Previous Supreme Court Nominees Answered Fair Questions

March 21, 2017

Contrary to what some Judiciary Committee Republicans and Judge Gorsuch have been arguing, it is not only acceptable to ask a Supreme Court nominee questions and expect specific answers; it is necessary.

Previous Supreme Court nominees answered questions about previously decided cases, key rights issues, and their approach to constitutional rights and government interests.

 

Right/Interest

Justice

Right to Privacy

  • Justice Kennedy:

Sen. Biden: “Is there a marital right to privacy protected by the Constitution?”  (Kennedy Hr’g Tr., p. 164)

Judge Kennedy: “Yes, sir.”  (Kennedy Hr’g Tr., p. 165)

 

  • Chief Justice Roberts

Sen. Biden: “Do you think there is a liberty right of privacy that extends to women in the Constitution?

Judge Roberts: “Certainly.”

Sen. Biden: “In the 14th Amendment?”

Judge Roberts: “Certainly.”  (Roberts Hr’g Tr., p. 186)

 

  • Justice Alito

Sen. Feinstein: “you did say that you believe the Constitution provides a right of privacy.”

Judge Alito: “I did say that.  The 14th Amendment protects liberty.  The Fifth Amendment protects liberty. And I think it is well accepted that this has a substantive component, and that that component includes aspects of privacy that have constitutional protection.” (Alito Hr’g Tr., p. 409)

Diversity in Higher Education

  • Justice Alito

Commenting in discussion of Grutter v. Bollinger (2003), “Having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class.  So in that setting, I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be…Having a diverse student body is a compelling interest.” (Alito Hr’g Tr., p. 628)

 

One Person/One Vote

  • Justice Alito

“I think that the principle of one person/one vote is a fundamental part of our constitutional law. And I think it would be – I don’t see any reason why it should be re-examined.  (Alito Hr’g Tr., p. 389)

Right to Vote

  • Chief Justice Roberts

Sen. Kennedy: “You do agree, don’t you, Judge Roberts, that the right to vote is a fundamental constitutional right?

Judge Roberts: “It is preservative, I think, of all the other rights.” (Roberts Hr’g Tr., p. 171)

 

Equal Protection Clause

  • Chief Justice Roberts

Sen. Kennedy: “do you believe that the Court had the power to address segregation of public schools on the basis of the Equal Protection Clause of the Constitution?”

Judge Roberts: “Yes.”  (Roberts Hr’g Tr., p. 167)

 

Intermediate Scrutiny for Gender Classifications

  • Chief Justice Roberts

Sen. Biden asks if Roberts believes the Court should use heightened scrutiny for laws that treat women differently, “Do you think that needs to be done, that the Constitution calls for that?”

Judge Roberts: “Yes, Senator, I do.”  (Roberts Hr’g Tr., p. 191)

 

Affirmative Action

  • Justice Kennedy

 

 

Previous nominees also answered questions about previous Supreme Court cases and precedents of the Court.

 

Case/Precedent

Justice

Eisenstadt v. Baird (1971)

(right of unmarried people to possess contraception)

 

  • Justice Alito

“I do agree with the result in Eisenstadt.” (Alito Hr’g Tr., p. 327) 

Griswold v. Connecticut (1965)

(ban on contraception unconstitutional violation of right to marital privacy)

  • Chief Justice Roberts

“I agree with the Griswold Court’s conclusion

that marital privacy extends to contraception and availability of that.” (Roberts Hr’g Tr., p. 207)

Youngstown Sheet v. Sawyer (1952)

(presidential power to act must come from Constitution or Congress)

  • Justice Alito

Sen. Specter: “you agree with the quotation from Justice Jackson's concurrence in the Youngstown Steel seizure case.”

Judge Alito: “I do.  I think it provides a useful framework.”  (Alito Hr’g Tr., p. 332) 

 

 

Hamdi v. Rumsfeld (2004)

(Fifth Amendment due process allows U.S. citizen detained in U.S. right to contest detention before neutral authority)

  • Justice Alito

Sen. Specter: “Do you agree with Justice O’Connor’s statement quoted frequently yesterday from Hamdi that, ‘We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens,’ when she was citing the Youngstown case?  Do you agree with that?”

Judge Alito: “Absolutely. That’s a very important principle.”  (Alito Hr’g Tr., p. 333) 

 

Brown v. Board (1954)

(segregated schools are unconstitutional)

  • Justice Kennedy

“I think Brown v. Board of Education was right when it was decided, and I think it would have been right if it had been decided 80 years before.” (Kennedy Hr’g Tr., p. 149)

 

  • Chief Justice Roberts

Sen. Kennedy: “Do you agree with the Court’s conclusion that the segregation of children in public school solely on the basis of race is unconstitutional?”

Judge Roberts: “I do.”  (Roberts Hr’g Tr., p. 167)