What to ask Sonia Sotomayor

Usually these confirmation hearings are a bit of kabuki theater where senators try to figure out how a nominee would rule on a particular issue and the nominee tries to avoid answering by saying that he or she can't possibly say anything about a case that might come before the Court. So, while the NRA might want to pin her down on an issue like applying the Second Amendment to the states, she is most probably going to avoid answering such a question. Ever since the Bork hearings, nominees have learned to avoid giving expansive or definitive answers to such questions.

The New York Times asked seven legal experts of various ideological positions what questions they would like to ask Sonia Sotomayor. I like Kathleen Sullivan's question about federalism and the way she tied it to cases on which Sotomayor has already ruled.

1. Advocacy of “states’ rights” has long been considered a hallmark of conservative judicial philosophy. Recently, however, we have seen the advent of what might be called “blue states’ rights,” as progressive states seek to provide greater consumer, environmental and antidiscrimination protection than the federal government, while business seeks to strike down such measures as pre-empted by federal law.

What is your view of the role of federalism in our constitutional system? And how has that view affected your rulings in the cases that have come before you concerning whether federal laws pre-empt state laws or causes of action?

A question looking back to her past rulings is more likely to elicit a straight answer than one looking forward to a hypothetical case.

Michael Chertoff gets at what really bugs conservatives - the use of outside sources as the basis for decisions.

1. If confirmed, you will be the only member of the Supreme Court who was a federal trial judge. You know that the factual findings of a trial judge or jury are based on a carefully assembled body of evidence. In your opinion, to what degree is an appeals judge confined by that evidential record in reaching decisions? When, if ever, is it appropriate for an appellate judge to rely upon other, extrinsic sources — like social science studies, polls or academic writings — in deciding a case?

Ever since the famous 1908 Brandeis Brief in Muller v. Oregon we've seen more and more references in judicial decisions to such extrinsic sources. For example, in Atkins v. Virginia, the case that struck down capital punishment for the mentally retarded, the majority decision made use of public opinion polls to determine what "cruel and unusual" meant in the 21st century. Some legal experts like Akhil Amar would like to seem more use of poll results in judicial decision. Personally, this seems very problematic to me knowing how the wording of questions can skew results in polls. I see justices using polls like people at a cocktail party - only talking to those whom they like. We'd see use of polls or foreign opinions of social science when the findings favor the results that justices would like to reach in the case anyway and ignoring them when the results don't come out their way.

Stephen Carter tosses up softballs - if this is his idea of a question to really find out anything about Judge Sotomayor, I'd send him back to the minor leagues.

3. There was a time when the majority and the dissenters on the court went out of their way to be respectful toward each other. Even in so divisive a case as Miranda v. Arizona in 1966, the dissenters, who thought the result simply terrible, seemed to write more in sorrow than in anger. Now some members have taken to sniping at each other regularly in their opinions, particularly in the footnotes. What do you think is the cause of this trend? If confirmed, what might you do to help stop it?

Oh, blech!

I'd rule out any question where you know what the respondent's answer would be ahead of time. If you can't figure out what a nominee, be it Sotomayor or John Roberts, would answer to that question, then you haven't been paying attention to these sorts of hearings.

Ann Althouse is mischievous with her questions about the "wise Latina" line and then this one:

2. If a diverse array of justices is desirable, should we not be concerned that if you are confirmed, six out of the nine justices will be Roman Catholics, or is it somehow wrong to start paying attention to the extreme overrepresentation of Catholicism on the court at the moment when we have our first Hispanic nominee?

While I appreciate Althouse throwing the question of diversity back at liberals, do we really think that any senator would ever ask such a question or that Sotomayor would give an honest answer to that?

Randy Barnett, writing in today's Wall Street Journal, suggests questions about her interpretation of key clauses in the Constitution.

They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

I like this approach. Ideally, I would like the senators to ask short, open-ended questions that would give her an opportunity to let us know how she interprets these clauses that are the foundation of the controversial decisions in the Court's history.

The last thing I want to hear are long questions that simply provide the senator an opportunity to suck up to his or her particular target audience and have little to do with soliciting an actual response from the candidate. But I suspect that that is what we'll get the most of.