25 Questions For John Roberts

Monday's NYTimes asks five people to pose five questions each they'd ask Judge Roberts if they were on the Senate Judiciary Committee.

Instupundit Glenn Reynolds asks some heavy ones:

1. The Ninth Amendment provides that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Do you believe that this language binds federal courts, or do you believe - as Robert Bork does - that it is an indecipherable "inkblot?" If the former, how are federal courts to determine what rights are retained by the people? On the other hand, if the Ninth Amendment does not create enforceable rights, what is it doing taking up one-tenth of the Bill of Rights?

2. Justice Joseph Story wrote in 1833 that "since the American Revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A and transfer it to B by a mere legislative act." Was Story wrong? Or was the Supreme Court wrong this year when it ruled in Kelo v. the City of New London that a government had the right to take property for the use of private developers?

3. Could a human-like artificial intelligence constitute a "person" for purposes of protection under the 14th Amendment, or is such protection limited, by the 14th Amendment's language, to those who are "born or naturalized in the United States?"

4. Does a declaration of war by Congress have the effect of suddenly making proper actions by the executive and Congress that would otherwise have been beyond their constitutional powers?

5. Is scientific research among the expressive activities protected by the First Amendment? If not, is Congress free to bar research based solely on its decision that there are some things we're better off not knowing?

In contrast, Clintonista Ron Klain, who directed judicial selection for the Clinton administration and was chief counsel of the Senate Judiciary Committee during the Clarence Thomas and David Souter confirmation hearings, posed exactly the sort of questions we'll expect to hear from Kennedy and Durbin:

1. Some senators have suggested that you should follow the example set by Ruth Bader Ginsburg as to what sort of questions she answered at her confirmation hearings. Here's what she said at that time regarding a woman's right to choose: "It's a decision she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human." Was she right to make such a specific and clear statement regarding a woman's right to choose, and do you agree with the substance of her statement?

2. One of your roles as chief justice would be to comment on what matters should be in the jurisdiction of the federal courts. In a radio interview in 1999, you criticized the Violence Against Women Act - a federal law that put hate crimes against women on a par with hate crimes against racial minorities. You questioned the need for a national law, saying that "conditions are different in different states, and state laws can be more relevant" because they are "more attuned to the different situations in New York as opposed to Minnesota." Why should a misogynistic attack be regarded differently in one state or another?

3. Over the past 50 years, 20 different men and women have been appointed to the Supreme Court. Recognizing that political labels are of limited value, and generalizations are generalizations, I wonder if you can identify one of these 20 jurists - just one - who you think has a view of constitutional rights that is "to the right" of your view, as that label is commonly used by legal commentators?

4. In a memo you wrote in 1981, you criticized affirmative action "preferences" based on race, calling them "objectionable." If preferences given to those born into families that have suffered past discrimination are objectionable, what is your view of preferences given to those born into the families of privilege - namely, the preferences that many universities give to the families of their alumni?

5. Chief Justice William Rehnquist held an annual Christmas celebration in the Great Hall of the Supreme Court, complete with avowedly religious carols, despite periodic objections from some of his colleagues and non-Christian law clerks. As chief justice, will you continue with this practice, and do you find it at odds with the spirit of the court's edicts regarding church and state?

Compare and contrast the two. Reynolds ask probing questions that get to the thought process and judicial philosophy of the man. Klain just fishes for headlines ... negative headlines.

Also participating:
Jean Edward Smith, a professor at Marshall University and biographer of John Marshall.
Former attorney general Dick Thornburgh.
Kathleen Sullivan, dean of Stanford Law and constitutional law prof.