The confirmation hearings will, as always, be prime political theater. What kinds of questions should the Democrats ask her? Here are my ideas:
- PEOPLE OF PRAISE: Questions about Catholicism in general are counterproductive, but there are reports that she may have taken some kind of an oath to this group. We are entitled to know if there was such an oath, what it was, and to whom it was given.
- RELATIONSHIP WITH TRUMP: Overturning Roe was, by Trump’s admission, a litmus test in the nomination process. It is also clear that he expects his appointees to vote in litigation over the election to keep him in office. In light of that, why should America believe that she hasn’t given him a promise on abortion, and why shouldn’t she have to recuse herself in any election-related litigation?
- ORIGINALISM: Methodological questions abound. How are the Founders’ views on things that didn’t exist (e.g., the internet) ascertained? Which Founders are the most important? How are their views determined, since they frequently changed over time? If it is more a question of general public opinion in 1787, how is that ascertained?
- THE RECONSTRUCTION AMENDMENTS: The Civil War and Reconstruction changed America dramatically. How does that impact originalism? Should the views of the authors of the three Reconstruction amendments be given the same weight as the original founders? If not, why not?
- THE ROLE OF PRECEDENT: Is it appropriate to overturn precedents on which hundreds of millions of people have relied for many years? If so, when?
- PAST CASES: Don’t just ask about Roe–ask about Griswold. It is more explosive, and will be harder for her to avoid, since there is no pending litigation on the subject. Was it correctly decided?
- THE PROPER USE OF HISTORY: Heller is another good case to use as a basis of inquiry. The leading historians on the subject of the Second Amendment think Scalia (her mentor) cherrypicked his facts to support an incorrect partisan position. Why should we believe they are wrong? What assurance do we have that she won’t do the same thing?
- THE PROPER ROLE OF THE SUPREME COURT: Is it the proper role of the Supreme Court to serve as a permanent roadblock to any proposed progressive legislation with established majority support among the electorate? Won’t the Court lose its legitimacy with the public if it does that?