Media Criticism, Philosophy, Political Commentary, Social Commentary

The One Question Any SC Nominee Should Be Asked

50 Comments

I’ve often discoursed on this:

What’s something you think is a good idea but you think is unconstitutional? Or, conversely, what’s something you think is a bad idea but you think is constitutional?

Everyone concerned with the Constitution — and most especially Supreme Court nominees — should be asked this question. And if they don’t have an answer — that is, if they think everything they like is constitutional — then maybe they don’t really believe in the Constitution.

Too many think that the purpose of SCOTUS and the judiciary in general is to give them results they like, as opposed to results conforming with the law and the Constitution. Elena Kagan failed this question in her confirmation hearings, when she said a law mandating the eating of broccoli would be a bad idea, but Constitutional. She got it exactly backwards.

50 thoughts on “The One Question Any SC Nominee Should Be Asked”

  3. she said a law mandating the eating of broccoli would be a bad idea, but Constitutional. She got it exactly backwards.

    Are you saying it would be a good idea, but unconstitutional?

    IANAL, but what would be unconstitutional about a law mandating the eating of broccoli?

    It’s interesting to read that Scalia lobbied for Kagan’s appointment.

          1. Did Kagan’s questioner specify a federal law? Many of the laws that the Supreme Court rules on are state laws. For example, next month they’ll hear arguments on the constitutionality of a Texas law regulating abortion clinics.

    2. <iIt’s interesting to read that Scalia lobbied for Kagan’s appointment.

      That story may or may not be true. It’s from Axelrod. Given his history, I doubt the veracity of the story.

    3. There’s a very short list of “Everyone in the country is -required- by law to do X.”

      I think the list is: “Men must register for the draft” and “Must have health insurance.”

      Most everything else is: -IF- you do X (or -want- to do X), THEN you must Y. -IF- you wish to operate a motor vehicle on state land, THEN you must …

      My old health insurance had requirements for specifics tests and health-related actions. A -requirement- to have that insurance is, conceptually, allowing the requirement “You must eat broccoli.”

      If you think that’s fine, you’re a number not a free human.

      1. There are other “musts”. Off the top of my head, you must report income (and a variety of other financial activities), you must get vaccinated, you must take care of your dependents, you must report known fugitives from justice and you must attend school.

        1. Who says they’re correct? Income tax is an amendment. The rest should be covered by the states.Why is this so hard to understand? Do you really enjoy making me do what you think is right? How about I force you to buy a gun? Would you like that?

          1. Or everyone must eat meat. Everyone must belong to a religion, not any specific religion just a religion. Everyone must buy their one pair of shoes from Nike Bernke. Everyone must go through social justice classes…

          2. Who says they’re correct?

            I’m not arguing that they’re correct, just pointing out that they exist.

            Income tax is an amendment.

            Fun fact: the Sixteenth Amendment only legalized federal taxes on unearned income. Federal taxes on wages were Constitutional all along, and in fact we had a federal income tax from 1862 to 1872 to fund the Civil War.

          1. No need for Google, just note the second word in “home school movement.”

            The point is that truancy laws exist, and place an affirmative burden on citizens. While most laws say “you must not do X”, or “if you do X you must also do Y”, truancy laws say: “you must do X”.

          2. You simply don’t get it. You consistently say these laws exist and refuse to discuss whether they are constitutional or not, which is the whole pont of this discussion. Second time: will you take the gun I force you to own?

          3. I see the problem, Jim.

            Apparently, you don’t understand that “school” is a verb as well as a noun. A home “school” isn’t a building you “attend,” and they don’t employ truant officers.

            There are also Virtual schools on the Internet, which would confuse you even more.

            Federal taxes on wages were Constitutional all along

            *Proportionate* taxes on wages were Constitutional. You have this habit of understanding part of an idea, skipping over any words that are incompatible with your preconceived ideas.

        3. In California, at least, there is no requirement to vaccinate.

          They did recently change the law to require students spending more than 80% (I think) of their instruction time at a school with more than 30(?) students to provide proof of vaccination or to present a note from their priest (or other state sanctioned religious leader) excusing them.

          Unrelated, I’m sure, but there’s now a thriving cottage industry of religious exemption providers.

    4. The same thing that is unconstitutional about a law mandating the purchase of health insurance. Do you really not see how totalitarian would be a federal law requiring of all citizens the consumption of a food item?

      1. What part of the Constitution would an insurance mandate violate?

        The only obstacle I see is the Ninth Amendment. But the Ninth Amendment doesn’t seem to bother you when it comes to laws which you consider a good idea (i.e., the War on Immigration).

        Gregg said that because we live in a more sophisticated age, those silly ideas of the Founding Fathers are no longer workable. Isn’t that the same argument is made by those wanting an insurance mandate (and every other component of the Welfare state)?

        Should the government obey the Constitution (including the Ninth Amendment) some of the time, and ignore the rest of the time? If so, how do we decide when to ignore it when to obey it?

        Do you think it would be Constitutional to require immigrants to buy health insurance? If so, why is unconstitutional to require native-born Americans to buy it? If not, why is Constitutional to require immigrants to jump through all the other hoops that are put in their way?

      2. Do you really not see how totalitarian would be a federal law requiring of all citizens the consumption of a food item?

        Which was exactly Kagan’s point! There is no provision in the Constitution that bars the states from passing totalitarian laws, simply because they are totalitarian. A law that bans private ownership of firearms isn’t unconstitutional because it is totalitarian, it is only unconstitutional because it violates the Second Amendment. A law, like a broccoli mandate, can be totalitarian, and a bad idea, and still be constitutional.

          1. Same story. A federal law banning firearm possession wouldn’t be unconstitutional but for the Second Amendment. A federal broccoli mandate wouldn’t be unconstitutional either. “Congress shall pass no totalitarian laws” isn’t part of the Constitution.

          2. Nice try, but one of those things is not like the other. A key part of the decision in ObamaCare was whether or not the federal government could mandate the purchase and consumption of a product. It ruled that it could not. The only reason the law wasn’t overturned was because Roberts decided at the last minute to declare it a tax instead of a mandate. Kagan also knew that such a federal law would be unconstitutional, which is why she refused to go on the record and clearly answer Coburn.

            The 9th and 10th Amendments are the “Congress shall pass no totalitarian laws” part of the Constitution. There is no enumerated power to legally compel people to buy and consume stuff.

          3. Modulo the 10th amendment, that is. The possible constitutional problem with a federal broccoli mandate isn’t that it’s totalitarian, or that it imposes an affirmative burden. The federal government has the constitutional power to require military service, which is both totalitarian and an affirmative burden.

          4. There is no enumerated power to legally compel people to buy and consume stuff.

            There’s no enumerated power to control where people can migrate, either. If you’re willing to ignore that for laws that you want, how can you complain when other people do the same?

          5. Edward Wright raises a question I’m surprised I hadn’t run across before: where does the power to control immigration come from? There is the power

            To establish an uniform Rule of Naturalization

            but I wouldn’t normally read that to include limiting immigration, just establishing the conditions under which immigrants can become citizens. If I think about original intent, my guess would be that no founder ever imagined we wouldn’t welcome anybody who put out the effort to come; there was plenty of room, and still more room waiting to the west.

            Section 9 is about slavery, but says

            The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.

            This makes it sound as if it was assumed that such migration and importation could be prohibited after 1808, but (a) we all know it was talking about slaves, and (b) shouldn’t there be a section 8 power that covers this?

            In line with Rand’s question, I’m totally not asking whether either open borders or excluding Syrians are good ideas, but rather what Constitutional thought has to say about it, and whether anybody discussed it when the first immigration laws were passed.

            (For that matter, is there an argument that a state can’t limit immigration, even of citizens from another state? I see that they are not allowed to lay imposts or duties on imports or exports, but I’m damned if I can construe any prohibition on, say, Arizona forbidding Californians from entering or residing in Arizona.)

          6. is there an argument that a state can’t limit immigration, even of citizens from another state?

            That would depend on the state in question and its individual constitution.

            The question is not entirely hypothetical. When I lived in Washington state, there was a significant Washington Native movement that opposed immigration from other states (particularly California).

            I don’t know if such a prohibition would be legal under the Washington State constitution.

            Ignoring the question of constitutionality, you might ask, why *not* prohibit immigration from other states? If you believe that immigration drives down wages and creates unemployment, wouldn’t that be just as true of whether immigration is from California, Taiwan, or Mexico?

            Larry and CJ say we must we stop immigration because two — count them, two — former Disney filed a lawsuit alleging that they lost their jobs to immigrants. I’m sure you can find *at least* two Boeing or Microsoft employees who lost their jobs to immigrants from California. If we ignore any new jobs *created* by California immigrants (as Larry and CJ do with foreign immigrants), isn’t the case against interstate immigration just as strong as the case against international immigration?

            For that matter, why shouldn’t a county, or even a city, put up a wall to stop immigration? If immigration creates poverty, would should make sure people stay put, right?

  4. Superb questions, and ones I’d very much like to see every judicial nominee (not just SC) made to answer.

    It’s long disgusted me that so many people (judges included) either can’t or won’t differentiate the two.

    An example I give often is this; Would it be constitutional for a president to respond to a natural disaster by donning a chicken suit and marching down the mall singing “yankee doodle dandy” while hitting himself in the head with a hammer? Absolutely that would be constitutional. Would it be a good idea? I think not.

  5. In an ideal world, nominees would know exactly how to answer before the judiciary committee, because they’d have been questioned on it by the president before he even considered nominating them.

    Likewise every single goddamned executive appointee, from Secretary of State down to assistant deputy chief of staff to the special assistant to the vice-presiddent for foreign funeral protocol.

    Not to mention any candidate for president or veep.

  6. Was Kagen actually asked about the constitutionality of making someone eat something? I just watched the exchange with Senator Colburn, and the question didn’t really get addressed. The Senator was asking about the commerce clause, and Kagen’s non-answer was in the context of the commerce clause. See for yourself:
    https://www.youtube.com/watch?v=DSoWGlyugTo
    Frustratingly, I can’t tell whether the video ends prematurely or not!
    Put aside partisanship – lets get to the bottom of this. What happened? I’m out of time, but can anyone either find a longer video or better yet find the text transcript? Thanks!

      1. I provided a link to a C-Span video of what actually happened! It is completely false that she “refused to say it would be unconstitutional.” And no wonder, because she wasn’t asked. She was asked whether the law would violate the commerce clause. I’m sure you care about the truth. Watch the video and see for yourself.

          1. Here is the full video: https://www.youtube.com/watch?v=BAt9RDCP5SI
            The “eat your vegetables” section starts at minute 20.
            In the full video, Coburn asks two more versions of his question, including a version which DOES broadly ask whether it would be constitutional. So, I would have benefited from finding and watching the full video before commenting.

  7. Good unconstitutional idea: letting naturalized citizens run for president

    Bad constitutional idea: a state law that empowers the tallest member of the state legislature to cast that state’s votes in the electoral college

  8. What the hell does questioning a SCOTUS candidate have to do with anything these days? The left has put their rubber stamps in human form for half the court and the other half tend to “grow” while in office thanks to stupid party asking stupid questions like this. It’s WAY past due for the Republican President/Senate to simply find the most dogmatic constitutionalist candidate who will live at least another 30 years and put them in by banning the filibuster (thanks Harry Reid). End of story. I realize this is a fantasy, of course, since the Dems know they are in a vicious war for the soul of the country and the Republicans are just looking to get re-elected.

    1. What the hell does questioning a SCOTUS candidate have to do with anything these days?

      Also, people lie, especially Democrats who treat it as both an art and a science.

  9. Jim said: ” Off the top of my head, you must … get vaccinated,”

    Is that right? I thought you must vaccinate a child for that child to be allowed to attend public school, but if the child is homeschooled, the vaccination is less important — the home school being more or less self quarantined.

    You must get vaccinated before being issued a passport or visa to certain regions where infectious diseases are known to be endemic but again if you remain self-quarantined at home, I don’t know of a requirement.

    You must get vaccinated as part of public service in the military or peace corps, which may require you to travel to certain regions etc. but…

    You must get vaccinated to be employed or certified as a medical provider dealing with patients who themselves may be infectious or who have traveled in certain regions …

    But I am unaware of a blanket requirement that would drag people out of their homes and self-imposed isolation to get vaccinated. Am I overlooking something?

    1. Laws vary from state to state, and in about half of the states home school students must be vaccinated. So if you are a school-age human in those states, you must either attend a formal school or be home-schooled, and in either case you must be vaccinated, unless you qualify for an exemption.

  11. Jim says: “Laws vary from state to state, and in about half of the states home school students must be vaccinated.”

    I presume that the U.S. Constitution does not restrict a particular state from passing in-state laws intended to secure the health and well-being of that state’s citizens and residents. So such a law (which I’m otherwise unfamiliar with, in ANY state, but my ignorance is unbounded) may be unconstrained by the federal Constitution.

    I also presume that federal protections regarding the establishment of a religion would secure certain faiths — Christian Scientists maybe, or Jehovah’s Witnesses or Amish or heck even the Ba’Hai for all I know — from claiming a waiver on religious grounds, just as some faiths do for not taking photographs on driver’s licenses or not “swearing oath” in state court cases. So though the state law says “all … must be…” whatever, the US Constitution may protect exceptions for some — (“some… may request to be…”) So in such cases various levels of “scrutiny” would seem to apply. Can a state impose a measure to protect citizens that seems to infringe upon or burden the rights of some citizens more than it does others?

    It seems to me a greater burden to the citizenry that the US Supreme Court may impose a “one size fits all” standard upon a collection of states who have tailored their laws to custom fit the local conditions. So that, for example, a Northern State must and shall take custody of and return a person of color in servitude to a citizen of a Southern State, so preserving the property rights of the Southerner (and assuming the person-of-color has no rights worth considering under the Constitution.) Similarly it seems a burden that the citizens of Salt Lake City must define marriage in exactly the same way that citizens of San Francisco, or that people in Houston regulate their abortion mills in the exactly the same way as the people in Philadelphia, or that the executioner’s cocktails used in prisons in Oklahoma must be concocted to the same merciful and not-uncommon recipe as the killer cocktails of Wyoming.

  12. Same story. A federal law banning firearm possession wouldn’t be unconstitutional but for the Second Amendment. A federal broccoli mandate wouldn’t be unconstitutional either. “Congress shall pass no totalitarian laws” isn’t part of the Constitution.

    Not the same story. Federal vs State laws. Please read the 10th Amendment one more time, and this time pay attention.

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