Some 14 state attorneys general are trying to raise the issue in court, and pending state laws outlawing mandates could raise the question, as well. Those state laws are obviously invalid under the supremacy clause unless the federal law is unconstitutional. Is it?
I would expect an Obama nominee to decline to answer. But Republicans may not take such a response as meekly as they did when Ginsberg declined to answer dozens of questions back in 1993. They might press harder, as they did in 2009 when they prompted Sotomayor to declare, to the dismay of some liberal law professors, that she would only interpret the Constitution and the law, not make new law. Just raising the health care mandate issue helps Republicans given the great and apparently growing unpopularity of the Democrats' legislation.
Another set of questions could prove embarrassing for Democrats who have lauded Griswold v. Connecticut and Roe v. Wade for creating a right to privacy that includes contraception and abortion. "How can the freedom to make such choices with your doctor be protected and not freedom to choose a hip replacement or a Caesarean section?" asks former New York Lt. Gov. Betsy McCaughey in The Wall Street Journal. "Either your body is protected from government interference or it's not."
McCaughey also notes that in 2006 the Supreme Court in Gonzales v. Oregon ruled that the federal government couldn't set standards for doctors to administer lethal drugs to terminally ill patients under Oregon's death with dignity act. So does the Constitution empower the feds to regulate non-lethal drugs in contravention of other state laws?
Such questions may not persuade an Obama nominee to rule that Obamacare is unconstitutional. But they can raise politically damaging issues in a high-visibility forum at a time when Democrats would like to move beyond health care and talk about jobs and financial regulation. Stevens apparently timed his retirement to secure the confirmation of a congenial successor -- but some Democrats probably wish that he had quit a year ago, when they had more Senate votes and fewer unpopular policies.