Law Students

What Do You Ask Stevens? Successor?

By Casebook Sherpa

Justice John Paul Stevens is retiring “effective the next day after the Court rises for the summer recess this year.”

Fight The Hypo contributor Magnus Wellborn were discussing how we wished that these confirmation battles could focus more competence, substance, and intelligence rather than this carefully, choreographed dance designed to obscure backroom discussions and avoid saying anything of note. It’s really just political theater, the players in which are so careful to avoid saying anything that media and opponents might demagogue that it borders on comedy.

I’m sensitive though to how the issues at play – abortion, gun rights, privacy, security – are important, though. However, the focus on what a judge believes about the policy questions behind these matters can sometimes keep us from understanding how a good and brilliant lawyer approaches the legal questions and implications behind them.

Of course, this is in no small measure the result of asking the Court to decide matters of policy and define the scope of certain rights of individuals (see, e.g., privacy) and the scope of power of the federal government (see, e.g., commerce power). I get that.

So, you’re a member of the Senate Judiciary Committee. What do you ask Justice Stevens’ replacement?

I am becoming quite interested in this question we touched on regarding the pending constitutional challenge to the health insurance reform bill, namely are there are any meaningful legal constraints on Congress’ ability to regulate or mandate certain kinds of individual behavior and choice? Okay, so it’s not an exciting line of inquiry, but to me it can get to a nominee’s views of the nature of federal power (legislative and judicial) and which questions should be decided by which body and how they should be decided. So… IF (and this is a big IF) you could engage the nominee in any sort of discussion of this issue, my initial line of questioning might go something like this:

Let’s talk about the Commerce Clause. How would you describe the nature of the limits, if any, that Lopez and Morrison place on Congress’ Commerce Power?

So, is that limitation a broad limit on Congress’ ability to regulate traditionally intrastate non-commercial activity? Or is it a narrow exception?

If it is a narrow exception, what is the court’s role in assessing whether Congress has overstepped its commerce power and how do you see that role changing?

Are there areas of current or older Supreme Court jurisprudence that might be revisited in order to limit Congress’ commerce power?

Do you generally view it as a positive development that Congress is able to exert its will over matters it deems of national importance with fewer legal or formal constraints other than the Bill of Rights?

Related posts:

1. This IS a big F-ING deal – the constitutional challenge, that is

Full post as published by Fight The Hypo on April 09, 2010 (boomark / email).