In light of post-Bork Supreme Court nominees’ general reticence about their views on precedent, their personal and political beliefs, and hypothetical cases, senators asking Judge Kavanaugh questions about his agreement with precedent will likely be relatively fruitless (though they should note that despite invocations of the “Ginsburg rule,” then-Judge Ginsburg was quite candid about her views on abortion politics, thus limiting nominees’ ability to rely on it to deflect). While we can make conjectures about his views on Roe v. Wade and Planned Parenthood v. Casey based on his being on the Federalist Society list, asking him about Roe might not be that illuminative. However, in a number of cases, the Supreme Court has laid out quite vague standards that would allow judges to reach quite different interpretations of their proper application. Thus, I have proposed below the following questions for members of the Senate to ask Judge Kavanaugh, which seek to highlight his interpretation of the scope of existing precedents, how he reached prior decisions, the authorities that he consults in reaching decisions and the balancing of competing rights, and seeking clarification on controversial remarks that he has made:
1) While Roe v. Wade is the central abortion law holding on which many focus, Planned Parenthood v. Casey is the holding according to which we now judge the constitutionality of states' restrictions on abortion access. What is your understanding of what constitutes an undue burden or a substantial obstacle within the meaning of Casey? How do you feel that Casey compels justices to identify whether abortion restrictions are motivated by health and safety or by efforts to dissuade abortions? How do you interpret this Supreme Court precedent as clarifying how the state balances its interest in life and potential life?
2) While the Burwell v. Hobby Lobby holding was technically in regards to closely-held corporations' ability to exercise religious freedom in their decisions regarding health coverage for employees under the ACA, it affirmed notions of corporate personhood as also laid out in Citizens United, and expanded the 1st Amendment protections afforded at least some corporations. Indeed, Justice Ginsburg, in her dissent in Hobby Lobby, wrote that there as "little doubt that RFRA claims will proliferate, for the Court's expansive notion of corporate personhood -- combined with its other errors in construing RFRA -- invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith." How limited in scope do you see this holding as extending? That is, to what extend do you view it as laying the groundwork for more corporations to claim religious exemptions, and how (if at all) as a judge would you ascertain the sincerity of religious beliefs espoused by those in corporations?
3) In a speech at the American Enterprise Institute, you appealed to Justice Rehnquist’s dissent in Roe v. Wade, and in doing so criticized the majority’s creation of unenumerated rights. You said, “Rehnquist’s dissenting opinion did not suggest that the Constitution protected no rights other than those enumerated in the text of the Bill of Rights. But he stated that under the court’s precedents, any such unenumerated right had to be rooted in the traditions and conscience of our people,” and that while Justice Rehnquist’s view was in the dissent rather than the majority, “he was successful in stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.” Given the precedents of Griswold and Roe, as well as the broader notions of privacy that have been upheld by the Court, how would you define the proper extent of unenumerated rights, and on what authorities would you rely in ascertaining whether a right is consistent with enumerated rights, and what falls outside the scope of judicial power to assert?
4) In the context of privacy decisions under the 4th Amendment, under what conditions do you interpret the Supreme Court as calling for a "reasonable suspicion" as opposed to a "probable cause" threshold for a search, and how according to cases such as Pottawatomie v. Earls, would you identify what exactly would be grounds for "reasonable suspicion"?
5) It is not uncommon for the interest of privacy and liberty more generally to be weighed against the interest of public safety and national security. How do you view these competing interests, and how do you interpret the Supreme Court precedent as balancing these when they're in tension? What evidence of a security threat do you see as sufficient to justify intrusions on individual liberty, and to what sources would you turn to identify this?
6) You dissented in National Federation of Federal Employees v. Vilsack, a case on whether the Fourth Amendment permitted random drug testing for Forest Service Job Corps Center employees, and whether the non-law-enforcement public-safety interest in a drug-free environment outweighed the interest in guarding against privacy invasions of a random drug test. The majority found that the program was impermissible under the Fourth Amendment because there hadn’t been evidence of drug problems among the staff, suggesting that it was “a solution in search of a problem,” and that the program was overly broad in its application. I have two questions about your view on this case:
a) In your dissent, you viewed the drug testing program as being clearly reasonable and constitutionally permissible, holding that it “would seem negligent not to test” employees for drugs given the history of drug use among the at-risk students participating in the program. How do you assess a compelling state interest in combatting drug use when there is no evidence that this is a problem among the staff? When you consider compelling state interest, is it based on evidence of an existing problem, or is a more theoretical issue that the government has an interest in avoiding enabling?
b) You also viewed the drug test as being nonintrusive since it was only the provision of a urine sample. Are there more invasive oversight measures (such as blood tests or the submission of medical histories) that you would not have viewed as permissible even in light of the government’s interest in a drug-free environment?
7) In Klayman v. Obama, you decided on the National Security Agency’s Section 215 call-records program, which in your concurrence you found to be “entirely consistent with the Fourth Amendment.” How do you view this opinion now in light of the June 2018 decision of Carpenter v. United States?
8) You have been critical of Thomas Jefferson’s arguments about a strict wall of separation between church and state. How high do you view the proper separation of church and state, and how do you understand the Supreme Court precedents and history as shaping determinations as to what is a breach of this separation?
9) In the context of the Establishment Clause and the Lemon Test from Lemon v. Kurtzman (1971), the Court has held that laws are in violation of the Establishment Clause unless they 1) have a primary secular purpose, 2) have a primary secular effect, and 3) do not cause undue government entanglement in religion. You have said that application of the Lemon Test “can sometimes be counterproductive or even harmful.” Please discuss what your specific concerns are about it, and what your preferred approach to Establishment Clause cases would be.
10) Setting aside your view of the merits of keeping in place the Lemon Test and focusing instead on your understanding of its proper application, how do you understand the Court as having defined "undue government" entanglement in religious beliefs? To what sources do you believe it is legitimate to look in order to ascertain the secular vs. non-secular purpose of a policy? Do you look to facial neutrality, do you look at sources beyond the text, etc? How much evidence of someone’s personal history and comments do you feel would satisfy the qualification of being religiously-motivated?
* This is especially important in light of Justice Roberts's opinion in Trump v. Hawaii, which held that a facially neutral executive order could be treated as not constituting a non-secular purpose in large part because the religiously-motivated statements were from sources such as tweets, campaign statements, rallies, etc., as opposed to official government documents. So, if there is a policy with several statements indicating an underlying motivation of bias, should such statements enter into consideration by the Court, or should a more textual reading be applied?
11) You served as co-chairman of the Federalist Society’s “School Choice Practice Group,” and you worked on school choice litigation in Florida. One of the concerns about vouchers is that while promoting flexibility in allowing children to have more education options, they allow tax dollars to go to schools that may be non-secular, with the vouchers more likely to be used for religious schooling, which is less expensive. While the Supreme Court upheld their constitutionality in Zelman v. Simmons-Harris (2002), it was a contentious 5-4 decision and this remains a highly salient issue. Can you please discuss the evidence that you saw for their legitimacy taking into account both the state’s compelling interest in education quality, as well as the empirical fact that the vast majority participating in these program choose religious schools. When you look at data such as the differences in tuition for secular and non-secular schools and the rates of using vouchers for secular and non-secular schools, how do you evaluate the extent to which there is a true private choice?
12) A number of Supreme Court decisions have upheld the constitutionality of affirmative action, conditional upon those policies not being administered through the use of quotas, but rather as part of a broader acknowledgement that race is one of many factors contributing to education diversity, and for which there is a compelling state interest (Grutter v. Bollinger, Fisher v. UT Austin). How should the Supreme Court balance affirmative action precedents that have been reaffirmed, against the (elected) executive branch rescission of affirmative action guidance?
13) You predicted decades ago that the Supreme Court would embrace a color-blind view of the constitution, an approach that would undue much settled precedent regarding the consideration of race in admissions. You have also said, “This case is one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of the government.” Please elaborate on your remark about enforcing a color-blind constitution, and to what extent (if at all) you consider the extent to which racial diversity would likely decline in the event of these programs’ termination.
14) In 2013 in Shelby County v. Holder, the Supreme Court controversially struck down a portion of the Voting Rights Act that required preclearance. In the immediate aftermath of the holding, several states enacted restrictions on voting laws, such as onerous voter ID requirements and limits on early voting. In his majority Chief Justice Roberts cited the limited evidence of ongoing intrusions into voting rights in the affected parts of the country, though in her dissent, Justice Ginsburg compared the decision to throwing away one's umbrella in a rainstorm because one is getting wet. One tension that we have in this country is a recognition of certain fundamental rights on which the government can only in very rare cases infringe, as well as a system of federalism according to which states often have some measure of autonomy in implementation. How would you evaluate whether legislation that imposes requirements on states is still required to be in full effect in order to safeguard rights, especially fundamental rights such as voting?
15) You wrote an opinion that upheld South Carolina's strict voter ID law. You argued in your holding that the South Carolina law did not have a "discriminatory and retrogressive effect," and that the purpose was not discriminatory. You additionally cited a precedent that legislators' knowledge of the law's potential disproportionate impact does not alone equate to a discriminatory purpose. How, in your view, are judges meant to interpret whether a law is impermissibly aimed at discrimination, and from what sources do you feel it appropriate to render such an assessment? And to follow up, to what extent do you view this application of precedent deciphering in this case the motive behind voter ID laws extend to issues of disparate impact more broadly?
16) While there has been ample controversy concerning potential racial bias in redistricting and gerrymandering, in a recent case before the Supreme Court (Abbott v. Perez) it was assessed that the district lines may have been drawn out of political bias, which in some parts of the country overlap considerably with racial demographics. Given that we treat racial discrimination with strict scrutiny, how do you view the Court precedent as informing how you would disentangle politically-motivated from racially-motivated drawing of district lines?
Separation of Powers
17) You have been highly critical of the decision Chevron v. NRDC and the Court's declaration that there should be deference to agency interpretations of their authority unless Congress had been clear about its intention. What would be a more reasonable approach to administrative law doctrine? How would one balance the Supreme Court precedent and the agency's policy expertise against concerns about the scope of government intervention?
18) Your rulings on congressional deference to agencies have been inconsistent. In the context of congressional deference to the Environmental Protection Agency, you are critical of broad agency interpretations of their prerogatives. However, in PHH Corporation et al v. Consumer Financial Protection Bureau (2016), you characterized congressional creation of independent executive agencies as a "headless fourth branch of government," and held that the CFPB's leadership structure was unconstitutional. Under what conditions do you view it as appropriate and constitutionally permissible for Congress to create such agencies, and what do you view as the proper role of courts in checking the reach of this executive branch authority?
19) You said of the unanimous decision United States v. Nixon (1974), which compelled President Nixon to comply with the subpoena and to produce the tapes and documents pertaining to Watergate, “Maybe Nixon was wrongly decided – heresy though it is to say so. Maybe the tension of the time led to an erroneous decision.” You also said of United States v. Nixon, “Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.” Please elaborate on what you view as erroneous about this decision, and what you view as a more appropriate remedy than the one given. In times of executive branch corruption and an effort to promote transparency and accountability, what do you view as the proper role of the Supreme Court, if any, in guarding against excessive invocation of executive privilege? What do you believe that history, precedent, and practicality suggest should be the threshold requirements for claiming executive privilege?
20) In 2016, you said you wanted to “put the final nail” in the 1988 Supreme Court ruling of Morrison v. Olson, which by a vote of 7-1 upheld the constitutionality of provisions that created an independent counsel under the Ethics in Government Act. You additionally said, “It makes no sense at all to have an independent counsel looking at the conduct of the president.” While the law expired in 1999, being replaced by a Justice Department regulation that governs special counsels, views on the legitimacy of independent counsels and special counsels are of obvious concern right now. Please elaborate on your rationale for opposing this holding, to what extent you view Justice Scalia’s dissenting opinion as being the proper approach to adopt, and the conditions under which you view certain types of investigations of the executive branch as legitimate or inappropriate. If you view this authority as residing solely in Congress, do you view congressional inaction (potentially a result of unified government) as effectively leaving no oversight capacity over the president until the next presidential election?
21) Regarding the possibility of indicting a sitting president, you said, “Having seen first-hand how complex and difficult that job is, I believe it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be ‘one of us’ who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.” What do you view – and what do you believe that prior cases justify – as being the proper way to balance ensuring that there is rule of law and transparency amid potential issues of corruption, and promoting efficiency in the executive branch? Are there executive branch behaviors or allegations to which you would not apply that broad view of promoting flexibility and efficiency for the president, and if so, what are they?
22) The notion that there would be limits on the ability for an independent counsel, or in this case a special counsel, to investigate the President of the United States, while instead relying on the political process for impeachment, seems to be problematic in that it is difficult to obtain evidence of wrongdoing to the point of impeachment absent an investigation. How do you reconcile your reluctance to support investigatory processes into the president's conduct and a reliance on Congress, which might be looking to findings otherwise identified through that investigatory process?
23) Several political questions are currently arising that have so far been untested in the Supreme Court, particularly with respect to Article II powers. To what sources do you consult in evaluating new issues for which there is not Supreme Court precedent or is little precedent? Some of President Trump's defenders have pointed to Article II not laying out particular limits on the pardon power, and have cited this as evidence that it is unlimited, though the Constitution does not explicate limits on many rights that the Court has addressed and on which the Court has imposed bounds. In the case of issues such as the pardon power (in which specific limits are not laid out but for which immense rule of law implications can arise), to what extent do you feel that it falls within the Supreme Court's duty to interpret limits on the scope of the presidential power given broad Article II language, versus letting the issue be resolved by the democratically-elected Congress?
24) With United States v. Lopez and United States v. Morrison, the Supreme Court signaled considerable narrowing of its interpretation of the reach of Congress's power to regulate interstate commerce, instead calling upon Congress to provide greater evidence to support its claim of aggregate impact on the interstate economy. With Gonzales v. Raich, the Supreme Court broadened its interpretation, viewing the Controlled Substances Act as being within Congress's power to regulate, though in National Federation of Independent Business v. Sebelius, Chief Justice Roberts signaled another limit on what the Court viewed as a proper use of Congress's enumerated Commerce Clause authority. What do you feel is the proper test for what falls under Commerce Clause authority -- looking to whether there must be a direct impact on the interstate economy, whether the effect can be indirect, whether it has an aggregate effect on the interstate economy, whether the activity itself must be economic -- and when multiple rules have been adopted by the Court over the years (even in recent years), how would you adjudicate among them to decipher the proper scope of Congress's Article I power?
25) In United States Telecom Association v. Federal Communications Commission, you wrote a dissent in which you held that the net neutrality rule was "one of the most consequential regulations ever issued," but you ultimately claimed that it was "unlawful and must be vacated" because Congress had not explicitly authorized the FCC this rule, despite the ample record of legislative debate about the subject of net neutrality, and because restricting internet service providers' actions intruded on their editorial discretion, which you viewed as in conflict with the First Amendment. How substantial a legislative record do you view as necessary to demonstrate a legislative intent in delegating to administrative agencies, and can you please discuss where you viewed the majority on your panel as having gotten things wrong? Moreover, how do you view it as your role as a judge to balance speech rights of consumers versus the speech rights of internet providers?
Judicial Decisionmaking (general)
26) Please walk through a couple of judicial decisions that you have written in which the law led you to reach a decision that was in conflict with your personal/political beliefs, and how you reconciled that.
27) According to what criteria would you view a precedent as having been wrongly decided? How do you weigh factors such as the extent to which it has been reaffirmed, new evidence of the impact of the holding, how popular the holding is, how recent the holding was, etc?
28) Textualists tend to seek to restrict analysis to the text, giving full meaning to the words of the text, unless doing so would produce an absurd outcome. How would you define an absurd outcome, and how would you reach that conclusion?
29) One of the consequences of lifetime appointments with longer life spans is that people are on the Supreme Court for several decades, and can in some cases be quite out of step politically with public preferences (for example, approximately 2/3 of Americans favor the upholding of Roe). To what extent, if at all, do you feel it appropriate for Supreme Court justices to consider public preferences in their judicial decisionmaking?