Questions to Ask Supreme Court Nominees
For civics and government students preparing a mock confirmation hearing, and for citizens and reporters following a real one who want to know what a senator should be asking. The questions are put to the nominee directly and grouped by what a committee wants to learn: judicial philosophy, precedent, the nominee's own record, the limits of government power and the rights of individuals, ethics and recusal, and finally the questions nominees decline to answer and how to ask around them. Each has a note on what a good or a worrying answer sounds like, and all of it assumes the United States Supreme Court, so for another country's top court, check first how its judges are chosen.
The questions
Each question, and why to ask it
Philosophy
How would you describe your judicial philosophy in a few sentences?
Why ask it
Hearings tend to open close to here, and the label the nominee picks matters less than what follows it. A good answer names a method, such as starting from the text or from the purpose behind it, and admits where that method runs out. If all you get is "I follow the law", ask what they do when the law is unclear, since unclear cases are the ones that reach this court.
When the words of the Constitution do not settle a case, what do you turn to next?
Why ask it
The order of the list is the answer: original meaning, history and tradition, precedent, purpose, consequences. Write the sequence down as they give it. You can hold it against one of their own opinions when you reach the questions on their record.
Does the meaning of the Constitution change over time, or only the facts it is applied to?
Why ask it
This is the argument between originalism and a living Constitution with the labels taken off, which helps, because nominees tend to resist the labels. A careful answer separates a fixed principle from a new application, such as freedom of the press applied to a website. Press for one example where that distinction changed who won.
When is it right for unelected judges to strike down a law passed by elected lawmakers?
Why ask it
Activism is the charge each side makes against the other's judges, so leave the word out and ask for the test. A good answer says how clear the conflict with the Constitution has to be before a law falls, and offers one law the nominee thought unwise and would still have upheld. If every example of restraint happens to favor the same side, say so and ask for another.
Is a judge an umpire, or is there more to the job than calling balls and strikes?
Why ask it
The umpire comparison was made at a past hearing, and nominees since have been asked whether it holds. A thoughtful reply grants that close cases call for judgment and still insists that judgment has limits. Total agreement with no qualification suggests someone who has not thought about the hard cases or would prefer not to discuss them.
How do you read a statute when its text points one way and its evident purpose points the other?
Why ask it
A large share of the Court's work is reading laws passed by Congress, not the Constitution, so this can predict more votes than the famous questions do. Listen for whether committee reports and floor debate count for anything with them. A nominee who says the text always wins should be able to tell you what happens when the text produces an absurd result.
What part, if any, should a judge's own life experience play in deciding a case?
Why ask it
Nominees tread carefully here because any answer can be recast as bias. The strong version separates understanding how a ruling lands on people from letting sympathy choose the winner. Ask for a time their background let them see something the briefs had missed.
Should the practical consequences of a ruling affect how you decide it?
Why ask it
Some judges treat consequences as none of their business and others as part of reading a law sensibly. Whichever they say, describe a case where their stated method leads somewhere chaotic and watch whether the method bends. A bend is not a failure, but they should be able to say when it is allowed.
Which justice, living or dead, would you most like to be compared with, and where do you disagree with them?
Why ask it
The name stands in for a whole approach, which is why nominees choose it with care. The second half is the real question. Someone who cannot name a single disagreement has offered you a mascot, not a model.
Precedent
Beyond believing a decision was wrong, what would you need to see before voting to overturn it?
Why ask it
Everyone at a hearing says they respect precedent, so the answer only starts to mean something after the word "wrong". The usual list covers how badly the decision was reasoned, whether courts have been able to apply it, who has relied on it and what has changed since. Ask which of those counts most with them, because a nominee who ranks nothing has recited the standard and kept back their view of it.
Was Brown v. Board of Education correctly decided?
Why ask it
Supreme Court nominees have generally said yes to this one while declining the same question about other cases, which makes it a baseline. Do not stop at the yes. Ask how the method they described earlier arrives at that result, because some approaches get there more easily than others and the nominee knows it.
Can you name a decision of the Court that you think was wrongly decided, and say why?
Why ask it
The safe picks are cases the Court itself later repudiated, Plessy v. Ferguson and Korematsu among them. Even a safe pick tells you something if the nominee explains what was wrong with the reasoning and does not stop at condemning the result. A refusal to name any case at all deserves a follow-up on why.
Are some precedents so settled that they are beyond reconsideration?
Why ask it
The term "super-precedent" has come up at past hearings, and what a nominee puts in that category, or leaves out of it, gets read closely afterward. Expect a short list and a careful definition. Then ask what test put a case on the list, since the same test applies to the cases they did not name.
Does a decision interpreting a statute deserve more protection than one interpreting the Constitution?
Why ask it
The usual argument is that Congress can correct the Court's reading of a statute by passing a new law, while a constitutional ruling can be undone only by amendment or by the Court itself. A nominee who accepts that should be readier to revisit constitutional cases, so ask whether they follow the logic that far. Because it names no case, they have no ground to decline.
As a lower court judge, did you ever have to follow a precedent you disagreed with, and what did you write?
Why ask it
A judge on a lower court is bound by the courts above, so the interesting part is how they handled it: in silence, with a separate opinion asking for the rule to be revisited, or by reading the precedent as narrowly as it would go. For a nominee who has never been a judge, ask instead about advice they gave that ran against their own view of the law.
What is the difference between narrowing a precedent and overturning it?
Why ask it
A decision can be left standing in name while later cases shrink it to very little. Candid nominees admit the line is thin, and the ones who deny it can be asked for an example of a narrowed case that still does real work. A student senator can ask this without knowing a single case name.
Record
What in your career has prepared you for this Court, and what part of the work would be new to you?
Why ask it
The first half invites the career summary, so let it run briefly and spend your time on the second. Trial judges, appellate judges, prosecutors, defenders, professors and government lawyers each arrive missing something, whether that is criminal trials, constitutional cases or deciding as one of nine. A nominee who names the gap and says how they would close it is more convincing than one who claims a perfect fit.
Which of your opinions or writings best shows how you think, and why that one?
Why ask it
What they choose is how they want to be judged. If you can guess the choice, read it beforehand and arrive with the passage you would challenge. A nominee with no judicial opinions will point to a brief or an article, and then it matters whose view the document expressed.
Is there an opinion, brief or article of yours that you would write differently today?
Why ask it
Any long career has one. A specific answer with a reason attached suggests a person who can change their mind when colleagues push back. "I stand by all of it" is hard to credit from someone with a long paper trail.
Tell us about a ruling of yours that a higher court reversed. Who had it right?
Why ask it
Reversals are public, so choose one in advance and name it if the nominee stays general. The best answers accept the correction and can still explain the original reasoning without relitigating it. Be wary when the blame lands on the lawyers or on the record they were given.
When you argued a position for a client, how much of it should we take as your own view?
Why ask it
Nominees who worked as advocates say, fairly, that a lawyer speaks for the client. Test it by asking whether they ever turned down a case or refused to make an argument, and why. A brief is not a confession, but an article under their own name is theirs to defend.
You have criticized a decision of this Court in your own writing. Does that criticism still stand?
Why ask it
Fill in the real article or speech, with its date and a quoted line, or the nominee will answer a milder version of what they wrote. They will probably distinguish a scholar's freedom from a judge's duty. Follow by asking whether someone relying on that decision has reason to worry.
Tell us about a case where you ruled against the side you personally sympathized with.
Why ask it
This is the standard way to show impartiality, and most nominees arrive with an example. Weigh it by what it cost them. Ruling against a sympathetic party under a clear law is easy, while a ruling that drew criticism from their own allies shows more.
In your divided cases, could someone predict your vote just from who the parties were?
Why ask it
Bring your own tally if you ask this: how often, in divided cases, they sided with employers or workers, prosecutors or defendants. The nominee can fairly object that the law decided each case and the party did not, so have two or three specific rulings ready to discuss. Reporters will find this the most checkable question on the page.
Power and rights
Is a president bound to obey an order of the Supreme Court, even one the president believes is wrong?
Why ask it
A plain yes is expected, and anything hedged is news. The harder follow-up is what a court can do when an order is ignored, which has no comfortable answer and shows how the nominee thinks about the Court's dependence on the other branches.
When can a president act without authorization from Congress, and where does that power run out?
Why ask it
Many nominees reach for the framework from the steel seizure case, under which a president's power is strongest with Congress's backing and weakest against its express will. That is a fair place to start and a poor place to stop. Give a concrete setting, such as spending or an emergency declaration, and see whether the framework yields an answer.
Is anyone above the law, including the president who nominated you?
Why ask it
Some form of this comes up at hearing after hearing so that the answer is on the record. Follow it with something narrower: can a sitting president be made to hand over documents or testify, and does that change after leaving office? The law on presidential immunity has moved, so read where it stands before you ask, and expect the nominee to stop at describing it.
What limits does the Constitution place on what Congress can regulate?
Why ask it
Mock senators tend to forget that the legislature's power gets tested too. Look for an answer that works through the power over commerce and the power to spend, with an example of a law that would go too far. If the nominee can describe limits on only one branch, you have learned which way they lean.
How much should a court defer to a federal agency's reading of the law it administers?
Why ask it
The rules on this have shifted in recent years, so check where the law stands before the hearing and build the question around that. Beneath the doctrine is a lasting disagreement about who fills the gaps Congress leaves, judges or the agency with the technical staff. A statute that is truly ambiguous on a scientific point makes a good test case.
When may the federal government override a state, and when must it leave the state alone?
Why ask it
Answers on federalism hold steady in the abstract and wobble by issue. Ask twice, with one example that pleases each party, and see whether the principle survives the change of subject. A nominee who notices the pairing and takes it on directly is giving you a real answer.
When should the Court refuse to decide a dispute between the other two branches at all?
Why ask it
Doctrines such as standing and the political question rule keep some fights out of court entirely. A nominee who leans on them is describing a modest court, and also one that may leave a wrong without a remedy. Ask for an example of a dispute they think no judge should touch.
When is it acceptable for the Court to decide an important question on its emergency docket, without full briefing or argument?
Why ask it
Because this is about procedure and not outcomes, a nominee has little excuse to decline. Orders issued this way have been criticized for arriving with almost no explanation. A good answer says when a short unsigned order will do and when the public is owed reasons.
Does the Constitution protect rights that it does not list?
Why ask it
The disputes over privacy, abortion, marriage and decisions within a family all rest on this. Nominees usually agree that some unlisted rights exist and then decline to say which. So ask about method: how would they tell a protected liberty from a judge's own preference?
What kinds of speech can the government punish, and how do you tell where protection ends?
Why ask it
The settled categories come quickly: threats, incitement, defamation. Move to the edges, such as a student's post made off campus or a platform's decision to take something down, and ask whose speech is at stake. The answer to trust is one that protects speech the nominee plainly dislikes.
How should a court handle a conflict between religious liberty and a law that applies to everyone?
Why ask it
The two religion clauses pull in different directions, and nominees like to state both and stop there. Ask which way they lean when accommodating one person puts a cost on someone else. Keep it on doctrine and off the nominee's own faith, since the Constitution rules out a religious test for office.
When the government treats groups of people differently, how closely should a court look at its reasons?
Why ask it
It invites the nominee to explain the levels of scrutiny in plain words, which suits a classroom audience. What matters is which classifications they think deserve the hardest look and why. If the answer sounds recited, ask about a group the existing categories do not clearly cover.
How should a court decide whether a gun regulation is consistent with the Second Amendment?
Why ask it
This test leans on history more than most, which makes it a live demonstration of the philosophy answers. The nominee will not rule on a particular law but can say how close a historical comparison must be, and what a judge does when the record is thin or points both ways. Read the Court's most recent decision on the subject first, since the approach has been revised more than once.
How do protections written for another era apply to technology nobody then imagined?
Why ask it
Phone location data, speech on platforms and surveillance tools are the usual examples. The reply should connect to what they said about philosophy: one judge reasons by analogy from the old rule, another from its purpose. In both cases they should arrive somewhere and not rest on "that is a difficult question".
What is the Court's role in protecting the right to vote and the fairness of elections?
Why ask it
Election cases bring the Court closest to politics, and a nominee will not discuss a live dispute. They can discuss how much room legislatures get in setting election rules and whether courts should step in shortly before a vote. Vagueness on both points is an answer in itself.
Ethics
When would you step aside from a case, and who should make that call?
Why ask it
Recusal at the top court has largely rested on each justice's own judgment, so look up how it works at the time of your hearing. Concrete triggers make a good answer: a financial stake, a relative involved, earlier work on the same matter. The nominee should also reckon with the fact that nobody fills in for a justice who sits out.
Are there cases from your earlier work, or involving the president who nominated you, that you would recuse from?
Why ask it
Here is the specific version, and nominees have sometimes made commitments on it during the hearing. Bring a list of former clients, cases they ruled on in a lower court and matters they handled in government. "I would consider it at the time" is the stock reply, so ask what the considering would consist of.
How would you handle a case in which your spouse, a close friend or a former colleague had a public stake?
Why ask it
Family and friendship do not stop at the courthouse door, and the hard cases are the ones no rule squarely covers. A described process, such as getting outside ethics advice, is better than an assurance that it will never come up. Keep the question general, because a classroom hearing should not put a real person's family on trial.
Should the justices be bound by an ethics code that someone other than themselves can enforce?
Why ask it
Who checks the highest court is an open argument, and nominees usually say it is for the Court or Congress to work out. Find out what code applies now before you ask. Then push for what they would do personally whatever the rules turn out to be: what they would disclose, and whose advice they would seek.
What gifts, travel or hospitality would you accept as a justice, and what would you disclose?
Why ask it
Ask for their own rule and not for a comment on a colleague, which they will refuse to give. A line stated in advance, such as nothing from anyone with business before the Court, is a strong answer. A promise to follow the rules leaves you asking which rules.
Should a sitting justice give paid speeches, appear at political events or sign a book deal?
Why ask it
Since it concerns their own future conduct, nominees speak more freely on this than on most things. Take the items one at a time, because lumped together they earn a single sentence about propriety. Appearances before groups with a stake in pending issues are the item to dwell on, and teaching is the one most will defend.
Did anyone, at any point in this process, ask how you would rule on a case or an issue?
Why ask it
It is asked so that the denial is on the record and under oath. Expect a flat no. More can be learned from who they met during the selection and what those conversations covered instead.
Would you support cameras in the Supreme Court's courtroom?
Why ask it
Find out first what the public can already hear or watch, since the arrangements for audio have changed over the years, and ask about the step beyond that. Nominees have sometimes sounded more open at the hearing than they did once on the Court, so ask what might change their mind after they are seated. The stakes are low enough that a student senator usually gets a straight reply.
Off limits
Where do you draw the line between questions you can answer here and questions you cannot?
Why ask it
Put this near the start of your own round, even though it sits in the last group on this page. Once the nominee has stated a rule, every later refusal can be held up against it. The rule you will usually hear is no forecast of how they would vote on an issue likely to come before the Court.
If you can tell us Brown was right, why can you not tell us whether other landmark cases were?
Why ask it
This is the standing objection to the nominee's rule, and they will have rehearsed for it. The common reply is that a few cases are beyond live dispute while others are still being litigated. Ask who decides which is which, and whether the list has changed during their career.
When you call a decision settled law, are you saying you would not vote to overturn it?
Why ask it
"Settled" can mean only that a decision is the law today, which is true of every precedent and promises nothing about tomorrow. Nominees know the phrase is heard as reassurance, so ask which meaning they intend. If they will not say, write down that the word was a description and not a commitment.
Without saying how you would vote, can you set out the strongest argument on each side of that issue?
Why ask it
After a refusal, this is the best tool a questioner has. It asks for analysis and no commitment, so a nominee who will not even describe the arguments is being more guarded than their own rule requires. In a mock hearing, give the nominee credit for a fair statement of the side they are assumed to oppose.
Have you ever told anyone, in writing or in conversation, what you think of that decision?
Why ask it
Asking about the past is legitimate where asking for a forecast is not, and nominees have been asked whether they ever discussed a famous case at all. A flat "never" from someone with decades in the law strains belief, and you can say so. If you already hold the article or memo, skip this and use the Record question that quotes it back.
How do you keep your personal, moral or religious convictions from deciding a case?
Why ask it
Senators ask this in place of the question that will not be answered, which is what those convictions are. Good replies describe a practice, such as writing out the other side's best argument or checking whether the ruling would hold with the parties reversed. If you are told convictions never intrude, ask how they would know.
Should justices serve fixed terms, or should the number of seats on the Court change?
Why ask it
Expect the nominee to decline on the ground that this is a policy choice for Congress and the public, and that is a reasonable refusal. What you learn is in the reasons given for staying out. One who answers anyway has shown you where they put the line between law and politics.
What should the Senate and the public be able to learn about you from this hearing?
Why ask it
Save it for the close. After hours of declining, the nominee has to say what the process is for. Set the answer beside what you actually learned, and use the gap in your vote or your write-up.
Questioning a nominee, in a classroom or from the press table
Practical guidance for the conversation itself
Before the hearing
Read the record before you write a question
Opinions, articles, speeches, old briefs and any written questionnaire the nominee has filed are the raw material. A question that quotes the nominee's own sentence back to them is far harder to slide past than one about their philosophy in general. Ten pages of their writing will improve your questions more than any list, including this one.
Know what will not be answered
Nominees decline to forecast how they would vote on issues that could reach the Court, on the ground that a judge should not prejudge a case or appear to bargain for the seat. Plan around that. Method, past writing, decided cases and their own conduct are open, and the Off limits group shows how to work at the edge of the rule.
One point per question
Turns are timed, and how long each one runs differs from committee to committee and classroom to classroom. A question in three parts gets its easiest part answered at length. Ask one thing, wait, then ask the next.
Write the follow-up first
Under each question, note the answer you expect and the question you will ask when you get it. The first answer is the rehearsed one. The second is where the nominee has to think, and it is the one worth your time.
Outside the United States
This list assumes a nominee chosen by a president and questioned in public by senators. Other countries pick their top judges through commissions, votes in parliament or appointments with no public hearing at all. Look up how it works where you are, and who, if anyone, gets to put questions like these on the record.
Running a mock confirmation hearing
Cast the room
You need a nominee, a chair, and senators divided into two sides. The nominee can be a past nominee played from the real record, or an invented one with a one-page biography and three short sample opinions written by the teacher. Spare students make good reporters, who write up the hearing afterward and keep everyone honest about what was said.
A running order that fits one class period
- 1The chair opens and states the time rules.
- 2One senator from each side gives a one-minute opening statement.
- 3The nominee makes a two-minute statement: who they are and how they see the job.
- 4First round: each senator gets a fixed turn, alternating sides, with the chair keeping time.
- 5Second, shorter round for follow-ups on whatever the first round left open.
- 6The committee votes, and each senator gives one sentence of reasons tied to an answer they heard.
Divide the topics
Give each senator one of the groups on this page, so the hearing covers philosophy, precedent, record, power, rights and ethics, and the nominee is not asked about the same case six times. Power and rights is the longest group and splits cleanly in two, with the questions on the branches for one senator and the questions on individual rights for another. Senators on the same side should compare notes beforehand, as real ones do.
Prepare the nominee properly
The nominee has the hardest part. Hand over the record several days ahead and let them rehearse with a friend playing a hostile senator. Declining a question politely, with a reason, takes practice, and a nominee who can do it makes the whole exercise better.
Grading it
Mark senators on their follow-ups and their use of the record, and the nominee on staying consistent from the first answer to the last. Which side seemed to win is the least useful thing to grade.
Reading the answers
Three kinds of non-answer
The principled refusal names an issue that may come before the Court. Accept it and move to method. The restatement describes what the law currently says without a view on it, so ask whether they agree with what they just described. The long answer uses up your time: interrupt politely and repeat the question in one line.
Hold the answer against the page
What a nominee says in the chair should match what they wrote when nobody was watching. Where it differs, ask which one is their view. A change of mind is respectable if they can say what changed it.
Method over outcome
A nominee's view on one case tells you about one case. Their method tells you about cases nobody has thought of yet. When they describe it, ask how the same method handles a dispute that cuts the other way politically.
If you are watching and not asking
Reporters and viewers can keep a simple log: the question, whether it was answered, declined or talked around, and the reason given. Check too whether written questions and answers are published after the hearing ends. They get less attention than the live exchanges and are sometimes more specific.
Mistakes senators make
The speech with a question mark on the end
A four-minute statement followed by "do you agree?" teaches the room about the senator. If you want to make a point, make it in your opening statement and spend your round on questions.
Demanding a promise
Asking a nominee to commit to a vote is the one request they have to refuse, and a nominee who agreed would be criticized for it from every side. Ask how they would reason, not what they would decide.
Trivia and trapdoors
Quizzing a nominee on the year of a case or the number of an amendment shows memory and little else. A trap built on a half-quoted sentence usually backfires once the nominee reads out the full passage.
Going after the person
Keep to the record and to conduct in office. Faith, family and rumor are poor material for any hearing and have no place in a classroom one, particularly when a student is playing a real person.
Treating every refusal as a dodge
Some refusals are the right answer. Judge the reason given and whether the nominee applies it evenly to questions from both sides of the room.