Schumer Hands Alito List of Over 100 Questions At Their First Meeting Today
SCHUMER HANDS ALITO LIST OF OVER 100 QUESTIONS AT THEIR FIRST MEETING TODAY
Senator Hopes to Get Answers to a Broad Range of Questions Discussed in Private Meeting Today and Addressed by His List of Questions As Well
U.S. Sen. Chuck Schumer, the ranking member of the Judiciary Subcommittee on the Courts, met with Judge Samuel Alito today and handed him a list of over 100 questions. Judge Alito will come before the Judiciary Committee on January 9, 2006.
Questions for Judge Samuel A. Alito, Jr. from Senator Charles E. Schumer
1. Judicial Review and Legislative Deference
Chief Justice John Marshall famously wrote in Marbury v. Madison (1803): "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
Do you agree with the principle of judicial review established in Marbury v. Madison?
Under what circumstances should the Supreme Court invalidate a law duly passed by Congress?
What deference should the Court give to Congress when reviewing legislation? Is similar deference, less deference, or greater deference owed to the enactments of state legislatures?
Do certain types of laws - such as comprehensive regulatory regimes or criminal laws - deserve greater deference than others?
Do you agree that the Supreme Court must defer to Congress when Congress had a "rational basis" for believing that a particular activity has a "substantial affect" on interstate commerce?
Which of the following laws and legal documents should be construed as narrowly as possible, and which should be construed more broadly?
The Constitution?
Federal statutes?
State statutes?
Agency rules and regulations?
Search warrants?
Contractual terms?
Let me ask you about a few cases in which the Supreme Court has struck down federal or state laws:
Do you agree with the Supreme Court's decision to strike down the Gun-Free School Zones Act at issue in United States v. Lopez (1995)? Why or why not?
Do you agree with the Supreme Court's decision to strike down provisions of the Violence Against Women Act in United States v. Morrison (2000)? Why or why not?
Do you agree with the Supreme Court's decision that the federal Controlled Substances Act can be constitutionally enforced against California citizens with respect to medical marijuana, despite that state's Compassionate Use Act, in Gonzales v. Raich (2005)?
2. Stare Decisis
Under what circumstances is it appropriate for the Supreme Court to overturn a well-settled precedent upon which Americans have come to rely?
Does your answer depend at all on the length of time that the precedent has been on the books?
Does your answer depend at all on how widely criticized or accepted the precedent is?
Does it matter if the precedent was 5-4 in deciding whether to overturn it? Does it matter if was a unanimous decision?
Does it matter whether the question at hand is a matter of statutory interpretation or constitutional interpretation?
Does it matter if the precedent has been revisited? Does it matter if the precedent has been specifically affirmed? Does it matter if the Court was closely split on revisiting?
Does it matter if the composition of the Court has changed since the issue was originally considered?
What if you agree with the result in a case but believe the legal reasoning was seriously flawed? Does that make a difference?
Specifically:
Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit Authority)? Was the Court right to overturn its precedent nine years later? Why or why not?
Do you agree with the 1989 decision in which the Supreme Court held that it was constitutional to execute minors (Stanford v. Kentucky), or do you agree with the later 2005 decision, which held that executing minors violates the Eighth Amendment (Roper v. Simmons)? Was the Court right to overturn its precedent sixteen years later? Why or why not?
Do you agree with the 1986 decision in which the Supreme Court held that states could criminalize private sex acts between consenting adults (Bowers v. Hardwick), or do you agree with the later 2003 decision, which held that the states could not (Lawrence v. Texas)? Was the Court right to overturn its precedent seventeen years later? Why or why not?
3. Judicial Activism
How do you define judicial activism? Give us three examples of Supreme Court cases that you consider to be the product of judicial activism.
Is the "activist" label limited to more liberal-leaning judges, or can there be conservative activist judges? Can you cite any examples of conservative judicial activism?
Do you believe that the Supreme Court was engaging in judicial activism when it struck down provisions of the Gun-Free School Zones Act (United States v. Lopez) or the Violence Against Women Act (United States v. Morrison), both of which had been passed by Congress?
Was the Supreme Court engaging in judicial activism in:
Brown v. Board of Education?
Miranda v. Arizona?
Dred Scott v. Sandford?
The Civil Rights Cases of 1883?
Lochner v. New York?
Furman v. Georgia?
Bush v. Gore?
What distinguishes one case from the other?
Judicial activism has been defined as a making rather than interpreting law, and specifically as a lack of deference to the politically accountable branches of government through the invalidation of laws enacted through the democratic process. A recent study found that, by this definition, Justice Clarence Thomas, appointed by President George H. W. Bush, was the most activist judge on the Supreme Court, voting to invalidate 65.63 percent of Congressional statutes he considered; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. Do you agree with this definition of judicial activism? Why or why not?
4. Judicial Philosophy
Do you describe yourself as falling into any particular school of judicial philosophy?
What is your view of "strict constructionism"?
What is your view of the notion of "original intent" and "original meaning"? Is there a significant difference between the two?
How do you square the notion of respecting "original intent" with the acceptance of the institution of slavery at the time the Constitution was adopted?
Chief Justice Roberts used the terms "modesty" and "stability" to describe the philosophical underpinnings of his approach to judging.
What is your perspective on this approach?
Would you use the same words to describe yourself?
What other descriptions would you choose?
5. Commerce Clause
Beginning in 1937, when it upheld the National Labor Relations Act, the Supreme Court has granted Congress great latitude in passing laws under the Commerce Clause. The Court has upheld a wide range of federal laws, including those that regulate labor standards, personal consumption of produce, racial discrimination in public accommodations, and crime. In the last ten years, however, the Supreme Court has shifted course, striking down acts of Congress on Commerce Clause grounds for the first time in Sixty years.
Do you agree that prior to the mid-1990s, the Court had given Congress too much leeway in its exercise of the Commerce Clause power?
Do you agree with the trend towards striking down laws on this basis?
What do you believe is the extent of Congress's authority to legislate under the Commerce Clause? How are those limits determined?
Can Congress regulate local trade in a product that is used nationally?
Can Congress regulate labor standards for states and cities under its Commerce Clause power?
How closely connected must the regulated action be to interstate commerce for Congress to have the authority to legislate?
Where would you look for evidence that Congress is properly legislating under its Commerce Clause authority? Do you rely exclusively on the text of the legislation? Do you look at the legislative history? Do you consider the nature of the regulated activity?
Specifically:
Do you agree with the Court's decision in United States v. Lopez (1995), which struck down the Gun-Free School Zone Act? Is there any circumstance under which Congress could regulate activities in and around schools using its Commerce Clause authority?
Do you believe that the Constitution gives Congress the authority to regulate wholly intrastate manufacturing and production of commercial goods, as the Court held in Wickard v. Filburn (1942) and Gonzales v. Raich (2005)?
Do you see any inconsistencies between the trend that began with United States v. Lopez (1995) and United States v. Morrison (2000) and the decision this year in Gonzales v. Raich (2005)?In your view, can those cases be fairly reconciled?
6. Privacy
Is there a constitutionally protected right to privacy, and if so, under what circumstances does it apply?
The word "privacy" is not mentioned anywhere in the Constitution. In your view, does that mean it is wrong for the Supreme Court to interpret the 14th Amendment to the Constitution as conferring such a right?
Do you agree with Justice Scalia's reference in United States v. Carlton (1994) to "substantive due process" as an "oxymoron"? Or, alternatively, do you agree with Chief Justice Roberts that the Fourteenth Amendment's guarantee of "due process" has a substantive component as a well as a procedural component?
Do you further agree with Chief Justice Roberts that a right to privacy is part of the liberty interest that is protected under the substantive component of due process?
Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?
Specifically:
Do you believe that Griswold v. Connecticut (1965), which held that the right to privacy in the Constitution protects the right of married couples to purchase and use contraception, was correctly decided? Do you agree with the legal reasoning in that case? Do you believe it reached the right result?
Do you believe that Roe v. Wade (1973) was correctly decided? Do you agree with the legal reasoning in that case? Do you believe that it reached the right result?
Once a particular right to privacy has been found - as in Griswold and Roe - under what circumstances should the Supreme Court revisit that right?
Do you agree with Chief Justice Roberts's statements in his confirmation hearings that the right to privacy extends back to the cases Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), which concerned the rights of parents to educate their children?
7. Civil Rights
Do you believe that racism remains a problem in America?
Do you believe that sexism remains a problem in America?
Are there other issues of discrimination that you find troubling in America?
What is your general view of the constitutionality of affirmative action?
Does a law violate the Equal Protection Clause if it affects different groups differently, or must there be a discriminatory intent?
What do you believe to be the constitutionally appropriate role of the federal government and of the courts to protect access to the polls? From what provisions of the Constitution do these roles derive?
To what extent can Congress use its power under Section 5 of the Fourteenth Amendment to prohibit discrimination that is not already prohibited by the Amendment itself?
What are the requirements and limitations of the constitutional principle of one person-one vote?
Do you agree with the Supreme Court's holding in Johnson v. DeGrandy that proportional representation, while not dispositive, may be an indication that a districting plan does not unlawfully dilute minority voting strength under Section 2 of the Voting Rights Act?
Do you agree that, under the Equal Protection Clause, disparate impact alone does not render a law unconstitutional, as the Court held in Washington v. Davis (1976)?
8. Environment
What is the proper role of the federal government in enacting laws to protect the environment?
Does the Constitution provide any instruction on how Congress should balance the interests of industry against environmental interests?
Under the Constitution, how far can Congress go in imposing restrictions on people and businesses to protect the air and water?
Under the Constitution, how far can the states go in enacting laws to protect the environment, and does it matter whether there is federal legislation on the same subject?
Who has standing to challenge a corporation or a governmental agency that either is damaging or inadequately protecting the environment?
9. Rights of the Disabled
What is the proper role of the federal government in enacting laws to protect the rights of the disabled?
Does the Constitution provide any instruction as to how Congress should balance the costs to business against the government's interest in creating equal access to facilities for disabled persons?
Does the Constitution provide any instruction on whether federal laws mandating access to buildings for disabled people can be written to apply to both public and private buildings in the states?
Under the Constitution, may Congress use its spending power to attach conditions to the receipt of federal funds by the states? What limitations, if any, apply to such conditions?
For example, do you believe that the Americans with Disabilities Act constitutionally requires state buildings to be accessible to the disabled, as the Supreme Court held in Tennessee v. Lane, or do you think that sovereign immunity exempts the states?
10. First Amendment and Freedom of Expression:
What, if any, are the limitations on the freedoms guaranteed by the First Amendment to the Constitution?
When can Government regulate public speech by individuals?
When does speech cross the line between constitutionally protected free expression and slander?
In what ways does the First Amendment protect the spending and raising of money by individuals in politics?
Can Government regulate hate speech? What about sexually explicit materials?
Specifically:
Do you agree with the landmark decision in New York Times v. Sullivan (1964), which held that public criticism of public figures is acceptable unless motivated by actual malice? What individual characteristics do you believe determine whether someone is a public figure under this standard?
Do you believe the Supreme Court was correct to strike down the Communications Decency Act in Reno v. ACLU (1997) on the grounds that pornography on the Internet is protected by the First Amendment?
What is your view on the distinction the Supreme Court drew in Buckley v. Valeo (1976) and McConnell v. FEC (2003) between contributions and expenditures in the course of political campaigns? Do you believe that it is legitimate to construe campaign expenditures as protected speech but not donations by individuals?
11. First Amendment and the Establishment Clause:
Under the Establishment Clause, what, if any, is the appropriate role of religion in Government?
Is there a difference between religious expression in Government buildings, documents, and institutions and Government spending on private, faith-based initiatives?
What do you see as the constitutionally protected or limited role of faith-based groups in Government-funded activity? In Government institutions?
Specifically:
In the two cases the Supreme Court decided on the Ten Commandments recently, a display of the Commandments inside a Courthouse was found unconstitutional, while a statue of the Commandments on the grounds of a state capitol was deemed acceptable. Do you agree with the distinction the Court drew between the two displays in Van Orden v. Perry and McCreary Country v. ACLU (2005)? In your view, are these decisions consistent with each other?
What is your view of the Supreme Court's opinion in Santa Fe Independent School District v. Doe (2000), which held that prayer in public schools is prohibited even where it is student-organized, non-denominational, and at a football game?
12. Justiciability
Where would you draw the line between questions that are political and questions that are appropriate for a court to decide?
Do you agree with the reasoning in Powell v. McCormack? Why or why not?
Do you agree with the reasoning in Baker v. Carr? Why or why not?
Do you agree with the reasoning in Bush v. Gore? Why or why not?
What power does the Supreme Court have to intervene in state election laws (as in Bush v. Gore)?
What role should the Supreme Court play in disputed elections?
13. Which Supreme Court Justice do you believe your jurisprudence most closely resembles and why?
14. When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia's opinions, or Justice Ginsburg's?
15. Can you identify three Supreme Court cases that have not been reversed where you are critical of the Court's holding or reasoning and discuss the reasons for your criticism?
16. Can you identify any case you have decided in which you felt compelled by the law to reach an outcome that you would have disagreed with from a policy perspective?
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