Ron Klain provided a memo to Bernie Nussbaum, listing questions that President Clinton should *not* ask Judge Breyer:
What is your view on the constitutionality of the death penalty?
Do you agree with Bakke v. Regents of California, or Roe v. Wade?
What test would you use to determine when an Establishment Clause violation has occurred?
How do you define the “right to privacy?”
When can race-conscious remedies be used under the civil rights laws?
Here are the questions the President *should* ask:
What guides your overall constitutional philosophy? Breyer will likely speak of “human dignity” and a need to take a non-literal view of the Constitution’s phrases.
How do you define the scope of liberty in the Constitution? Breyer will talk about the need to balance the text’s language with an expansive view of liberty.
Why have you devoted your career to the dry subject of economic regulation? Breyer will discuss how these regulatory issues touch people’s lives.
Some say that your writings suggest an over-emphasis on economics: putting a cost on lives, for example. Breyer will talk about the limits of economic analysis, and the need to make hard choices among safety options.
How does he respond to the criticism that his opinions are “bloodless”? Breyer will discuss he admiration for John Minor Wisdom, who had a similar writing style.
How do you deal with your Republican colleagues on the bench? Breyer will talk about how he goes about persuading them to join him in cases~ • You are the architect of the Sentencing Guidelines.
How do you defend them from criticism? Breyer will speak of how he “did good” by fighting “worse” versions of the Guidelines.
What are the most significant Supreme Court decisions in your lifetime? Breyer will cite a variety of cases involving civil rights and personal liberties.
Who are the great Justices in history? Breyer will cite a variety of Justices, past and present.