I was asked yesterday by the Amarillo Pioneer to comment on the Supreme Court nomination. It got me thinking about the appropriate way to interview a SCOTUS nominee. I've concluded, that like with an experienced candidate for any job, this ought to be a "working" or behavioral interview. And frankly, it ought to be "open book" with the nominee given appropriate time to consider and review the key questions, just like they would have on the court. And like any normal interview, if you don't answer the questions or waffle or have to be asked 3x, you're out. Here is my 10 Step SCOTUS Interview Process:
Step 1:
Ask Nominee to walk through their background in their own words, and explain why they believe they are qualified for this position, why they believe they are more qualified than the other candidates, and why they believe they were nominated, giving specific examples and evidence.
Step 2:
Ask Nominee to elaborate, regardless of age, since we appoint them for life, under what circumstances and how would they evaluate when they are no longer able to effectively serve, and tender their resignation, and as their cognitive abilities, like all of ours, will decline with age, how will they offset this in the time while they do serve. If I could amend this process in 1 way, I would argue for a Constitutional Amendment calling for 14 year terms or mandatory retirement age for all Federal Judges. Our founding fathers lived in a world of much lower life expectancy, and did not, in my view, envision a court where octogenarians ruled the day.
Step 3:
Pass out copies of the US Constitution.
Ask Nominee to explain their views as to the role of the Federal government, and the role of the state governments
Then starting with Bill of Rights and Amendments, then when finished starting with Article I, ask Nominee to:
1) explain their general views of what that Amendment/ article means
2) for each, give and provide an example of a time when they ruled on that clause, or if they've never ruled on that, argued concerning that clause, the arguments presented on both sides, their reasoning, the end result, and anything they'd do differently today, or might do differently if they were a SCOTUS Justice on the highest court in the land.
Step 4:
Give Nominee 7 reasonably well known split decision past cases - pulled from bipartisan discussion with other Senators - that set important precedents around the key questions of the day. Ask
1) Nominee to explain and describe each case, the issues, and what the majority and dissenting opinions were, and why they think the judges on each side chose their opinion
2) Summarize whether they would have joined the majority or dissenting opinion in that case, and why, or provide any changes they would have made to the majority opinion had they written it.
Step 5:
Ask Nominee to elaborate on 3 court cases, and 3 times in personal life, where they have taken an action or stance to protect or help someone in need, stand up for what was right, defend the Constitution, or serve justice, when the they knew doing so would, and did, have a material adverse impact on themselves personally.
Step 6:
Ask the Nominee to describe and explain their worst no win, Solomon and the baby case, what made it their worst, and how and why they ruled, and what they would do differently now, or on the Supreme Court, and what the outcome was.
Step 7:
Ask Nominee to elaborate 3 court cases where they ruled according to what they thought the law required, when they believe justice was not served, and explain if they would rule the same way today, and would rule the same way if on the Supreme Court.
Step 8:
Ask Nominee to summarize their understanding of changes in the court's precedents over the years, and provide examples of 3 times where they ruled in ways that overturned or might have seemed in conflict with prior precedents, what considerations they use in general, and used in those cases, before making a decision that might change precedent, considering that another judge who received the same vetting that they did, came to the opposite conclusion.
Step 9:
Ask Nominee to point out 5 recent SCOTUS cases where they believe the majority opinion was not correct, and how and why they would have ruled differently.
Step 10:
Ask Nominee why they want this job, to describe with whom and what discussions they had in the vetting process, and the path and circumstances that led to their nomination.
I do not believe advise and consent means rubber stamp, nor do I think that pure politics should decide the outcome. In a nation of more than 300 million amazing Americans, just because the President happened to pick you, doesn't mean I owe you my vote. Recall that Chief Justice John Marshall, the man who defined the Supreme Court, was homeschooled and did not graduate college.
Editor's Note: Neal Dikeman is a Houston businessman and the Libertarian Party's nominee for the U.S. Senate. Dikeman is facing Republican Ted Cruz and Democrat Beto O'Rourke in November.
