4 questions for court nominee

Published on: 5/10/2010

In July, members of the Senate Judiciary Committee will begin public hearings devoted to the nomination of Elena Kagan for a seat on our nation's most prestigious bench.

Committee members and their staffs will spend the bulk of their waking hours over the next few weeks working to prepare for the hearings. Much of that work will consist of formulating questions to pose to the nominee, questions that by and large will focus on mundane trivialities such as religious liberty, racial equality, reproductive freedoms, criminal justice and the allocation of power between nation and state. I know because I have spent time and energy assisting in the effort over the past two decades.

Alas, few if any questions rooted in such topics will elicit information likely to illuminate anything of substance not already known about the nominee or her views. Indeed, remarkably few of the hundreds of draft questions to cross the desks of senators offer the hope of producing nuggets even remotely probative of the nominee's future conduct on the Supreme Court of the United States.

For this reason, I propose that committee members - especially those Republicans who may be both skeptical of the nominee's willingness to be responsive to their inquiries and predisposed to vote against the nominee regardless of the merits of her candidacy or the quality of her performance at the hearings - replace their anticipated lines of extended bombast with the following concise, straightforward questions.

1. Solicitor General Kagan, your professional record - as both a lawyer and a scholar - reflects a thoughtful commitment to untrammeled executive authority. That being the case, which of the following 20th-century figures do you most admire?

a) Joseph Stalin

b) Adolf Hitler

c) Pol Pot

d) Idi Amin

2. Your membership in the baby-boom generation invites the inference that the turbulence of the '60s and '70s shaped the intellect, temperament and outlook that have accompanied you throughout your distinguished career in the law. Accordingly, which of the following cultural experiences most influenced your emerging sensibilities regarding authority, freedom and justice?

a) The utter disregard for life and law manifested by Bonnie and Clyde in the 1967 film of the same name

b) The persistent insubordination and disturbing shenanigans displayed by Hawkeye Pierce throughout the early seasons of "M*A*S*H"

c) Ed Sullivan's edict that The Rolling Stones change the suggestive lyrics of the song "Let's Spend the Night Together" prior to allowing the tune to be performed on his show

d) CBS finally yanking those unpatriotic Smothers Brothers off the air in 1969

3. Young Americans continue to be inculcated with the notion that the American system of justice represents the finest on the planet. Our youngsters also learn that the nine Supreme Court justices sit perched atop that system of justice. Given these realities, which of the following developments that captured our national imagination do you believe reflected the very best of American justice?

a) the trial of O.J. Simpson

b) the decision of the United States Olympic Committee to keep Tonya Harding on the American Olympic squad that went on to compete in Lillehammer

c) Major League Baseball's prompt and decisive action in the wake of its discovery that steroid use was afoot

d) the battle to replace Johnny Carson as host of "The Tonight Show"

4. Let's cut to the chase. If confirmed by the Senate your work on the high court surely will destabilize aspects of the law deemed central both to individual liberty and government authority. Which of the following principles currently safeguarded by our Constitution are you most eager to undermine?

a) the right of parents to carry handguns to elementary school parent/teacher conferences

b) the authority of local governments to post pictures of Jesus outside every Department of Motor Vehicles office

c) the right of adulterous heterosexual Americans not to have their marital bonds weakened by those who insist on encouraging the legal system to accord respect to the relationships of gays and lesbians

d) all rights of private property

Quite simply, the answers supplied by Kagan to these four questions will reveal all that Americans truly need to know about the approach to law we can expect from Justice Kagan. And woe to the nominee in the event she proves unwilling to provide an answer to even one of these questions.

Peter K. Rofes is professor of law and associate dean for academic affairs at Marquette University Law School. He has assisted Sen. Herb Kohl (D-Wis.) in connection with the Senate Judiciary Committee hearings of David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, John Roberts, Samuel Alito and Sonia Sotomayor.