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Bench Memos

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The Wyden Meeting



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A New York Times story today reports on Senator Ron Wyden (D., Oreg.)’s characterization of a “courtesy” meeting with John Roberts. Apparently, courtesy only goes one way, since Wyden was happy to put words in Roberts mouth where he knew that Roberts could not respond: “I asked whether it was constitutional for Congress to intervene in an end-of-life case with a specific remedy,” Mr. Wyden said in a telephone interview after the hourlong meeting. “His answer was, ‘I am concerned with judicial independence. Congress can prescribe standards, but when Congress starts to act like a court and prescribe particular remedies in particular cases, Congress has overstepped its bounds.’ ” According to the story, which cites only Wyden as a source, Wyden “said that Judge Roberts, while not addressing the Schiavo case specifically, made clear he was displeased with Congress’s effort to force the federal judiciary to overturn a court order withdrawing her feeding tube.”

According to a White House source familiar with the meeting, the story is completely off base and represents a “gross lack of journalistic ethics.” The reporter, Sheryl Gay Stolberg, “never called the White House and didn’t call the judge to check the quotes.” She was essentially “anointing a Democratic Senator to be spokesperson” for Judge Roberts.

The substance of Wyden’s account is grossly misleading, according to this White House source. “Judge Roberts said more than once in the meeting that he’s not going to talk about the Schiavo case.” Moreover, there was “nothing said in the meeting to give support to the notion that he was displeased with Congress’s action” in the Schiavo case.

As for Roberts’s purported statement that “Congress can prescribe standards,” but may overstep its bounds when it seeks to prescribe particular remedies, Wyden’s characterization of that statement is materially misleading because it was not the full quote. Apparently, Roberts was only characterizing Supreme Court precedent that discussed that line of thought. It would have been more accurate for Wyden to explain that Roberts said something like “I am aware of Supreme Court decisions that say that . . . .” But Roberts did not in any way give his own view of Congress’s power, and Wyden’s comments are simply not supported by the actual substance of the meeting.

We’ve now seen at least a couple of Democratic senators use these meetings as a way of advancing their own political agenda rather than a means of understanding the nominee, which of course is their intended purpose. Anyone with even cursory understanding of what the purpose of these meetings are would know that a Supreme Court nominee is not going to be telegraphing how he would vote in particular situations or condemning particular congressional actions, so it is safe to say you can usually discount a senator’s comments on what was said in a particular meeting.



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