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Has natural law ever been asked of U.S. Supreme Court nominee in a confirmation hearing?

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.


Cicero De Republica 3.22.33

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.

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  • The short answer is "yes", many times.
    – ohwilleke
    Oct 15 '21 at 19:53
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Yes

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.

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.”

“Senator Coburn,” replied Kagan, “to be honest with you, I don’t have a view of what are natural rights independent of the Constitution.”

The full exchange is as follows:

Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?

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.

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?

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.

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?

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.

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?

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.

Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says.

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.

See Transcript

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