More in the continuing series as The Monk answers the questions that John Roberts, in many cases, cannot. These questions are the ones Chuck Schumer wants Roberts to answer to Schumer's satisfaction.
As I noted before, in many cases ethical rules will prevent Roberts from answering and I'll try to indicate where he cannot (I disagree with Matthew Franck's statement on National Review's Bench Memos that there are no problems with any of the questions), although no ethical rules require Schumer to portray that honestly. Schumer's questions are in regular type (with coloration), my responses/comments are in bold. This lot includes some pretty dicey and specific issues
6. Is there a constitutionally protected right to privacy, and if so, under what circumstances does it apply?
Go on, search the text and find it. Keep searching. Keep digging. Found it yet? From the Supreme Court's perspective (through its cases), there is one but by and large, other than Fourth Amendment "reasonable expectation of privacy" as applied to not having your personal effects searched and seized at whim by the Government, you'll be hard-pressed to define what it is and from whence it came.
-- The word "privacy" is not mentioned anywhere in the Constitution. In your view, does that mean it is wrong for the Supreme Court to interpret the Constitution as conferring such a right?
This is a tough question for any candidate, but there are two answers: First, you can say the Ninth Amendment prevents the government from denying a right to privacy but that can create a blank check; second, you can give the "living document" or "emanating from the penumbras" argument. Neither is particularly compelling. A third option is the "unwritten law" that everyone knows -- bugger off from my private life. Jonah Goldberg has argued persuasively about expanding the acceptance of unwritten laws as norms for societal behavior without expanding them to constitutional rights.
-- Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?
Yipes! Can't you SOBs stay out of my house, you sick f--ks? The answer needs to be only in the case of a compelling state interest (criminal activity like rape -- how'd you like someone to have the defense of "but it was in my private house"? -- and other compelling interests like incest, bestiality, other heinous actions.
Specifically:
-- Do you agree with the reasoning in Griswold v. Connecticut (1965), which held that the right to privacy in the Constitution protects the right of married couples to purchase and use contraception?
No. Griswold is a logical and jurisprudential disaster. The law it overturned, however, was ridiculous on its face.
-- Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?
No twice. If you wimpy legislators ever had the stones to tackle a difficult issue, the Court wouldn't have had to legislate from the bench like this.
-- Once the right to privacy has been found - as in Griswold and Roe - under what circumstances should the Supreme Court revisit that right?
Unanswerable for Roberts because it could cause ethical problems. But if some nutter starts claiming privacy rights allow him to engage in polygamy, there's a limit to be erected there.
7. What is the proper role of the federal government in enacting laws to protect the environment?
Broad question. That's a policy issue for the Congress and the Executive to figure out; the judiciary's role is to keep them from overstepping any Constitutional boundaries. Yeah, that's a BS answer but the question is too broad. After all, the judiciary shouldn't be making decisions about the government's role, just its powers.
-- Does the Constitution provide any instruction on how Congress should balance the interests of industry against environmental interests?
No. That question is just strange.
-- Under the Constitution, how far can Congress go in imposing restrictions on people and businesses to protect the air and water?
Now Schumer is just looking for something to hang Roberts with. My answer is the Takings Clause sets limits as does the Due Process Clause (Fifth Amendment version) but the question is just too broad to answer without writing a dissertation.
-- Under the Constitution, how far can the states go in enacting laws to protect the environment, and does it matter whether there is federal legislation on the same subject?
This is a political issue, not constitutional.
Let me put this in the context of specific cases:
-- Do you believe that the Supreme Court correctly decided that the EPA has the authority to pursue industrial polluters in a state where the local authority has declined to do so, as in Alaska Department of Environmental Conservation v. EPA (2004)?
I don't know the case well, but usually if the two have concurrent jurisdiction, then either can decide to exercise that jurisdiction independent of the other.
-- Can the Clean Air Act preempt local emissions regulations, as the Court held in Engine Manufacturers Association v. South Coast Air Quality Management (2004)?
Stupid question: this is a legislative issue of whether Congress wants to pre-empt. If the question is whether Congress can do so under its Commerce Clause powers, it would cause a vast upheaval of Commerce Clause precedent to claim the Congress lacked such authority.
8. What is the proper role of the federal government in enacting laws to protect the rights of the disabled?
Political question. The man is a judge, Senator. You figure that out and he'll tell you if you're stepping on Constitutional protections of the populace.
-- Does the Constitution provide any instruction on how Congress should balance the costs to business against the government's interest in creating equal access to facilities for disabled persons?
Not directly.
-- Should federal laws mandating access to buildings for disabled people apply to both public and private buildings?
I'd say no it's not a commerce clause question (for private buildings), but this is a question that will come up time and again in the courts so Roberts should dodge it.
-- For example, do you believe that the Americans with Disabilities Act requires state buildings to be accessible to the disabled, as the Supreme Court held in Tennessee v. Lane, or do you think that sovereign immunity exempts the states?
Personally, sovereign immunity should exempt the states, but that's an issue that will come up again and again so Roberts needs to dodge it.
9. What is the proper Constitutional role of Government in enacting laws to regulate education?
Shouldn't the states be allowed to do something? Traditionally this is their baliwick.
-- How far can the Government go under the Constitution to ensure equal treatment for all students?
Not so far as to violate the Constitution. Anything more specific could force Roberts to recuse himself when this issue pops up in the future.
-- How far can the Court go to protect speech and/or prohibit violations of the establishment clause in the schools? For example, do you believe that Santa Fe Independent School Dist. v. Doe (2000) was decided correctly?
He should go into a soliloquy about the importance of free speech and decline anything more specific.
-- Does the Constitution guarantee parents the right to choose their children's education, as established in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)?
That's a broad reading, but the fact is that I don't see why a judge's policy views on this issue mean anything other than "one man's opinion".
Honestly, many of Schumer's questions are policy issues more properly addressed to nominees for political offices.
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