Supreme Court nominee Judge Brett Kavanaugh walks along the hallways of the Russell Senate Office Building on his way to a meeting with Sen. Lindsey Graham, R-South Carolina, on July 11, 2018. Credit: Diego M. Radzinschi/ ALM

U.S. Supreme Court nominee Brett Kavanaugh next Tuesday will take a seat in front of a battery of cameras and U.S. senators, who are ready to press him on myriad issues about executive power, reproductive rights and perhaps whether his views on the news media contrast with the president who nominated him.

What would you ask Kavanaugh? Supreme Court practitioners, advocates and academics tell us one question they’d ask the nominee. Here are some of the responses:

➤➤ “Do you believe the Constitution’s guarantee of individual liberty protects the right to make personal decisions regarding one’s own body and intimate relationships, including whom one chooses to marry, how to raise one’s children, whether to use contraception, and whether to obtain an abortion?” —David Cole (American Civil Liberties Union)

➤➤ “The Supreme Court may soon be asked to reconsider important decisions including Planned Parenthood v. Casey (abortion), Obergefell v. Hodges (marriage equality), and Buckley v. Valeo (limits on individual campaign contributions). It has become commonplace for judicial nominees to dodge questions about these cases simply by declaring they are ‘established precedent’ or ‘settled law.’ But as demonstrated by last term’s landmark labor union decision—which overturned 40-year-old ‘settled law’—the court is not bound by its own precedent, no matter how well-established. Under what circumstances should the court revisit ‘settled law,’ and are any of those circumstances present with respect to Casey, Obergefell, or Buckley?” —Peter Stris (Stris & Maher)

➤➤ “How would Judge Kavanaugh craft opinions for the court? Will he craft them narrowly in a way that garners broad consensus but leaves many of the questions unresolved? Or will he craft them broadly in a way that answers the most pressing questions before the court but is likely to generate dissents from his colleagues?” —Wen Fa (Pacific Legal Foundation)

➤➤ “Do you believe demographic diversity on the federal bench and in the Supreme Court bar is important, and, if so, what do you think should be done to improve the diversity of the bench and bar?” —Jaime Santos (Goodwin Procter)

➤➤ “What I really want to know is whether he plans to play basketball regularly with the law clerks. But I’d also throw in the same question I suggested for Gorsuch last year: whether he thinks the court deciding fewer than 75 cases a term is the right number or perhaps is a bit light. If so, what number does he think might be more appropriate? I think each justice since Chief Justice John Roberts’ confirmation has said the court should take more cases, but it doesn’t.” —Carter Phillips (Sidley Austin)

➤➤ “Justice [Antonin] Scalia consistently upheld disclosure provisions in campaign laws, including campaign finance disclosure and the disclosure of petitioner signers. In Doe v. Reed, Justice Scalia wrote, ‘There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.’ Do you agree with Justice Scalia’s view that disclosure of political activity is essential to a democratic system and is therefore constitutional?” —Marc Elias (Perkins Coie)

➤➤ “Would you agree that the phrase ‘unenumerated rights’ refers to rights that are not specifically set forth in the text of the Constitution itself? Do you believe the Constitution recognizes protections for certain unenumerated rights? If yes, which ones and where do you think the court found the authority to recognize them? If no, which unenumerated rights have been improperly recognized by past Supreme Court decisions, and what do you perceive your role to be to limit or overturn them? —David Frederick (Kellogg, Hansen, Todd, Figel & Frederick)

➤➤ “Can you point to any cases of public importance in which you as a judge have written or joined a decision that represented bad policy (in your view) but was required by law? If you feel that you can’t answer that question, can you identify any cases of public importance in which you have written or joined a decision that rejected a position you had taken during your time in the executive branch or in non-judicial writing (excluding advocacy for a client)?” —Arthur Hellman (University of Pittsburgh School of Law)

➤➤ “Given that the court overruled Bowers v. Hardwick 15 years ago, do you agree, as the court held in Lawrence v. Texas (2003) that ‘Bowers was not correct when it was decided and is not correct today’?” —Shannon Minter (National Center for Lesbian Rights)

➤➤ “Have you ever expressed the opinion in the past—in writing, in a speech, in a conversation with anyone—that you believe that Roe v. Wade was wrongly decided?” —Erwin Chemerinsky (University of California Berkeley School of Law)

➤➤ “What is your position on televised arguments? And if you’re not in favor, would you at least support issuance of same-day audio for all arguments, which is the practice in the D.C. Circuit?” —Ruthanne Deutsch (Deutsch Hunt PLLC)

➤➤ “Much of the Supreme Court’s work is shrouded in secrecy for reasons that defy explanation. What are some ways that you would work to make the court, and the judiciary as a whole, more open to and understood by the larger public?” —Gabe Roth (Fix the Court)

 

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