Bench Memos

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Ramesh is Right


Ramesh’s take on the Alito memo is dead on. It is especially important (as he says in his concluding paragraph) that neither Alito nor the White House nor his Senate proponents seek to distance the nominee from the views there expressed. Saying that the memo does not commit Alito to overruling Roe is accurate. That is as far as damage control should go.

One spin that ought to be dumped asap is this one: the memo represents Alito’s “personal” views and has nothing — or almost nothing — to do with his conduct as a judge. This one should be dumped not so much because it amounts to backtracking, though it does.This one ought to be dumped not so much because it is unconvincing, though it is that, too. This one should be dumped because it is nonsense. Let’s put it this way: if one’s conscientious view of what the Constitution requires is a “personal” distraction from what judges in constitutional cases ought to be doing, then we have given everything away to government by judiciary.

Ramesh’s advice in a nutshell is that the White House should think strategically, and not just tactically, about the Court over Bush’s whole second term: figuring on several vacancies, identifying and sequencing the nominees for the long haul of confirmation politics, preparing the first for hearings which will lay the ground work for the second, and the second for the third, etc. To date that simply has not happened (to put it mildly).

Ramesh also assumes a White House which really wants a Court that will overturn Roe.


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