Tests for the Next Justice

E.J. Dionne writes in Monday's Post about the coming nomination fight. He urges that we not get involved in catch phrases, however, I believe such a debate might be helpful.

I would like to know from nominees what they believe "judicial activism" means, both from their own point of view and how various actors use it. More specifically, I would like to know their opinion on the rights of state minorities to challenge and overcome the power of state majorities in federal court when those majorities deny the minority their rights to equal protection under the law.

There is a right and historical way to answer this. It would be helpful if the nominee had read Gary Wills' book - A Necessary Evil, as well as Garrett Epps' Democracy Reborn. Knowledge of this history is important when contradicting the originalism of Justices Scalia and Thomas, since both works make clear that Madison, in his original House passed version of the Bill of Rights and the congressional Radical Republicans who drafted the 14th Amendment both had strong ideas about using the federal government to limit the rights of state majorities when they violated the rights of minorities.

I would have a few other questions, which of course the nominee could not answer in committee, but would ask anyway as the mention of them might prove instructive to future delibarations anyway:

On the issue of abortion, could the Congress use its enforcement powers under the 14th Amendment to set an earlier benchmark for the legal recognition of the unborn - say viability (when the lungs develop) or assisted viability - or even the start of the fetal heartbeat or some later point when natural miscarriage is rare? Didn't the Congress in fact do that when they passed the Partial Birth Abortion Act - or were they simply refining the definition of birth under the provisions of the 14th Amendment to include feet first?

On the issue of marriage, is the threshold question whether there is a rational basis for finding that the family of origin has more rights vis-a-vis a same sex spouse than they do vis-a-vis an opposite sex spouse? Was Scalia right when he stated that by protecting consensual adult private same sex relations (watching out for filters here), the Court obliterated any rational basis for outlawing gay marriage?

Of course, these are just the hot button issues. They will represent exactly two cases the Court will decide. The victory for the Republicans is that there will be much focus on these issues while the real work of the Court and the Justice Department will be coping with the undoing of the Bush/Cheney Administration's economic and international policies.

Frankly, I would really like to know the nominees opinion on putting Cheney, et al, in the docket for ordering torture - either here in the United States or in the Hague if the United States Government refuses to act.