8 BETTER QUESTIONS

The hearings for Supreme Court nominee Ketanji Brown Jackson were, again, a hyperpartisan farce. Members of the Senate Judiciary Committee preened, postured and hurled red meat at their supporters, but there was little discussion of the problems facing the courts that lie well outside the culture wars.

It doesn’t have to be this way. Here are eight nonpartisan questions I’d like to see posed to future Supreme Court nominees:

1. In recent years, legal scholars and court watchers have pointed out that Supreme Court justices have gotten important facts wrong in critical cases — such as the accuracy of drug-sniffing dogs, the recidivism rate of sex offenders and the pervasiveness of voting-rights violations. The problem is that there’s no mechanism for the court to correct itself, which means these rulings persist as controlling case law despite obvious mistakes. So what should the Supreme Court do when it becomes apparent the facts undergirding a majority opinion were clearly in error? What would you do if you discovered you had written an opinion — especially a majority opinion — that turned on facts you later discovered to be false?

2. This brings up a larger issue with courts in general: an unwillingness to admit their own mistakes. One good example is forensics. Despite numerous scientific studies showing that several fields of forensic analysis accepted by the courts for decades have no basis in science, the courts have been extremely reluctant to admit they were wrong and revisit convictions involving those fields, even at the expense of justice. So how can we encourage the courts to act with more humility? How can we encourage them to correct their mistakes?

3. When the Supreme Court is asked to interpret a law, it often looks to the intent of lawmakers. But as a number of congressional hearings on tech policy have demonstrated, the members of Congress who write and vote on our laws often don’t fully grasp (to put it mildly) the subject matter those laws address. Can you envision a scenario in which you would need to consider that possibility when evaluating a statute?

4. On a range of issues, from qualified immunity for police and other government officials to absolute immunity for prosecutors to federal habeas corpus petitions, we’ve often seen the argument that to recognize and enforce certain rights would overwhelm the courts with lawsuits and petitions. But there is no disclaimer in the Bill of Rights that our rights are only guaranteed if there are sufficient resources to enforce them. When, if ever, do you think the potential burden on courts should be a factor when deciding whether to recognize or enforce a particular right?

5. Similarly, courts have considered the burden on governments when deciding defendants’ rights to confront prosecutors’ forensic experts, as well as the aforementioned issues of absolute and qualified immunity and federal habeas rights. Should the burden on state, local, or federal governments ever be a factor when deciding whether to recognize or enforce a particular right?

6. Speaking of burdens, legal scholars warn that the federal courts are overworked, mostly because Congress has failed to create new federal judgeships to keep up with increases in population and the increasing complexity of federal law. Do we need more federal judges?

7. Most people think that when an issue comes before a criminal court, the prosecution makes its arguments, the defense makes its arguments, and the judge then carefully considers both, reaches a decision, and writes an opinion explaining his or her decision. But in numerous cases in some parts of the country, instead of writing their own opinions, judges simply have put their name on the prosecution’s brief and adopt it as their opinion, verbatim. Some judges have done this before the defense has even filed its own brief on the matter, which of course means they never bothered to consider the opposing side. Under current law, there is little the federal courts can do about this. Does this seem fair or just to you?

8. Federal judges are appointed for life. This is to insulate them from political pressure. But life tenure comes with its own set of problems, including the possibility that a judge or justice may refuse to step down despite being mentally or intellectually unfit for the bench. Currently, it is basically left to the justices themselves to decide when they should retire. Congress could presumably impeach, but that seems unlikely to ever happen. Should there be a process by which some body or even other justices could deem a Supreme Court justice mentally unfit for the bench? Is such a process even possible?

These questions aren’t about culture war issues, and aren’t amenable to posturing and demagoguery. But they might elicit answers that tell us something substantive about how a nominee would approach the job.

is on Twitter, @radleybalko.