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36 Questions for Elena Kagan


Supreme Court nominations are a rare opportunity for millions of Americans to watch, learn and converse about what the Court, the Constitution and the Justices mean for their way of life, their freedoms and their livelihoods.

Members of the Senate Judiciary Committee should consider asking Solicitor General Elena Kagan, who has been nominated to be an Associate Justice of the U.S. Supreme Court, some or all of the following questions.

1. Do you believe that for-profit corporations should have First Amendment political speech rights identical to those of humans?

2. If no, apart from the right to vote, in what ways do you believe corporate First Amendment political speech rights should differ from those of humans?

3. Large corporations have a lot of money, and the ability to generate a lot of revenue. Yet very rich people also have a lot of money. For purposes of First Amendment analysis, what are the consequential differences, if any, between corporations and real, live people?

4. Do you believe that electoral spending by third parties can distort the political process even in the absence of quid pro quo corruption, such that restrictions on electoral spending should be upheld under the First Amendment? Does this apply also to electoral spending not coordinated with campaigns (independent expenditures)?

5. Can independent expenditures give rise to corruption, or the appearance of corruption, sufficiently serious so that restrictions on such spending may be upheld under the First Amendment?

6. Do you believe that a strict reading of the Constitution provides for the treatment of corporations as “persons” under the law for purposes of equal protection, freedom of speech or due process of law? And, if so, what in the Constitution’s text provides a basis for this belief?

7. Do you see a problem when corporations are treated as equal participants, with every right to use their First Amendment rights to dominate public policy debates such as those that occur in state and local referenda?

8. Do you believe limits on television station ownership abridge the free speech rights of corporate broadcasters?

9. What is your view of the First Amendment rights of the listeners being paramount to those of the broadcasters as articulated by the Court in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969)?

10. In 1986, in Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1 (1986) the Supreme Court (5 to 3) struck down a state regulation as violating a utility company’s “right of conscience” under the First Amendment. What makes the case particularly unsettling is its disconnectedness to opinions past and future. As Justice Rehnquist observed in his lengthy dissenting opinion in the case, “the two constitutional liberties most closely analogous to the right to refrain from speaking – the Fifth Amendment right to remain silent and the constitutional right of privacy – have been denied to corporations based on their corporate status.” Do you think it makes sense to attribute a right of conscience to a commercial corporation?

11. Would any trade agreement, such as GATT, NAFTA, or CAFTA ever require Senate ratification as a treaty?

12. Does the President have complete discretion to determine whether an international trade or other agreement must be submitted to the Senate for two-thirds treaty approval? If not, what are the criteria that determine when an international agreement must be submitted to the Senate for two-thirds treaty approval?

13. Are there limits on Congress’ power to strip federal courts of jurisdiction over a particular issue? If so, what are such limits?

14. Do you believe victims of defective products that meet federal standards should be limited from recovering damages from the manufacturers of the defective products?

15. Do you believe Congress should federalize and pre-empt state products liability common law in any or all sectors?

16. Plaintiffs’ trial lawyers have been blamed by their corporate critics for all sorts of problems with the economy and legal profession. Do you believe that those representing injured persons in product liability and medical malpractice cases are harming America?

17. So-called tort-reform is aimed at restricting the amount of non-economic damages, such as pain and suffering, a party can receive. Are you concerned that this interferes with the traditional role of juries and judges to find facts and mete out appropriate justice?

18. Do you believe the use of the government contractor defense should be limited in nonmilitary procurement? If so, how?

19. Some people say the Ninth Amendment can play no substantive role in protecting rights, that it’s merely a statement of principle or reminder of limited government. Do you agree?

20. A number of legal scholars argue that the 11th Amendment has been interpreted by the Court to shield states from liability for wrongdoing in a way that blatantly contravenes the original intention of the Amendment. Are you familiar with that scholarship and do you find it persuasive?

21. In what circumstances, if any, is it appropriate for a contractual arbitration clause to contract away substantive contract law, tort, or statutory rights? For instance, can an arbitration clause require arbitration of a worker’s Title VII rights and at the same time limit the worker’s compensatory damages to $200,000? Can that same clause require the loser to pay the winner’s attorney’s fees? Can that clause require that the parties to arbitration bear their own attorney’s fees?

22. Describe the presumption against preemption of state law. Does it apply in some or all instances where federal law is said to preempt state law?

23. Is the presumption against preemption of state law (by federal law) similar to the plain statement rule that demands that Congress speak with unmistakable clarity if it wishes to override the states’ sovereign immunity? If the presumption against preemption is not similar to the plain statement rule, explain how it is different?

24. How is the presumption against preemption applied in cases where federal regulatory law (regulating, for instance, drugs, boats, pesticides, motor vehicles, and the like) is said to preempt state tort law that provides monetary remedies to compensate for injuries caused by a product that the federal government regulates?

25. Do you believe Congress should pre-empt the state-law-based medical malpractice system?

26. What are your views on the “American rule” as opposed to the English rule under which the losing party in litigation generally pays the winner’s costs, including attorney’s fees?

27. What has been your reaction or views on Congressional funding levels for federally funded legal services programs over the last two decades? Should government be responsible for funding representation for poor people in civil litigation where important property or liberty interests are at stake? Or should that be mainly or entirely a private function?

28. Some scholars and judges believe that “Originalism” is the only principled method of constitutional interpretation. Do you agree?

29. Do you believe that a declaration of war by Congress is Constitutionally required for the United States to engage in war?

30. Does a Congressional delegation of the war-making discretion to the President in the form of a war resolution meet the test of Article One, Section Eight of the Constitution?

31. Is there a need to amend our open government laws to make the President subject to them in whole or in part? Would such amendments be constitutional?

32. Do you believe arguments before the Supreme Court should be televised in the way C-SPAN televises Congressional deliberations?

33. From both a legal (constitutional) and practical perspective, what is your view of the trend in the federal judiciary toward releasing more of its opinions in “unpublished” form, i.e., where the relevant court accords no precedential effect to the decision for other cases?

34. Should federal judges attend seminars which are funded by private corporations (or by foundations that are funded by such corporations) that have matters of interest to the corporations before the courts?

35. Do you believe a government attorney, in a subordinate position, should be forced (under penalty of discharge) to work on a case or argue a position that he or she believes is illegal, unconstitutional or unethical? Or should government lawyers have a “right of conscience” like other professionals?

36. What kinds of participation in civic life may federal judges continue to be involved in once they assume their judicial positions?

RALPH NADER is the author of Only the Super-Rich Can Save Us!, a novel.





Ralph Nader is a consumer advocate, lawyer and author of Only the Super-Rich Can Save Us! 

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