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Opinion

15 questions for Elena Kagan

Supreme Court nominee Elena Kagan started answering questions from senators today. Here's what she can expect.

By Carl Tobias / June 29, 2010



Richmond, Va.

Today, Supreme Court nominee Elena Kagan began answering questions from members of the Senate Judiciary Committee. What type of queries should she anticipate? Here are 15:

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1. Some observers believe that you view executive power expansively based mainly on service in President Bill Clinton’s White House. Do you have a theory of executive power? Has the “global war on terror” altered your perspectives on that authority or how the Court should treat suspected terrorists?

2. Do you have a theory of separation of powers, that Congress, the president and the courts enjoy primacy in the legislative, executive, and judicial spheres?

On Monday, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court held that Congress’s establishment of a government auditing agency for publicly-traded companies violated separation of powers because it undermined the president’s executive power.

3. Do you have a theory of federalism, the relationship between the federal government and the states? How narrowly should the Court view Congress’s Commerce Clause power?

For instance, state challenges to federal health care reform legislation argue that Congress lacks Commerce Clause power to mandate that individuals purchase health insurance.

4. Do you have a theory of constitutional interpretation? Explain the ideas of a “living constitution” and “original intent” and whether you agree with the notions. Does original intent only apply to the 1787 Constitution’s body or to subsequent amendments, especially the Fourteenth Amendment and its Due Process and Equal Protection Clauses?

5. What pertinence, if any, should international law sources have for constitutional interpretation?

Some justices invoke international law, such as the Geneva Conventions, when they decide questions, namely whether “evolving standards of decency” prevent capital punishment for mentally incompetent people because that is cruel and unusual punishment under the Eighth Amendment.

6. Do you have a theory of statutory interpretation? For example, Justice Antonin Scalia discerns legislative intent by relying exclusively on the statutory text, while Justice Stephen Breyer consults relevant legislative history, such as committee reports.

7. Some observers have criticized the Court’s Kelo decision for too broadly viewing the eminent domain power to take private property for a public purpose. They assert that the opinion violates private property rights. Do you have a theory of private property rights?

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