Bench Memos

NRO’s home for judicial news and analysis.

Big Lies and Bad Manners


In the spirit of James Taranto’s frequent notice of “wannabe pundits,” readers might take note of the musician Leon Fleisher’s op-ed in today’s Washington Post.  Recently honored at the Kennedy Center, Fleisher took all the proffered praise but, after much soul-searching, decided not to show up for a reception at the White House that honorees are allegedly “required to attend.”  The fact that Fleisher sacrificed nothing by this show of bad manners suggests there was no such requirement, of course.  Now, breaking an equally nonexistent “code of silence” with his op-ed in the Post, Fleisher preens himself on his virtuous conscience in the most oleaginous fashion.  If he had the principles he claims, he’d have declined to be honored at the Kennedy Center.  But he has adroitly managed to eat his cake and have it too.

And what drove the poor man to the desperate expedient of snubbing the president of the United States on a purely ceremonial, non-partisan occasion, when all the president wished to do was congratulate him, on behalf of the nation the president represents as head of state, on a distinguished career in music?  Well, according to Leon Fleisher, “Bush administration policies have amounted to a systematic shredding of our nation’s Constitution.”  This has been so endlessly, mindlessly repeated on the left since the commencement of the Iraq war, if not earlier, that there is now no felt necessity on the part of those saying it to support such an idiotic claim with arguments of any kind.  And Fleisher has none, of course–only a litany of bald assertions about an “illegal war,” etc.  He has simply swallowed the Big Lie and regurgitated it to account for a fit of pique and to excuse his inexcusable rudeness.

UPDATE: I see Mona Charen beat me to it at The Corner.

A Few Thoughts on Liberal Fascism


For a guy with a bad head cold, a bloodstream full of antihistamines, and a powerful thirst, Jonah Goldberg gave a tour de force talk on Wednesday evening at Oglethorpe University in Atlanta.  The night before I had finished reading Liberal Fascism, and earlier on Wednesday afternoon I delivered something like the following remarks under the title “Liberal Fascism, Great Parties, and the Constitution”:

Jonah Goldberg’s Liberal Fascism is a marvellous book, of remarkable breadth, considerable historical sweep, and sharp insights into our present condidtion.

Deftly turning the tables on liberals who yell “fascist” every time they encounter conservative positions, Jonah shows that fascism has always been an essentially left-wing program–and that there are strong affinities among Progressives like Herbert Croly and Woodrow Wilson, fascists and Nazis like Mussolini and Hitler, communists like Lenin and Che Guevara, and modern-day liberals like Robert Reich and Hillary Clinton.

Jonah does not foolishly imagine that if Hillary Clinton is elected president we will witness some sort of American Fourth Reich complete with extermination camps for enemies of the state.  And his argument would hit a stumbling block if we define fascism as a political order that invariably blows up democratic institutions in some violent way and governs through dictatorship.

But that isn’t how Jonah defines fascism.  For him it is a politics that amounts to a “religion of the state,” gathering all human actions within the ambit of state power, on the totalitarian impulse that makes us (in the words of Huxley’s Brave New World) “cells in a social body” and no longer individuals.  If Jonah is right–and though not flawless his case is very strong–then we may have to rethink our standard views of political parties in America.

In Democracy in America, Tocqueville distinguished between great parties and small parties–the difference being, not the size of the parties, but the magnitude of the issues between them.  If “total change in their political constitution” is the issue facing a people, then they’re confronting a great-party issue.  If contending forces merely “agitate” society rather than threaten to “overturn” it, then we’re watching small parties at work.

Tocqueville says that at the American founding, great-party struggle gave birth to our constitutional order, which thereafter fostered tamer, small-party competition.  Surely a case can be made that years after Tocqueville’s visit, we had another great-party moment, in which first-order regime questions were at stake, in the Civil War.  But the usual interpretation of our politics since then has been along Tocqueville’s small-party lines, with our parties contending for political victory, for power, and for policy change within the boundaries of a common “settlement” of the truly big questions.

If Jonah Goldberg is right, we have instead been going through a Hundred Years’ War between great parties ever since the Progressive era–a struggle between conservatives or classical liberals on one side and progressives or modern liberals on the other.

And the struggle is truly constitutional in its dimensions.  On the conservative side one finds originalism, a commitment to the doctrine of natural rights, and an insistence on limited government.  On the left one finds the “living Constitution.” a belief in “evolving standards” rather than fixed principles grounded in natural law, and a warping of our institutions, including the judiciary, into agents of increasingly unlimited political power.

The sharpness of these differences, and the depth of the dispute between these two great parties, raise some acute questions.

First, how long can regime questions of this magnitude remain in dispute, without the sort of settlement that “normalizes” partisan division on a less desperate level?  Or is the last century proof positive that a “new normal” in which such issues stay essentially contested can go on indefinitely?

Edmund Burke in 1775, in what seems to be the first defense of partisanship in Western political thinking, argued that party loyalty and striving for victory over one’s opponents is a good thing, so long as loyalty to one’s own did not lead each party to attempt the “proscription” of the other.  My second and last question prompted by Jonah’s Liberal Fascism is, how real is the prospect that one of our parties may try to proscribe the other.  And which is more likely to try it?

It is a standard charge of left-wingers who claim to see “fascists” on the right that conservatives want to crack down on dissent and stifle freedom of political speech.  But if, as Jonah powerfully argues, our fascists are liberals and many of our liberals are fascists–while fascism is much more weakly present (if at all) on the right–then it should not be surprising that we find the left to be the maker of speech codes, hate crimes laws, political correctness, indoctrination programs in all levels of education, campaign finance “reform,” and so on.  Can anyone recall any similar campaigns by conservatives for the repression of dissent in the last several generations?  (And no, efforts to revive now-lost prohibitions on obscenity and pornography don’t count.)  Proscription of its opponents’ views–a classic great-party gambit by those who wish to unmake and remake regime-question settlements–seems to be the agenda of the American left, not of the right.


Pass the Buck to the Judges


I know there are folks around here who disagree, but ever since last spring’s ruling in the D.C. “gun rights” case, I have been convinced that those who wish to turn back the more extreme instances of gun control will rue the day they invited the Supreme Court to do this work for them.  And that’s if they “win.”

Now comes a truly farcical turn in the story.  Robert Barnes reports in the Washington Post that a majority of the members of each house of Congress have put their signatures to an amicus brief urging the Supreme Court to affirm last year’s D.C. Circuit ruling.  Our gun-friendly solons demand that the Court pay “due deference” to the view expressed (on occasion–let’s not exaggerate) by Congress, “a co-equal branch of government,” that the Second Amendment embodies a “personal right to possess firearms.”

Um, guys?  That co-equal branch called the Congress has a plenary power of legislation over the District of Columbia, and could at any time pass an act nullifying the D.C. gun ban.  Oh, home rule, you say?  Well, you have now assembled majorities in both houses claiming to believe that this particular instance of D.C. home rule is in violation of the Constitution.  Abrogating home rule, which you gave in the first place, shouldn’t prick your consciences too much in this instance.  If you have the majorities, how hard is it to do your own damned work under the Constitution, rather than ask the Supreme Court to clean up your mess?

Only a reflexive belief in government by judiciary wherever constitutional issues are concerned can account for this trip through the looking glass.

Let’s Ask the Candidates


Roger Clegg of the Center for Equal Opportunity has a good heads-up today in the Wall Street Journal about three pieces of legislation currently under consideration in Congress.  One would enshrine the discredited anti-market notion of “comparable worth” as a cause of action for persons whose jobs ought to be considered “worth as much” as wholly different jobs dominated by the opposite sex.  The second would add “sexual orientation” to the list of characteristics on the basis of which employment discrimination is forbidden.  And the third would, among other things, re-establish the “disparate impact” standard for discrimination lawsuits, so that plaintiffs would only have to show that racial parity did not exist in a workplace in order to “prove” that discrimination is the cause.

Bad ideas all, as Roger explains at length.  And he reports that all three are supported by both Clinton and Obama, while McCain is on record as opposing the second (at least).  Whenever the Democrats are finished choosing their nominee, it would be good to see questions raised about these bills in a debate between McCain and his Democratic rival.

More on John McCain vs. Clinton/Obama


As my EPPC colleague Yuval Levin explains in this very interesting National Review essay, John McCain is driven to an unusual degree by his deep sense of honor, and a “man of honor does not break a promise.”  I don’t mean to argue (and I doubt that McCain himself would argue) that McCain has never broken a promise.  But there’s ample reason to believe that McCain, far more than many other politicians, takes his promises very seriously. 


Consider, for example, a defining moment of McCain’s life—his response, after months of unspeakable suffering as a POW in North Vietnam, to an offer to be released.  McCain rejected the offer because he had committed himself to a code of conduct that barred acceptance of special favors.  As a result, he endured nearly five more years of captivity.  (McCain’s own account of his captivity, first published in U.S. News & World Report in 1973, would seem to deserve more attention than Obama’s “Yes We Can” music video.)


Let’s take seriously, then—and work to help McCain fulfill—the specific promises that he has made on judicial appointments.   


Here are excerpts from McCain’s statement to the Federalist Society:


I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat….

Our laws are legitimate precisely because they reflect decisions solemnly made by the people – in the case of Constitutional law, through the process of ratification and periodic amendment; in the case of statutory law, through their elected representatives in the legislative process. When applying the law, the role of the judge is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law. The judicial role is necessarily limited and one that requires restraint and humility. As I said to the Society at the 2006 convention, “[Judges] should be people who are humbled by their role in our system, not emboldened by it. Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of arbitrary executive, or legislative, or state power.”


This is not a new position.  I have long held it. It is reflected in my consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such matters as dealing with abortion and the definition of marriage. It is reflected in my longstanding opposition to liberal opinions that have adopted a stance of active hostility toward religion, rather than neutrality. It is reflected in my firm support for the personal rights secured in the Second Amendment.…


I believe that shaping the judiciary through the appointment power is one of the most important and solemn responsibilities a President has, and certainly one that has a profound and lasting impact. When I was running for President in 1999, I promised that, in appointing judges, I would not only insist on persons who were faithful to the Constitution, but persons who had a record that demonstrated that fidelity. A President should have confidence in the judicial philosophy of those he is appointing to the bench. That is why I strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why I would seek men and women like them as my judicial appointees. 


And here are excerpts from his CPAC speech:


They [Clinton and Obama] will appoint to the federal bench judges who are intent on achieving political changes that the American people cannot be convinced to accept through the election of their representatives.

I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people’s elected representatives, judges of the character and quality of Justices Roberts and Alito, judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.

Tags: Whelan


Clarification on John McCain vs. Clinton/Obama


Several readers, expressing surprise at my statement that “no president in my lifetime has made only outstanding Supreme Court nominations,” have wondered whether I am signaling dissatisfaction with the Roberts or Alito nominations.  The answer is no.  The terms “nominations” and “appointments” are not synonyms—as the Constitution puts it, the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” judges—and, whether or not one looked favorably on President Bush’s nomination of Harriet Miers, I would not call it an “outstanding” nomination.

Tags: Whelan

Re: John McCain vs. Clinton/Obama


In case you were wondering, here, in descending order, are the projected ages of the current justices on January 20, 2013 (at the end of the next presidential term) and on January 20, 2017 (at the end of the following term—possibly the second term of the next elected president):


Justice Stevens:  92, 96

Justice Ginsburg:  79, 83

Justice Scalia:  76, 80

Justice Kennedy:  76, 80

Justice Breyer:  74, 78

Justice Souter:  73, 77

Justice Thomas:  64, 68

Justice Alito:  62, 66

Chief Justice Roberts:  57, 61

Tags: Whelan

John McCain vs. Clinton/Obama


With Mitt Romney’s gracious withdrawal from the race for the Republican nomination, it now seems clear that John McCain will be the Republican candidate for president.  Whatever McCain’s real or alleged defects (and I have no interest at this point in debating them), there is a stark difference between him, on the one hand, and Hillary Clinton or Barack Obama, on the other, on a range of major issues, including the sort of justices they could be expected to appoint to the Supreme Court. 


I don’t mean to suggest that we’re guaranteed to get outstanding Supreme Court nominations from a President McCain.  That would be setting the bar rather high, as no president in my lifetime has made only outstanding Supreme Court nominations.  (Update:  If this proposition surprises you, see my clarification here.)  But I do mean that we’d have a fighting chance at outstanding nominees.  By contrast, it is a virtual certainty that a President Clinton or President Obama would make terrible nominations.


Bottom line:  Those who care about continuing to work to restore the Supreme Court to its proper role in our constitutional system will have a clear choice in November.

Tags: Whelan

Re: Greenhouse Contempt


Distracted by New York Times public editor Clark Hoyt’s inanities and the deeply defective Bazelon/Lithwick defense of Linda Greenhouse’s conflict of interest, I hadn’t assembled an updated narrative of Greenhouse’s course of conduct that includes some nuggets provided by Hoyt.  So, at the risk of again being called a meanie for carefully documenting the facts, I provide this narrative.  (If any reader thinks I’m mistaken in any of my facts or inferences, please let me know.  As always, I will promptly correct any errors.)


1.  In January 2006, Greenhouse’s husband, Eugene Fidell, submitted this amicus brief in support of detainee Salim Ahmed Hamdan in the Hamdan case in the Supreme Court.  Fidell submitted the brief as counsel of record for his institutional alter ego, the National Institute of Military Justice (“NIMJ”) (of which he is founder and president), and for the D.C. Bar.


2.  Notwithstanding her husband’s participation in Hamdan, Greenhouse continued to report on the case and never disclosed to readers her conflict of interest.  On June 30, 2006, the day after the Court’s ruling in Hamdan, Greenhouse produced a remarkably biased account of the ruling (as law professor Peter Berkowitz pointed out in September 2006 in the paragraphs I quote in point 1 here).  I take no position on whether her bias resulted in part from her husband’s role.  As I have stated:


Ironically, it is those who generally think that Greenhouse is an objective reporter who ought to have special cause to wonder how it is that her reporting just happened to go haywire in this case in which her husband appeared as counsel of record on an amicus brief in support of detainee Hamdan.  (Those of us, by contrast, who regard her reporting on politically charged cases as routinely biased would find it impossible to assess the relative contributions of her spousal bias and her broader political bias.)


3.  In March 2006, Fidell submitted this amicus brief in support of the Guantanamo detainees in the Boumediene case then pending in the D.C. Circuit.  Fidell submitted the brief for NIMJ.  In August 2007, when the same Boumediene case was pending in the Supreme Court, NIMJ again filed an amicus brief.  According to Clark Hoyt:


But this time, out of what Greenhouse said was “an excess of caution,” her husband did not sign [the amicus brief] because the case was in the court she was covering.


I infer from Hoyt’s account (including from what Hoyt doesn’t say) that Fidell worked on the brief and authorized it to be filed on behalf of the institute that he heads and that is his alter ego.  I infer, further, that Greenhouse was aware of Fidell’s role and that she and Fidell discussed whether to have him put his name on the brief.


Also in the Boumediene proceeding in the Supreme Court, Fidell is listed in the amicus brief submitted on behalf of the Constitution Project (and other entities) as one of the signatories to the Constitution Project’s Statement on Restoring Habeas Corpus Rights Eliminated By The Military Commissions Act. 


4.  Notwithstanding her husband’s participation in Boumediene, Greenhouse has reported on the case and has never disclosed to readers her conflict of interest.  

5.  After Clark Hoyt raised Greenhouse’s conflict of interest with her, Hoyt informed me by e-mail in mid-January 2008 that “Linda Greenhouse tells me, categorically, that her husband, Eugene Fidell, has never represented any detainee, is not involved as a lawyer in the case [evidently, Boumediene] about which you wrote and did not file a brief in that case.”  As I responded to Hoyt, Greenhouse’s supposedly “categorical” assertions were Clintonesque evasions of the material facts. 

In his same e-mail, Hoyt wrote:  “I’d appreciate it if you could steer me to the brief you said he [Fidell] filed.”  It would seem from Hoyt’s request that Greenhouse not only did not provide Hoyt the relevant briefs in Boumediene, but that she did not even acknowledge to Hoyt that her husband had filed an amicus brief in the D.C. Circuit proceeding and that he had authorized an amicus brief to be submitted on behalf of NIMJ in the Supreme Court.  (But maybe Hoyt was being coy with me.)  I sent Hoyt links to the briefs (the second of which I located on the New York Times website). 

6.  In his January 20 column, Hoyt validated the heart of my complaint about Greenhouse’s conflict of interest (even as he baselessly attacked me): 


“Like it or not, the perception is that Greenhouse is writing about something in which her husband is a player–and The Times isn’t telling the public.” 


In one of his many strange turns, Hoyt concluded that disclosure of Greenhouse’s conflict of interest should be made via her website bio—a means poorly calculated to inform Greenhouse’s actual readers.


Hoyt also relates that at the time of the Hamdan case Greenhouse and her bureau chief agreed (in the bureau chief’s words) that “if her husband represented a party in a case before the Supreme Court, she would not cover that case.”  Otherwise, apparently, the agreement was both that she should cover the case and that the Times would provide no disclosure of her husband’s participation in the case.  As I’ve discussed (third paragraph here and fourth paragraph here), the line that Greenhouse and her bureau chief drew between being counsel for a party, on the one hand, and being counsel for an amicus or president and alter ego of an amicus, on the other, is a highly implausible one—and not one that anyone has attempted to defend with anything resembling an argument.


7.  Greenhouse’s article yesterday on Boumediene, which I discuss here, indicates that she has decided to continue to report on Boumediene without disclosing her conflict of interest to Times readers (and without even the feckless disclosure suggested by Hoyt).


The most puzzling aspect of this whole matter is Greenhouse’s inability or unwillingness to recognize her conflict of interest and to take appropriate corrective action.  I will leave it to readers to draw their own conclusions about her conduct.

Tags: Whelan

Greenhouse’s Contempt


In today’s New York Times, Linda Greenhouse has another article on the Boumediene case now pending in the Supreme Court—a case in which her husband Eugene Fidell and his nonprofit alter ego have participated.  The article provides an interesting discussion of the interaction between Boumediene and a D.C. Circuit ruling (in Bismullah v. Gates) that the Bush administration will be asking the Supreme Court to review.  The article is about both cases, which Greenhouse states are “inextricably entwined.”


Once again, Greenhouse and her editors have declined even to disclose to Times readers the fact and nature of Greenhouse’s conflict of interest in reporting on Boumediene.  Indeed, they haven’t even complied with NYT public editor Clark Hoyt’s patently inadequate recommendation (see point 5 here) that the conflict of interest be disclosed on Greenhouse’s website bio, where few readers would ever be likely to encounter it.


I repeat again the elementary point that it is not incumbent on those who expose a conflict of interest to establish, or even allege, that the conflict has yielded a biased result in a particular instance.  Rather, the very point of conflict-of-interest rules is to identify those situations in which partiality should be conclusively presumed, and situations involving spouses are routinely and understandably recognized to be leading examples.


In their continuing defiant refusal even to disclose Greenhouse’s conflict, Greenhouse and her editors manifest contempt not only for Hoyt’s judgment (a contempt that, on the evidence, may well be justified for very different reasons) but for all Times readers.

Tags: Whelan

Judicial-Pay Bill in Jeopardy?


The judicial-pay bill (S. 1638) reported out of the Senate Judiciary Committee last week would raise the salaries of federal district judges to $218,000 (from $169,300), of federal appellate judges to $231,100 (from $179,500), of associate Supreme Court justices to $267,900 (from $208,100), and of the Chief Justice to $279,900 (from $217,400).  Unfortunately for the many fine justices and judges who would be rewarded with a pay raise, I hear that the bill’s prospects of enactment, at least in its current form, may be jeopardized by one or more of its ancillary provisions:


1.  The bill includes (in section 10(a)(2)) the provision pressed by Senator Russ Feingold that would effectively cripple or kill judicial-education programs that are not run by government bureaucrats or bar-association activists.  Specifically, the provision would permit federal judges taking part in judicial-education programs (i.e., programs “a significant purpose of which is the education of United States federal or state judges”) to accept reimbursement for (or a gift of) travel, lodging, and other travel-related needs only for those programs run by the government or by bar associations.  


Curiously, although the provision is being sold as an anti-boondoggle measure, it applies only to judicial-education programs and wouldn’t limit, say, gifts of golf trips or other flat-out junkets.  Even more curiously, as I discussed in my essay “George Soros’s Two Left Hands,” a primary victim of the legislation would be the academically rigorous programs in economics, philosophy, and history offered by the George Mason University Law and Economics Center.  As I’ve previously written:


The fact that various federal courts of appeals and state court systems have enlisted George Mason to provide the academic content for their annual conferences speaks powerfully to the quality and integrity of its programs.  Further, the Judicial Conference of the United States has emphasized that there is a “compelling need” for “continuing education of judges in law, science, history, economics, sociology, philosophy, and other disciplines”—education that the sources that the Feingold amendment would permit are ill-equipped to provide. 


(I will note that Senator Kyl, whose apparent support for this provision I lamented some weeks ago, now vigorously opposes this provision.)


2.  The bill includes (in section 10(a)(1)) a general bar on a judge’s accepting “in connection with a single trip or event” travel, food, lodging, and outside earned income of a combined value of more than $2000 and (in section 10(c)(1)) an aggregate calendar-year limit of $20,000 on such trips or events.  Those caps are up from a single-trip limit of $1500 and an aggregate limit of $5000 in a previous version, and therefore should have a somewhat less severe effect on the availability of federal judges to teach off-campus seminars sponsored by law schools and to serve as moot-court judges.


It’s worth noting that the provision would have a severe effect on a judge’s ability to take part in, say, a foreign seminar sponsored by an American law school (or a foreign university).  The $2000 limit can be waived (under section 10(b)) only if the Department of State approves the trip as “promot[ing] the rule of law or developing legal systems in foreign countries.” 


The $2000 limit would also appear to apply, say, to a one- or two-week course (which would seem to be a single event) taught by a judge serving as an adjunct professor, whether on the law school’s campus or elsewhere.


3.  The bill (in section 4) would raise the retirement requirements for judges.  A Rule of 84 (rather than the current Rule of 80)—age plus years of service—would govern pension qualification.


4.  The bill (in section 6) would reduce the pension of retired judges who received earned income in an amount that exceeded their salary at the time of retirement. 


5.  The bill (in section 7) would bar judges from accepting honorary club memberships.


I don’t mean by pointing out these provisions to be implicitly opining that each is necessarily objectionable.  My purpose, rather, is to report on them (I haven’t seen a full account anywhere else) and to note that some or all of them may complicate passage of the bill.

Tags: Whelan

Alito and the Gang of 14


I still have not heard any explanation for why Senator McCain thought Justice Alito “wore his conservatism on his sleeve.”

I guess we are just supposed to be thankful that McCain doesn’t consider the wearing of conservatism on one’s sleeve to be an “extraordinary circumstance.”

Matthew is certainly right about the Calabresi-McGinnis claim. It is fairly ridiculous to say McCain “played an important role in ensuring that Samuel Alito faced no Senate filibuster”: McCain actually increased the chance that Alito would face a filibuster, and it is ironic (to put it mildly) to say that because Alito was ultimately not filibustered that McCain should get any credit for it.

Only Rudy is Electable?


Matthew is again right about the Calabresi-McGinnis prognostications regarding electability. Their wisdom on the Constitution does not translate to elections.

Laura Ingraham pointed out on her show this morning — apropos of the well-taken comments to this effect by Matthew and by Mark Levin — that most of the people now arguing that McCain is more “electable” than the more conservative Romney are the very ones who argued previously that only Rudy Giuliani was was “electable.”

McCain and Gang of 14 Revisionism


Ramesh and Matthew are correct: the McCain Gang of 14 was a disaster that snatched defeat from the jaws of victory on judicial nominations.

In May 2005, Senate Republican leadership had worked for months to make sure they had the votes for the constitutional option. We were ready to put an end to judicial filibusters that liberals had used to kill great nominations.

And then Senator McCain and his Gang of 14 arrogated the power to their little clique to determine what nominees would make it and what nominees would not, based on a subjective and undefined standard.

I double checked with someone who was very close to the process inside the Senate at the time, and that source confirmed: “Senator Frist was ready to execute the constitional option and McCain stopped it. Period.”

Cobbler, Stick to Your Last


Northwestern law profs Steven Calabresi and John McGinnis make the argument for McCain in today’s Wall Street Journal.  Admitting that Romney can be trusted at least as much as McCain on judicial appointment, they argue strictly from McCain’s alleged electability.  But relying as Calabresi and McGinnis do on polls nine months before the general election about who is more “likely” to beat whom is a well-established blunder, as Mark Levin has not tired of pointing out on The Corner.  Campaigns matter, and Calabresi and McGinnis, who know a lot about the law and the judiciary, shouldn’t claim to have a crystal ball about this election.

And one more thing: when Calabresi and McGinnis claim that the Gang of 14 bargain “played an important role in ensuring that Samuel Alito faced no Senate filibuster,” they make a simply insupportable claim, as I think Ramesh has pointed out on The Corner.

With Jonah in Atlanta


This Wednesday I will be part of a mini-conference at Oglethorpe University in Atlanta, “The Future of Liberalism and Conservatism During and After 2008,” put together by OU professor and No Left Turns blogger Joe Knippenberg.  I’ll be on an early afternoon panel, but the undoubted highlight of the event will be the evening keynoter by Jonah Goldberg, talking about Liberal Fascism.  I’m almost finished reading LF, and I can tell you that if a better book is published by a political scientist in America in 2008, I’d be very, very surprised.

This Week in Liberal Judicial Activism—Week of February 4


Judicial mischief on same-sex marriage, an ideal Clinton nominee, and the mythical “wall of separation”: 

Feb. 4        2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling).

2005—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as between a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, reverses this ruling.


Feb. 6        1992Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case.  The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality.  Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994.  The ABA gives Sarokin its highest “well qualified” rating.  Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”


Feb. 10      1947In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state.  As University of Chicago law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.”  The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.”  Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

Specter Steps Up


In Friday’s WSJ Senator Arlen Specter calls upon Judiciary Committee Chairman Patrick Leahy to ensure that the pace of judicial confirmations matches that of President Clinton’s final two years in office. 

In 2007 (President Bush’s second-to-last year in office), the Senate confirmed six circuit court nominees, nearly matching the seven nominees confirmed in President Clinton’s second-to-last year in office. This is a fair start to the 110th Congress, but the Senate is still lagging behind in confirming circuit court nominees.

In President Clinton’s final two years in office, the Senate confirmed 15 circuit court nominees; thus, much work remains to be done. There are currently 14 circuit court vacancies, with a nominee pending for nearly all of the seats. The Senate must confirm nine more circuit court nominees this year to keep pace with President Clinton’s confirmations during his final two years in office.
To Specter’s credit, he stresses the need for action on the nomination of Peter Keisler to the U.S. Court of Appeals for the D.C. Circuit, as well as that of Judge Robert Conrad, who President Bush nominated to the U.S. Court of Appeals for the Fourth Circuit.  As Specter notes, both are eminently qualified nominees who deserve prompt committee action, and consideration by the full Senate.  Alas, I’m not holding my breath.

He Said It


It is incontrovertible. Multiple sources confirm that they remember it the same way. And they are not John Fund’s source, as Novak reports.

Maybe McCain forgot. Other people didn’t. They, and many Americans, are genuinely concerned about this issue. As my post on Alito testimony reflects, this was indeed an issue in his confirmation. That Alito was purportedly a “conservative ideologue” was a myth cooked up by liberal antagonists trying to bring down his nomination. Which is why so many people from across the political spectrum who knew then-Judge Alito came forward to refute it.

McCain, long after the fact, repeated what the Ted Kennedy / Moveon / People for the American Way crowd said about Alito. We don’t know what to make of it, because it’s as outlandish as if McCain had said, “As President, I will not send a man to the moon, because the moon wears its green cheese on its sleeve.”

It makes no sense. But he said it. Whether he remembers the specific comment or not, he did say it. So we need to try to understand it, or at least get some pretty detailed commitments from Senator McCain going forward. I hope he, and others, will understand why this is necessary. A President who confuses adherence to judicial restraint with conservative political decisions is very confused about how to select judges. It is one thing to vote for, and even praise, judges some other chief executive has picked (especially when it would be political suicide not to). It is another to discern good Supreme Court appointments. Just ask Ronald Reagan, or George Bush (pere or fils, take your pick).

A friend just reminded me what Bill Buckley once told him about a conversation Buckley had, either with President Eisehhower or his chief of staff, Sherman Adams, looking back on the administration.

“Why weren’t you more conservative when you were in the White House?” Buckley asked. The answer: “Why didn’t you force us to be?”

Pearl of wisdom for the day from WFB.

Tags: Long

McCain and Alito: “conservatism on his sleeve”...not.


Senator John McCain, as recently reported and discussed here and on The Corner, has said privately that he would not appoint jurists like Justice Samuel Alito, because he ”wears his conservatism on his sleeve.”

To refresh recollections:  many of Justice Alito’s former law clerks, fellow Article III judges, and others — a good number of whom were liberal Democrats — testified during his Senate confirmation to the exact opposite proposition:  that Justice Alito did not wear any political ideology or convictions “on his sleeve.”   Just a sampling of that testimony:   *  Katherine L. Pringle (former law clerk, “committed and active Democrat”):  “I learned in my year with Judge Alito that his approach to judging is not about personal ideology or ambition, but about hard work and devotion to law and justice. . . . Judge Alito did not, in my experience, ever treat a case as a platform for a personal agenda or ambition. Rather, his decisions are limited to the issue at hand. They demonstrate an effort to interpret honestly, and faithfully apply, the law to the parties that seek justice before him . . . .”   *  Jack White (former law clerk, member of the NAACP and the ACLU):  “Working for Judge Alito, I saw in him an abiding loyalty to a fair judicial process as opposed to an enslaved inclination toward a political or personal ideology. . . . What I found most intriguing and particularly exceptional about Judge Alito’s judicial decision-making process was the conspicuous absence of personal predilections. . . . After a year of working closely with the judge on cases concerning a wide variety of legal issues, I left New Jersey not knowing Judge Alito’s personal beliefs on any of them. The reason I did not know Judge Alito’s personal beliefs was that the jurist’s ideology was never an issue in any case he considered while I was in his chambers. In fact, it is never an issue in any case. My fellow former co-clerks have agreed and communicated this notion in a letter we provided to this committee.”

*  Judge Edward Becker (Third Circuit Court of Appeals):   ”The Sam Alito that I have sat with for fifteen years is not an ideologue. He is not a movement person. He is a real judge, deciding each case on the facts and the law, not on his personal views whatever they may be. . . . Sam is said to have certain ideological views, expressed in some twenty-year-old memos. Whatever these views may have been, his judging does not reflect them. . . . Sam is faithful to his judicial oath.”   The Honorable Anthony Scirica (Chief Judge, Third Circuit Court of Appeals):  “Judge Alito approaches each case with an open mind, and determines the proper application of the relevant law to the facts. He has a deep respect for precedent. His reasoning is scrupulous and meticulous. He does not reach out to decide issues not presented in the case. His personal views, whatever they might be, do not jeopardize the independence of his legal reasoning or his capacity to approach each issue with an open mind.”   *  Mr. Stephen L. Tober (Chairman, American Bar Association):  “The Standing Committee has unanimously concluded that Judge Alito is “Well Qualified” to serve as Associate Justice on the United States Supreme Court. His integrity, professional competence, and judicial temperament are indeed found to be of the highest standing.

Judge Alito is an individual who, we believe, sees majesty in the law, respects it, and remains a dedicated student of it to this day.”

*  Charles Fried (Former United States Solicitor General, who worked with Justice Alito in that office from the latter part of 1984 until he left the office at the end of 1985):  “Alito was highly respected. Nor do I recall anyone bothering to mention that he had any particular political coloration. In preparation for this testimony I have checked my recollection with several alumni of the office from that time and they confirm what I report here.”  

Tags: Long


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