ConfirmThem

By Feddie Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

Here's one (with several subparts) that I personally would like to see her answer:

Ms. Miers, what are your views on the incorporation doctrine? Do you believe that the men who wrote and ratified the 14th Amendment intended for most of the amendments comprising the federal Bill of Rights to be applied against the States? If so, do you think that the "liberty" component of the Due Process Clause of that amendment is the appropriate jurisprudential foundation for incorporation; or do you instead agree with those legal scholars who believe the Privileges or Immunities Clause is the constitutional provision upon which incorporation must/should rest? On the other hand, if you believe the incorporation doctrine is a constitutional fiction, is it your view that the doctrine must be nevertheless be preserved on stare decisis grounds?

Bonus question I: Do you agree with Justice Thomas that it is time to rethink whether the Establishment Clause should be incorporated against the States? See, e.g., Elk Grove Unified Sch. Dist. v. Newdow (Thomas, J., concurring) ("I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by any sensible incorporation of the Establishment Clause, which would probably cover little more than the Free Exercise Clause").

Bonus question II: Is the right to bear arms, as articulated in the Second Amendment, an individual right, and if so should it be incorporated against the States?

Does anyone else have a suggested question for Miers? You never know who might be reading this blog.