — Judge Don R. Willett of the U.S. Court of Appeals for the 5th Circuit — wrote a blistering dissent in which he criticized the doctrine of qualified immunity. What are your thoughts on the qualified immunity the courts have given to government employees such as police officers, and the absolute immunity that courts have given to judges and prosecutors? Neither of these doctrines are proscribed by either the Constitution or black-letter U.S. law. Both were invented out of whole cloth by the Supreme Court. Both of these doctrines essentially grant “rights” to state actors, protecting them from civil liability for the harm they’ve done to citizens. If originalists view the Constitution as a social contract that lays out a few specific powers granted to the government by the people, shouldn’t both of these doctrines be eliminated?
- There’s also a movement afoot among some originalists to revive the privileges or immunities clause in the 14th Amendment, a process that could potentially bring a host of protections for unenumerated rights from abuse by state and local governments. Reviving the clause could limit government power across a wide variety of areas, from business regulations to police abuse. Most originalists agree about what the clause was intended to do, and that the Supreme Court has basically read it out of the Constitution. But when one attorney suggested it be revived during oral arguments in the case McDonald v. Chicago, then-Justice Antonin Scalia mocked him for it. Justice Clarence Thomas apparently disagreed with Scalia and later cited the argument as his reason for casting the deciding vote to strike down a Chicago gun regulation. What’s your position on the privileges or immunities clause?
- Currently, there’s a rift in the right-leaning legal community about the role judges should play when it comes to laws that don’t pass constitutional muster. On one side are disciples of Robert H. Bork, who believe that judges should largely defer to lawmakers, and that excessive oversight amounts to “judicial activism.” On the other side, the more libertarian-leaning voices say judges should aggressively strike down laws that violate the Constitution. To which side of this debate are you more sympathetic?
- One other area of disagreement among self-described originalists is the confrontation clause — the Sixth Amendment right to confront one’s accusers. Some, most notably Scalia, believed that the Sixth Amendment gives defendants the right to cross-examine forensic lab analysts in person. Others, such as Justice Samuel Alito and Chief Justice John Roberts, disagree. Given the recent revelations about the lack of scientific rigor in some forensic disciplines, and investigations that have revealed faked test results in some crime labs, this issue seems particularly important. What is your position?
- For decades, judges have essentially been the ones who decide what expertise is allowed into evidence. In the Daubert trilogy of decisions in the 1990s, the Supreme Court put its imprimatur on the practice of making judges the gatekeepers of how science is used in the courtroom. By most any measure, judges have performed poorly. To date, no judge in the country has upheld a challenge to bite-mark analysis, despite overwhelming scientific consensus discrediting the field. The Supreme Court you hope to join still refuses to put restrictions on eyewitness testimony, or to require police and prosecutors to use lineups that will ensure more accurate outcomes, despite a mountain of research showing eyewitnesses are often mistaken and easily influenced. The courts’ poor record in these area makes sense, given that judges are trained in legal analysis but not science. Do you agree that judges have done a poor job when it comes to determining the scientific validity of expert testimony? If so, what can be done about it?
- Speaking of bad information, in recent years a number of Supreme Court observers have noted that a disturbingly high percentage of opinions coming out of the court have relied on data, statistics and expert testimony that’s just plain wrong. Justice Anthony M. Kennedy’s reference in a 2003 opinion to a claim that sex offenders have a recidivism rate of 80 percent or more, for example, was not only the basis for the court’s ruling that particular case, but has since been reiterated by Justice Samuel A. Alito Jr. and more than 100 lower-court opinions, and has provided justification for laws from state legislatures across the country. It just isn’t true. In Glossip v. Gross, the court also relied on false expert testimony about lethal injection protocols. In Michigan Department of State Police v. Sitz, the court ruled to allow cops to set up roadblocks to perform sobriety checkpoints, despite acknowledging that such tactics were a violation of the Fourth Amendment. The court just determined that the public safety value was more important, but unfortunately, in undertaking that balancing test, the court relied on misleading statistics about drunken-driving fatalities. In fact, law professor and former police officer Seth Stoughton has pointed out that Supreme Court opinions on important policing issues from searches and seizures to lethal force often rely on myths and misconceptions about law enforcement. The court has long misunderstood how drug-sniffing dogs are used. And a ProPublica review of Supreme Court opinions also found a number of critical errors of fact. What should be done about cases in which we later learn that a Supreme Court decision was based on bad information? As a justice, would you push for the court to revisit those cases? What would you do personally if you later learned that one of your opinions relied on data or statistics you later learned were false or misleading? What steps do you take to make sure that doesn’t happen in the first place?
- In a similar vein, the court will increasingly hear cases involving disputes involving high finance, complicated computer technology and multiple-source DNA. These cases will require a familiarity with math, genetics, computer networks and other areas well beyond the purview of all but those who work in such fields. How do you personally prepare to hear a case that may hinge on assessing scientific evidence that’s well beyond your own area of expertise?
- In Herrera v. Collins, Scalia wrote that the Constitution does not protect an innocent person from being executed by the government — it only guarantees a fair trial. Interestingly, in a subsequent opinion, Scalia punctuated his support for the death penalty by citing a case in which the condemned man was later exonerated. Do you agree with him? Do the 163 death-row exonerations since 1973 merit consideration when adjudicating the fairness and constitutionality of the death penalty as it is currently applied?
- Do you believe that the criminal justice system is racially biased? Or, to put it another way, do you think the system treats black people the same way that it treats white people?
- One last question on forensics: Our system has struggled to fairly adjudicate cases in which expert testimony used at trial is later shown to be scientifically unreliable. Part of the problem is that after conviction, the system puts a premium on finality. Under current law, the convicted in these cases are required to file post-conviction appeals within one year after which “new evidence” could reasonably have been discovered. The problem is that there is no specific moment at which the scientific community “declares” an area of forensics (such as shaken baby syndrome or bite-mark evidence) or a particular expert to be discredited. It usually occurs over a period of years. In some cases, those convicted have waited until there’s an overwhelming consensus against the type of evidence used in their case, but courts have ruled that they should have filed after the first or second study, and have thus missed the one-year deadline. Other courts have refused claims filed that early, thus barring the convicted from raising a similar claim as more studies come out later. Do you think the one-year deadline is fair in these cases? How should the courts handle convictions in which the trial judge allowed expert testimony that was later shown to be wrong?