Photo of Stephen McConnell

Last week we read a couple of online articles, including in the ABA Journal, about the unique questioning style of United States Senator John Kennedy (R- Louisiana) when it comes to federal judicial nominees. 

By now, we all know how judicial  nominees do the usual dance of saying as little as possible. Understandably, they decline to predict how they would decide specific issues.  But, too often, they wave away anything with an aroma of substance, to the point where they end up saying precisely nothing. It becomes an empty exercise. 

Senator Kennedy will fence with nominees on matters of judicial philosophy.  But he does something else; he asks specific questions. They are concrete.  There are right and wrong answers. 

For example, Senator Kennedy has asked nominees:

  • What does Article I of the Constitution  cover?  How about Article II?
  • Contrast a stay order with an injunction 
  • Explain what multidistrict litigation is. 
  • What is collateral estoppel?

Nominees either know the answers or they do not.  It is shocking how many nominees flub the answers.  (This is not quite the same thing as the nominee who had to admit he had never tried a case before a jury.  We get it. It’s getting harder and harder to get civil jury trial experience. Still, wouldn’t it be better if your trial judge had some sense of how these things really work?) 

We are not expecting perfection.  We have to admit that we could not immediately recall what Article V of the Constitution addressed (amendment). 

You’ve almost certainly seen Senator Kennedy on the news or the weekend talking head shows. He is not close to being camera shy.  He has something of a cornpone act.  At times, he sounds a bit like Foghorn Leghorn.  But he is definitely not stupid.  Far from it.  He got a magna and a Phi Beta Kappa key at Vanderbilt, was on the University of Virginia Law Review and earned Order of the Coif, and then  earned a degree from Oxford.  He was also an adjunct law professor at LSU. 

By the way, we are not suggesting that academic achievements necessarily confer virtue. In fact, there are a couple of U.S Senators with sparkling credentials – Ivy League colleges and law schools, Supreme Court clerkships – who seem utterly steeped in mendacity.  But that’s a different topic.   Let’s chat about it the next time we see each other at DRI or ACI.

Naturally there are critics of Senator Kennedy’s pop quizzes.  Some say the questions are unfair.  (We should point out that Senator Kennedy is an equal opportunity interrogator.  He tortures Biden nominees currently, but he also sunk at least one Trump nominee whose answers were weak.) A representative from the Alliance for Justice suggested that Senator Kennedy seems not to know that judges have access to law libraries. Apparently, all a judge needs to know is how to look stuff up to get the right answer.  

That’s complete balderdash.  First, we agree with Senator Kennedy that “these are the kind of questions that I would expect my students to know the answer to.”  We’d be terrified to litigate a case in front of a judge who was clueless about collateral estoppel. Moreover, not all of legal practice is open book. Sometimes immediate decisions need to be made.  “Objection, your Honor, Rule 602.”  “Huh?” Actually, what would come out of the judge’s mouth would be something equally useless, like “I’ll allow it.”

The real beauty of the Kennedy Quiz is that it tolerates no BS. That’s why we like to see similar questioning by moderators at candidate debates. Get the politicians away from their stale scripts and dumb catchphrases. Test actual knowledge. We remember Senator Fred Thompson scratching his head a while before he managed to recall the name of Canada’s Prime Minister.  But at least he got it. We’d like to ask candidates to state the amount of the national debt, list the countries bordering Ukraine, describe what product categories are the U.S’s biggest exports, explain price elasticity, etc. (In addition, we really want to know the candidate’s position on the Spring-ahead and Fall-back time changes.  The first one who proposes to ditch that idiocy will get our vote.)

(We cannot resist this brief diversion. The way we pick judges is … suboptimal.  We’re not even talking about jurisdictions where judges are elected.  Politics is a lousy means of quality control.  Long ago, when we were in law school, one of our law professors constantly referred to the German legal system as “the mind of God revealed to man.”  In Germany, people go to a school to learn how to be judges.  Maybe that’s superior. Maybe not. But they’d probably do a better job of fielding Senator Kennedy’s questions.)

Senator Kennedy’s questioning style is not merely an academic issue for us.  We try to do something similar when we take expert depositions.  Sure, we have to ask the experts about their opinions — bases, methodologies, etc. Somewhere along the way, we know we’ll run into a blizzard of nonsense and evasion.  But we always insert into our depo outline a litany of purely factual questions.  We call it the Jeopardy section of the deposition.  For example, if the expert opines that our client’s product has a defective design, we will ask specific questions about the design process.  Did you review the entire design file?  Who was in charge?  What materials did they consider?  What testing was done?  If the expert is trashing regulatory compliance, let’s see if that expert knows which people at the company and FDA were involved.  Or if an expert is rendering a specific medical causation opinion, we will get mighty specific.  

Mind you, we do not ask these questions with a gotcha tone.  Rather, we ask them in a perfunctory manner, as if we fully expect the expert to know.  If the expert does know, we casually move on and ask the next question.  If the expert does not know, we pause, as if momentarily arrested by disappointment.  Try this approach sometime.  If nothing else, the experts will lose some of their haughtiness.  Remind them who’s the boss.  Maybe it’s you.  Maybe it’s the facts.  But it’s certainly not the expert slinging half-cooked hash. 

Back to Senator Kennedy and his judicial nominee quiz.  What questions would we ask? Here are a few:

What was the holding of Marbury v. Madison?

How many times has the Constitution been amended?

What is the incorporation doctrine?

What does the eleventh amendment provide? 

What is the difference between subject matter and personal jurisdiction?

What are the requirements for federal diversity jurisdiction?

What is the difference between general and specific personal jurisdiction?

What was the holding of the SCOTUS BMS decision?

What does Article VI of the Constitution address?

How does conflict preemption work?

What is Chevron deference?

How should the court approach a Rule 702 issue as to whether an expert’s testimony is admissible?

What is the significance of the Youngstown Steel case?

What is the Rooker-Feldman doctrine?

Who was the first Chief Justice?

Okay, those last two might seem a little squirrelly.  Maybe they fall into the category of making the nominee uneasy and reminding the nominee who’s the boss. (Be grateful we did not ask about the rule in Shelley’s Case.)

What questions would you want to ask judicial nominees?  The next time we run into you, we might quiz you on that.