Kerby Anderson

What questions should senators ask of Judge Brett Kavanaugh? George Will listed some constitutional questions worth asking of the judge. But as I read some of them on my radio program, I could almost see the listeners’ eyes glaze over because of the academic nature of George Will’s column. Here is my attempt to simplify some of his questions.

The Supreme Court ruled in 1958 that a law that required disclosure of the NAACP membership list was an infringement of freedom of association. The justices ruled that anonymity was necessary to shield NAACP supporters from danger. Shouldn’t the court overturn mandatory disclosure laws now used by progressive activists to target conservative individuals?

The court also ruled 5-4 that a state cannot limit by statute the number of terms that a member of Congress can serve. The majority argued that term limits create “additional qualifications” for office. But Justice Clarence Thomas dissented by saying that the Constitution only sets minimum eligibility requirements. It is silent about the state’s power to set term limits.

We always learned in school that the federal government was delegated certain powers that were enumerated in the Constitution. The rest of the powers were reserved to the states and the people. It appears that Justice Thomas was correct. If Judge Kavanaugh agrees, that 5-4 decision could go the other way, and states could set term limits that Congress will probably never set for itself.

George Will ends with a humorous question. If Congress wants a healthy workforce, then “could Congress, under its power to regulate interstate commerce, require Americans to eat their broccoli?” If not, why not? Of course, he is raising the important concern that the commerce clause has been used to justify everything from trade policy to health care policy.

These are good questions, but I am not sure too many senators will be asking them of the judge during the confirmation hearings.