Does anybody know anything about her other than her vote in Ricci? Because her Ricci vote is really uninteresting – she’s a liberal who upheld the decision by a locality to take an action consistent with trying to avoid being sued for discrimination under the disparate impact standard. The standard is problematic to say the least, but (a) it’s not at all obvious to me that it’s an unconstitutional standard (as opposed to an impossible one – not the same thing); (b) pragmatically, I’m very leery of the conservative strategy of fighting overly-broad equal-protection jurisprudence by broadening such jurisprudence even more so as to police “reverse-discrimination” since such a strategy only deepens the entrenchment of the courts in our lives, and hence increases the politicization of the judiciary; and © the court didn’t need to address the constitutionality of the standard, nor is it plausible that a liberal judge would look for an opportunity to do so when not required to, nor is it plausible that, if required to, a liberal judge would look to overturn it.
Basically, if you want someone who’s eager to have the court strike down very kinds of affirmative action as violations of the equal-protection clause, you want a conservative nominee, and a particular kind of conservative nominee. The idea that anybody Obama was going to nominate was going to be that person is just silly.
So: what else do we know about her?
Things I care about:
- Does she take a more expansive view of the free exercise clause or the establishment clause of the 1st amendment (i.e., is she more likely to strike down government decisions that negatively impact the religiously observant or more likely to strike down government decisions that entangle the government with religion)? Or does she take a narrow view of both (being unlikely to strike down laws for either reason)?
- How does she see the Court’s role in policing the separation of powers? The division of power? Is she going to be deferential to Congress with respect to the scope of Congressional power? The President with respect to the scope of Executive power? Neither? Both? In what circumstances is it appropriate for the Court to be deferential to the legislative and/or executive branches, and in what circumstances is it important for the Court to be more aggressive in providing a check on their authority?
- There is a tension between writing minimal decisions in the “common law” manner, that address only what needs to be addressed and nothing more, which arrogate the least authority to the Court and create the least disruption from any one decision; and writing clarifying decisions that “say what the law is” and thereby provide greater predictability going forward both to the citizenry and to future courts in terms of precedent. How does she decide, in a given case, which way to lean?
- What did she think of Heller?
- What did she think of Kelo?
- Who is her favorite Justice no longer living? Why?
- What, in her view, is the worst decision by the Court still standing as precedent? (No, I don’t expect anyone up for confirmation to ever answer this one.)
- Does she think the “vote count” in the Court’s decisions matters for their ultimate credibility, and the credibility of the Court? Does she believe it is proper or improper to consider the closeness of a decision in terms of her willingness to overturn precedent? How willing would she be to “water down” a decision in order to achieve a larger majority, and under what sorts of circumstances?
- If, as seems likely, much of her time is spent in a tug of war with Justice Roberts, with the flag being Justice Kennedy’s vote, how does she plan to win those tugs of war? (No, I don’t expect anyone up for confirmation to ever answer this one either, but this is certainly the question that should be uppermost in liberal minds for the short term.)