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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.

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8. What are your perspectives on selective incorporation, the process by which the Court applies most Bill of Rights provisions to the states? On Monday, in McDonald v. Chicago, the Court held that the Second Amendment applies to the states.

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9. Chief Justice John Roberts, in his confirmation hearing, testified that judges, like umpires, are neutral arbiters, who call balls and strikes. However, retired Justice David Souter, in his recent Harvard graduation speech, suggested the Constitution makes judges select between different views of the public good. What is your theory of judging?

10. President Obama has stated that empathy is an important quality for judges. However, Justice Sonia Sotomayor, in her confirmation hearing, disavowed the notion. What role, if any, should empathy play in judging?

11. On Monday, Senator Jeff Sessions (R) of Alabama, the panel Ranking Member, said you had “associated [your]self with well-known activist judges.” Some observers decry liberal “judicial activism,” such as the Warren Court’s expansion of accused defendants’ rights. Others criticize conservative judicial activism, such as the Citizens United opinion, which invalidated limits on corporate and union spending on political ads. Explain judicial activism and when, if ever, it is justified.

12. Some observers argue that, as dean of Harvard Law School, you barred the military from recruiting there because it discriminated against homosexuals and that you are “antimilitary.” Explain how you addressed military recruitment and whether you are antimilitary.

13. Observers lauded your attempts as dean to enhance collegiality and hire outstanding faculty, despite their political perspectives. How will these attributes serve you on the Court, whose members have diverse perspectives and often split 5-4 in hard cases?

14. If confirmed, you will be the only justice who has not been a federal appellate judge. Senator Sessions criticized your lack of judicial experience. How would you respond?

15. What are your perspectives on when the Supreme Court should overrule precedent? For instance, the 1992 Planned Parenthood v. Casey decision refused to overrule the 1973 Roe v. Wade opinion recognizing a woman’s right to choose.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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