Bench Memos

NRO’s home for judicial news and analysis.

Feinstein, Southwick, and the 10-9 Judiciary Vote


Senator Dianne Feinstein’s vote has broken the strongarm of the liberal left on this one.   Ed is right, she deserves credit for honesty and decency.  But make no mistake:  if there were even a shred of evidence that the judge was hostile to anyone’s civil rights, Senator Feinstein would not have done this.   Feinstein’s test had to be “zero evidence to support the charges against Southwick.”  Accordingly, her support for him is a resounding repudiation of both the misrepresentations about Southwick personally, and of the Democrat tactics of obstructing fair and impartial judges.   What is still amazing is that there are still 9 Democrats on the Senate Judiciary Committee who will act as pawns of the far left and try to block a nomination with absolutely no basis to do so.  It will be interesting to see how many Democrats on the floor will vote, like those 9 Democrats on the Judiciary Committee, against Southwick based on zero evidence against him.  

More on Judge Southwick


Senator Specter particularly deserves credit for pressing the case for Judge Southwick’s nomination.

Tags: Whelan


Re: Excellent News for Judge Southwick


The committee has just voted 10-9 to report Southwick’s nomination to the floor—where, in my judgment, he is virtually certain to be confirmed.  The sooner, the fairer.

Tags: Whelan

Excellent News for Judge Southwick


In an act of decency for which she deserves credit (especially in contrast to the shameful performance of her Democratic colleagues), Senator Dianne Feinstein is joining Senate Judiciary Committee Republicans in voting to report to the Senate floor Judge Southwick’s nomination to the Fifth Circuit.  She’s delivering her statement right now on C-SPAN3.

Tags: Whelan



Senate aide in the position to know says: Feinstein may be voting for Southwick.


Leahy Inspires Flashback


“There’s no place for this word in the workplace.”

(Sen. Leahy condemning an opinion written by someone other than Judge Southwick about an employee that used the N-word, Judiciary Committee hearing, August 2, 2007)

“There are white niggers. I’ve seen a lot of white n****rs in my time; I’m going to use that word.”

(Sen. Robert C. Byrd, D-W.Va., Fox News, March 4, 2001)

Pat Leahy’s “Irresponsible Rhetoric” About Chief Justice Roberts


In an interview with Politico, Senator Leahy offered these two pearls of wisdom about Chief Justice Roberts and the Supreme Court:


1.  “I think in his actions and the actions in which he has joined, he [Chief Justice Roberts] has made the court an arm of the Republican Party.”


2.  “They (the Republicans) say they don’t want an activist Supreme Court, but this is the most activist Supreme Court we have ever seen, running roughshod over the Constitution, like Plessy v. Ferguson did.”


Let’s begin with quote 1.  The charge that Chief Justice Roberts “has made the court an arm of the Republican Party” is, needless to say, a severe charge.  Indeed, it is a charge so severe that it is irresponsible for anyone—much less the chairman of the Senate Judiciary Committee—to make it without offering any evidence in support.  But that is exactly what Leahy has done.


What might Leahy’s argument consist of?  Perhaps he is upset that Roberts voted in support of the Court’s ruling that the federal partial-birth abortion ban is facially constitutional.  Oops, wait a second—Leahy (and lots of other Democrats) voted for that ban, so that ruling presumably is not the target of his ire.


One might guess that Leahy disagrees particularly with the Court’s rulings in the Seattle/Kentucky school cases and on the as-applied challenge to the campaign finance law.  If so, he ought to offer some sort of argument why they’re not only wrong but so beyond the pale that Chief Justice Roberts’s vote can fairly be understood as doing the bidding of the Republican Party.  Leahy can’t remotely do that.


Moreover, it’s not at all clear that the very narrow result in the schools case can fairly be described as comporting with a partisan Republican position.  According to a Newsweek poll following the schools ruling, 82% of Americans believe that race should not “be allowed as a factor in making decisions about employment and education.”  (From the same poll, a separate question specifically about the ruling somehow yielded very divided sentiment, though the fact that 32% were “unsure” about the ruling suggests that that question may have been poorly understood.)  As the success of statewide initiatives to ban race preferences shows, there are lots of Democrats who are opposed to racial quotas and other race preferences.  Indeed, this would appear to be an issue in which the elites of both parties are out of step with significant portions of their party bases.


As for campaign-finance reform, it probably is the case that Republicans are much more inclined to oppose limits on spending than Democrats are, though I’m not sure when ardent defense of First Amendment principles (such as Justice Brennan applied in Buckley v. Valeo) became a partisan Republican or conservative issue. 


As for quote 2:  The charge that “this is the most activist Supreme Court we have ever seen” is too inane to call for a response.  Has Leahy been asleep for the past 40 years?  Also, Leahy’s charge that the error of Plessy v. Ferguson (in not striking down the segregation of railway cars) was “activist” shows that he doesn’t even understand his own epithet.


Less than six months ago, Senator Leahy defended the principle of judicial independence:  “It is most unfortunate that some in this country have chosen to use dangerous and irresponsible rhetoric when talking about judges.…  This high-pitched rhetoric should stop, for the sake of our judges and the independence of the Judiciary.”  Leahy’s own crude political attack on the Chief Justice and the Supreme Court is, admittedly, a few steps removed from the specific examples that he condemned, but it is nonetheless irresponsible, especially coming from a chairman of the Senate Judiciary Committee.

Let me be clear:  If Leahy wants to try to present a sustained, coherent criticism of Chief Justice Roberts and the Supreme Court, he should be welcome to do so.  But that’s a far cry from his reckless remarks to Politico. 

Tags: Whelan

Southwick on Deck -- Again


At today’s executive business meeting of the Senate Judiciary Committee, the nomination of Leslie Southwick is (again) on the agenda .  Any chance he’ll make it out of committee this time?

Re: Fred Thompson on Southwick Nomination


It’s good to see Fred Thompson weigh in on the Southwick nomination (and I’m also pleased to see that Bench Memos is on his blog roll).  I disagree, however, with a tack that he and some other defenders of the nomination have taken—namely, to highlight that Southwick did not write, but merely joined, the two opinions that are contested.  With due allowance for the leeway afforded the writing judge, judges who join opinions may fairly be held to account for joining those opinions, and in some cases it might well be that one or two joinders shed damning light on a nominee’s suitability. 


The proper defense of Southwick is that there is nothing objectionable about the opinions that he joined (as I have spelled out repeatedly, including here).


Tags: Whelan

Fred Thompson on Southwick Nomination:


Fred Thompson calls upon the Senate to confirm Leslie Southwick here (LvVC).

Any Port in a Storm


Perhaps I am being cynical, but this article (h/t Joe Knippenberg at NLT) in The New Republic by Douglas T. Kendall and James E. Ryan strikes me as a real hoot.  Or maybe I am responding to the refreshingly candid cynicism of the authors, who think that Democrats can win the arguments over the Constitution–and elections, to the extent they turn on such arguments–by faking being originalists.

I don’t know what other conclusion to draw from an article that uses, as its prominent example of progressive originalism, the recent “conversion” of Yale law professor Jack Balkin to “fidelity to the original meaning of the Constitution,” proclaimed in the course of his arguing that the text and history of the Fourteenth Amendment support . . . the right to abortion.

The editors of TNR seem to have gotten the joke.  They title the piece “Origin Myth.”  Who was it who said that sincerity is so important a political quality that politicians must learn to fake it?

Re: Tina Brown on Chief Justice Roberts


What Linda Greenhouse really means:  I don’t care what the facts are.  So what if the best medical judgment is that it’s a minor incident of no long-term consequence.  Maybe I can get John Roberts to go to a Simon and Garfunkel concert with me—I’ll promise to drive—and we can have a “little crying jag” together, and I can persuade him to abandon his “sustained assault on women’s reproductive freedom” and his “hijacking of public policy by religious fundamentalism.”  Surely he’s never reflected on mortality before or had any experience with suffering.  After all, he’s about eight years younger than I am, and I’m still living in the 1960s….


(Quotes—somewhat out of context—from this Greenhouse speech.)

Tags: Whelan

Pushing for Southwick


Tina Brown on Chief Justice Roberts


Vanity Fair’s Tina Brown offers her deep insights on Chief Justice Roberts’s recent seizure:


No matter what his doctors eventually tell John G. Roberts Jr., or the world, about the diagnosis and outlook for his seizure disorder, it is clear that something changed irrevocably following the 52-year-old chief justice’s momentary loss of consciousness on a vacation island dock on Monday afternoon.

He lost his privacy, and with it the aura of invincibility that came with his youthful good looks and spectacular career path.

Barely a month ago, he was presiding over the close of a dramatic Supreme Court term in which he and his ideological allies were clearly ascendant.…


Then out of the blue, on a clear summer day, he became a middle-age man in need of emergency medical treatment, hospitalized and confronting the implications of a condition that could affect his life in big and small ways like requiring daily medication or making it inadvisable to drive a car.

In October, when he returns to his seat at the center of the Supreme Court bench, will colleagues and courtroom spectators see the same golden youth whose trajectory was unmarked by setback or sorrow? Or will they see someone suddenly vulnerable, with a medical condition that, while treatable and shared by millions, can still inspire fear?

Or to dig deeper, might this encounter with illness even change the way John Roberts sees himself, his job or the world? … Could adversity temper a jurisprudence that critics of the chief justice have discerned as bloodless and unduly distant from the messy reality of the lives of ordinary people who fail to file their appeals on time?


Oops, wait a second.  That’s actually from an article by Linda Greenhouse in today’s New York Times.  My apologies to Ms. Brown.

Tags: Whelan

McConnell/Specter resolution on Southwick


Senate Republican leader Mitch McConnell has just offered, as an amendment to legislation pending on the Senate floor (and with Senator Specter’s support), a Sense of the Senate resolution that Judge Leslie Southwick’s nomination to the Fifth Circuit “should receive a vote by the full Senate.”  I’m no expert on the intricacies of Senate floor procedures, but a couple Senate staffers whose judgment I trust are optimistic that the Sense of the Senate resolution will be voted on. 


On the merits, Southwick’s attackers have zero ammunition.  Their primary advantage is their ability to keep the nomination a low-profile matter and thus to minimize the political costs of their obstruction.  The McConnell/Specter amendment seems a smart move (if only a first step) to raise the nomination’s profile and to put pressure on the Senate Judiciary Committee to report the nomination to the full Senate.  Kudos to McConnell and Specter.

Tags: Whelan

NRO Editorial on Southwick Nomination


Here’s NRO’s fine editorial—“Character Test”—from yesterday.  

Tags: Whelan

Cuomo and War Powers


In USA Today today (see why that was a dumb name for a newspaper?), Mario Cuomo is angry about something or other on the subject of war powers and the Constitution.  Sort of.  I guess.

He begins by writing that back in 2002, in the run-up to the Iraq war, “Congress could have–and should have–immediately insisted that by virtue of the unmistakably clear language of our Constitution, the power to declare war resides in the Congress and not the presidency.”  But no one ever claimed otherwise, and Congress certainly asserted itself at the time.

As Cuomo then tacitly concedes, the Congress exercised its constitutional power in the authorization it passed for war in Iraq.  His complaint is not really that the Constitution was flouted, but that it was followed, with results he dislikes.  Then, changing the subject again, he writes this priceless sentence:

Unfortunately, the justices [of the Supreme Court] are very reluctant to intervene in any dispute between Congress and the president over war powers, particularly when Congress has made the mistake of authorizing it.

Unfortunately?  A president requests authority to wage war.  Congress grants it.  And Cuomo thinks it is unfortunate that the judiciary won’t step in to gainsay the joint determination of the other branches?

Shortly thereafter, Cuomo seems to lose interest in his own ostensible argument, meandering off into questions of the war’s necessity, wisdom, tactics, the prospects of extrication, his own deep funk about the “tragedy of Iraq” (apparently the tragic prospect of victory while a Republican sits in the White House).  Just at the end, waking up from his nap, Cuomo returns to bleating about the “clear language of the Constitution,” about which he has had . . . really . . . nothing to say.

Mario Cuomo is now practicing law.  Whatever he’s billing by the hour, it’s too much.

Re: Constitutional Sleight of Hand


My post this morning on whether Bill Clinton could be elected vice president (and possibly succeed to the presidency) drew some reader comments, some agreeing with me, others disagreeing.

The most interesting disagreement came from a reader who pointed me to an article in National Review itself, on June 16, 1964, in which James Jackson Kilpatrick argued that former President Eisenhower could constitutionally be elected vice president on the Goldwater ticket.  I’d never heard of this, but I’ve read Kilpatrick’s article now–and the support he elicited in later issues of NR from some GOP members of the Congress that wrote the 22nd Amendment–and I think the position is strongly argued but not, in the end, persuasive.

Kilpatrick reviews the peregrinations of constitutional language as the proposed 22nd Amendment made its way through the two houses of Congress in 1947.  For him it is of paramount importance that early drafts of the amendment made a previous two-term president simply ineligible to be president, whereas the final language referred only to his ineligibility to be elected president, from which Kilpatrick (like Brian Gray) infers that non-electoral pathways to the presidency remained open.  But by Kilpatrick’s own account, the debate in Congress never took up this question directly.  As he notes, with the various drafts advanced, the debate was at pivotal moments all about the best language that would prevent a sitting second-term president from continuing in office.  But stressing this proves too much, for the ultimate language barred any previous occupant of the presidency for two full terms (and possibly nearly two years more, if succeeding from the vice presidency), whether he was a current occupant or not.

From Kilpatrick’s no doubt accurate narrative, I would draw the conclusion that the final language’s reference to being “elected president” for a third term rather than simply becoming president was largely accidental.  No one was thinking deliberately of leaving the door open to former two-term presidents to serve again by succession from the vice presidency.  Was the door nonetheless left open?  Kilpatrick hews to a highly literal reading of the letter of the 22nd Amendment and says it was.  As I said this morning, I would revert to the amendment’s purpose and say it was not.

No matter what was said in Congress, what did the ratifying state legislatures–and behind them both, the American people in whose name they acted–think they were doing?  They plainly thought they were telling any president who had served his two terms (or 6 to 10 years if he had succeeded from the No. 2 slot himself) that he was through.  Done.  Finished.  Being.  President.  For keeps.  No encores.

In light of this purpose–and the related language of the 12th Amendment–any member of the electoral college must ask himself, “Could I constitutionally vote for this person for president?”  If the answer is no, he is duty-bound not to vote for him for vice president either.

In a maneuver too clever by half, Kilpatrick, and some of my correspondents today, suggest that their view is strengthened by the eligibility of an Eisenhower in 1964 or a Clinton in 2008 to become Speaker of the House, and to succeed to the presidency from that office should enough dominoes fall (so to speak).  I’ll set to one side the very real doubts that might be raised about the statutory place of the Speaker in the line of succession–just substitute any of the Cabinet officers undoubtedly in line and the argument would be the same.  This is a more difficult question than “could Ike or Clinton be elected vice president and thence succeed?”  It is not touched at all directly by the text of either the 12th or the 22nd Amendment.  Of course a former two-term president could be, say, secretary of state (and Bill Clinton would probably love it).  But if I am right about the purposive meaning of the constitutional provisions on eligibility to the presidency, he would be just as much barred as was the immigrant Henry Kissinger, explicitly ineligible under Article II.

A final word.  Brian Gray’s argument today, and that of J.J. Kilpatrick four decades ago, are exceedingly lawyerly.  And I don’t mean that in a good way.  There is almost no chance that questions like these would ever come before the Supreme Court, and they shouldn’t, even if events move to make such a case possible.  These are questions for the people of the United States.  They know what they meant to do in limiting presidential terms.  And even those of us (like me) who think such term limits a bad idea would not stand for any finagling that puts a former president who has grasped the brass ring twice within reach of another ride on that carousel.

Constitutional Sleight of Hand


Kathryn links over at The Corner to an L.A. Times op-ed by California law professor Brian Gray that asks whether Bill Clinton, after two terms as president, is nevertheless eligible to be elected vice president–and then to serve again as president should a vacancy arise.  His answer is yes.  Mine is no.

We academic interpreters of the Constitution are prone to these parlor games to while away five minutes with a student in the office.  Converted into a pseudo-serious article such as Gray’s, the exercise falls squarely in the genre that asks, “can we fiddle around with the text of the Constitution until we make readers believe it means the opposite of what it says?”

Gray pads out the article with some early history of how vice presidents were originally chosen (as runner-up in the presidential election), but the burden of his argument rests on how to read the 12th and 22nd Amendments (he mistakenly refers to the 24th at one point when he means the 22nd).  Here are the relevant portions of constitutional texts:

12th:  “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

22nd:  “No person shall be elected to the office of the President more than twice . . .”

Gray’s take on the latter is that “the [22nd] amendment does not preclude a former two-term president (such as Clinton) from serving as vice president.  Nor does it preclude a former two-term president’s succession to the presidency for all or part of a third term.”

Of the former, he writes that Clinton is “ineligible for election to a third term [as president],” thanks to the 22nd Amendment, “but he is constitutionally eligible to succeed to the presidency after election to the vice presidency,” and therefore the 12th Amendment is no barrier to such election.

Riiiigght.  Start with the question of what the 12th Amendment is about.  It’s about how presidents are elected, namely by the votes of the electors in what’s popularly called the “electoral college” (a phrase not appearing in the Constitution).  For whom could those electors cast their ballots, for either president or vice president, when the amendment was added in 1804?  Any native-born citizen of at least 35 years of age who has “been fourteen Years a Resident within the United States” (Article, II, section 1, clause 5).

The 22nd amendment, by stating that no person may be elected president more than twice, changed the rules for determining the validity of those ballots that electors cast.  Now they may cast their ballots for any native-born citizen, 35 or older and resident in the U.S. for 14 years, who has not been elected twice to the presidency.  Since the ordinary path to the presidency contemplated by the Constitution is via the ballots of these electors, then by any ordinary mode of legal reasoning, the 22nd Amendment changed the answer to the question–who is “constitutionally ineligible to the office of President”?–which ballot-casting electors must ask themselves.  Now the class includes aliens, immigrants, citizens under 35, others failing the residency requirement, and persons previously elected twice (or having served one term elected and more than half of another’s term after succeeding from the vice presidency–another requirement of the 22nd Amendment).

It follows from the 22nd Amendment that Bill Clinton, being “constitutionally ineligible” to be elected president, is ineligible to become president by another route.  He is, in short, ineligible to be president, and therefore ineligible to become vice president under the 12th amendment.

A famous legal scholar once condemned “clause-bound interpretivism” that treats the words of the text in isolation from one another, rather than as parts of a whole that has an integrated meaning and purpose.  Sometimes this criticism is turned against a straw-man originalism that isn’t the real thing.  I don’t know whether Gray would call himself an originalist or not, but his article treats the Constitution as a Tinker Toy set to be disassembled and its pieces examined separately, with no attention to the organic structure of the whole that those pieces make.

Sorry, Bill.

Get Well Soon, Chief


Jim Angle just reported on Brit Hume’s Special Report on FNC that Chief Justice Roberts’ fall earlier today was accompanied by a grand mal seizure–whether the cause or the effect of the fall is unclear.  However, he did suffer such a seizure thirteen years ago, with its cause unexplained.  Unlike denizens of the Democratic Underground, decent people of both parties will hope and pray for his swift recovery to full health and vigor.

UPDATE: Official word is now out from the Supreme Court’s press office.


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