us-supreme-court natural-law
Has a question on natural law ever been asked of a U.S. Supreme Court nominee in a confirmation hearing?
<p>Has natural law ever been asked of U.S. Supreme Court nominee in a confirmation hearing?</p>
<p>Whether or not a candidate for the U.S. Supreme Court believes there is natural law or what his thoughts of its role in human law are would pertain to his judicial philosophy, so it seems such a question would be asked of him.</p>
<hr>
<p><sup> <a href="http://attalus.org/info/republic.html" rel="nofollow noreferrer">Cicero <em>De Republica</em></a> 3.22.33 </sup></p>
<blockquote>
<p><sup>There is a true law, a right reason, conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil. Whether it enjoins or forbids, the good respect its injunctions, and the wicked treat them with indifference. This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation. Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice. It needs no other expositor and interpreter than our own conscience. It is not one thing at Rome and another at Athens; one thing today and another tomorrow; but in all times and nations this universal law must forever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God himself is its author, its promulgator, its enforcer. He who obeys it not, flies from himself, and does violence to the very nature of man. For his crime he must endure the severest penalties hereafter, even if he avoid the usual misfortunes of the present life.</sup></p>
</blockquote>

<p><strong>Yes</strong></p>
<p>In 2010, on the last day of her testimony before the Senate Judiciary Committee,
Justice Elena Kagan, was asked “Do you believe it is a fundamental, pre-existing
right to have an arm to defend yourself?,” by Senator Tom Coburn of
Oklahoma.</p>
<p>When Kagan began to answer by stating that she “accept[ed]” the Supreme Court’s decision in District of Columbia v. Heller, which held that the Second Amendment guarantees an individual right to keep and bear arms, Coburn interrupted to clarify that he was not asking whether she believed the right to be protected by the Constitution, but rather whether she considered it to be a “natural right.”</p>
<p>“Senator Coburn,” replied Kagan, “to be honest with you, I don’t have a view of what are natural rights independent of the Constitution.”</p>
<p>The full exchange is as follows:</p>
<blockquote>
<p>Coburn: Do you believe it is a fundamental, pre-existing right to have
an arm to defend yourself?</p>
<p>Kagan: Senator Coburn, I very much appreciate how deeply important the
right to bear arms is to millions and millions of Americans. And I
accept Heller, which made clear that the Second Amendment conferred
that right upon individuals, and not simply collectively.</p>
<p>Coburn: I'm asking you, Elena Kagan, do you personally believe there
is a fundamental right in this area? Do you agree with Blackstone [in]
the natural right of resistance and self-preservation, the right of
having and using arms for self-preservation and defense? He didn't say
that was a constitutional right. He said that's a natural right. And
what I'm asking you is, do you agree with that?</p>
<p>Kagan: Senator Coburn, to be honest with you, I don't have a view of
what are natural rights, independent of the Constitution. And my job
as a justice will be to enforce and defend the Constitution and the
laws of the United States.</p>
<p>Coburn: So you wouldn't embrace what the Declaration of Independence
says, that we have certain God-given, inalienable rights that aren't
given in the Constitution that are ours, ours alone, and that a
government doesn't give those to us?</p>
<p>Kagan: Senator Coburn, I believe that the Constitution is an
extraordinary document, and I'm not saying I do not believe that there
are rights pre-existing the Constitution and the laws. But my job as a
justice is to enforce the Constitution and the laws.</p>
<p>Coburn: Well, I understand that. I'm not talking about as a justice.
I'm talking about Elena Kagan. What do you believe? Are there
inalienable rights for us? Do you believe that?</p>
<p>Kagan: Senator Coburn, I think that the question of what I believe as
to what people's rights are outside the Constitution and the laws,
that you should not want me to act in any way on the basis of such a
belief.</p>
<p>Coburn: I would want you to always act on the basis of the belief of
what our Declaration of Independence says.</p>
<p>Kagan: I think you should want me to act on the basis of law. And that
is what I have upheld to do, if I'm fortunate enough to be confirmed,
is to act on the basis of law, which is the Constitution and the
statutes of the United States.</p>
</blockquote>
<p>See <a href="https://www.washingtonpost.com/wp-srv/politics/documents/KAGANHEARINGSDAY3.pdf" rel="nofollow noreferrer">Transcript</a></p>

<p>Yes, in Clarence Thomas's 1991 confirmation hearing, <a href="https://books.google.com/books?id=1JFPuQK7iNEC&amp;pg=PA221#q=%22natural%20law%22" rel="nofollow noreferrer">&quot;natural law&quot; was discussed hundreds of times</a>.</p>
<p><a href="https://www.c-span.org/video/?c4988716/user-clip-biden-leahy-interrogate-clarence-thomas-natural-law" rel="nofollow noreferrer">Sen. Joseph Biden (D-Delaware) and Sen. Patrick Leahy (D-Vermont) asked Judge Thomas what his view of natural law is.</a></p>
<p>The Chairman said (<a href="https://books.google.com/books?id=1JFPuQK7iNEC&amp;pg=PA127" rel="nofollow noreferrer">Judge Thomas hearings pt. 1, pp. 127</a>-8):</p>
<blockquote>
<p>there are two schools of thought out there. There
is a gentleman like Professor Michael Moore of the University of
Pennsylvania and Mr. Lewis Lehrman of the Heritage Foundation
who both think natural law philosophy informs their view, and
they conclude one who strongly supports a woman's right and the
other one who strongly opposes a woman's right to terminate a
pregnancy.</p>
<p>Now, let me ask you this: Where does the decision lie? Does it lie
with the Court? For example, you quote, with admiration, Mr.
Lehrman's article […] “Natural Law and the Right to Life.”* And you say when you are speaking at a gathering
that you think that that is a superb application of natural law.
You say, “It is a splendid example of applying natural law.”</p>
<p>Now, what did you mean by that?</p>
</blockquote>
<p><sup>*Lewis E. Lehrman, “<a href="https://isidore.co/misc/Physics%20papers%20and%20books/Zotero/storage/83DT8PRB/Lehrman%20-%201987%20-%20The%20Declaration%20of%20Independence%20and%20the%20Right%20to%20L.pdf" rel="nofollow noreferrer">The Declaration of Independence and the Right to Life</a>,” <em>The American Spectator</em> 20, no. 4 (April 1987): 21–23.</sup></p>
<p>Sen. Leahy asked (<a href="https://books.google.com/books?id=1JFPuQK7iNEC&amp;pg=PA221" rel="nofollow noreferrer"><em>ibid.</em> p. 221</a>):</p>
<blockquote>
<p>Judge, does a fetus have the constitutional status of a person?</p>
</blockquote>
<p>Commenting on this, Judge Thomas said that their bringing up “Natural law was nothing more than a way of tricking me into talking about abortion.”<br><sub>—Devin Dwyer, “<a href="https://abcnews.go.com/Politics/justice-clarence-thomas-rebukes-biden-led-confirmation-hearings/story?id=67235780" rel="nofollow noreferrer">Justice Clarence Thomas Rebukes Biden-Led Confirmation Hearings in New Film</a>,” <em>ABC News</em>, November 28, 2019; quoted in Neumayr, <a href="https://Neumayrhttps://isidore.co/calibre/#panel=book_details&amp;book_id=9102" rel="nofollow noreferrer"><em>The Biden Deception</em></a> ch. 6</sub></p>
