Bench Memos

NRO’s home for judicial news and analysis.

Re: Still More on Obama’s [Non-]Conversion


At the risk of exhausting the patience of readers, Gerry, I think that we are disagreeing.  You somehow see a grand victory in Obama’s patently false declaration that “Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.”  As I discussed here, I see a deliberate deception meant to mask the scope of the damage that would result from Obama’s liberal judicial activist picks to the Supreme Court. 


You want us to leave the next move to Obama.  I have no idea what that means.  There’s nothing new about Obama’s claim.  Obama made the same claim in his September 2005 remarks explaining his decision to vote against the confirmation of John Roberts: 


The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.


What sort of a victory was that?  What further move are we awaiting? 


I’m also at a loss as to how you think that I might be “scrambl[ing] legal conservatism.”  What will most damage legal conservatism is the election of a President Obama.  Imagining that Obama is on our team is one way to help achieve that result.

Tags: Whelan

Ronald Dworkin’s The Supreme Court Phalanx


I’ve recently received Ronald Dworkin’s new book, The Supreme Court Phalanx:  The Court’s New Right-Wing Bloc.  The little book—just 70 pages—republishes in four separate chapters four essays by Dworkin that appeared in the New York Review of Books from 2005 to 2007—one on Roberts’s confirmation hearing, one on Alito’s, one on the 2007 partial-birth ruling, and one on the 2006-2007 term generally.


I’ve just read a couple of the chapters this morning and skimmed the others.  One need not wade far into the book to discover that Dworkin—a law professor at NYU and at University College London and, for reasons that escape me, a revered figure in some quarters—is quite unhinged.  At the end of the first chapter of his introduction, Dworkin, summarizing the Supreme Court from 1994 to 2005, asserts that Chief Justice Rehnquist, Justice Scalia, and Justice Thomas “steadfastly defended the most conservative positions possible.”  That assertion is patently false.  For example, on the issue of abortion (about which Dworkin is passionate), Rehnquist, Scalia, and Thomas never took the position that the Constitution prohibits permissive abortion laws.  Rather, they took the middle-of-the-constitutional-road position that the Constitution does not speak to the question of abortion.  (For more on this, see my 2005 essay, “Abortion and Justice:  Let’s hope John Roberts is a genuine moderate”.)  Likewise, on issues of race, the trio never took the position that Brown v. Board of Education was wrongly decided.  Instead, they took the position that the Constitution requires that the government be color-blind.  For someone like Dworkin who associates conservatives with benighted racial views, it is absurd to contend that colorblindness is “the most conservative position[] possible.”  And so on for plenty of other issues.


Here are some other examples of Dworkin’s wild rhetoric:


“The polarization [in the 2006-2007 term] was matched by revolutionary zeal:  the new conservative phalanx overruled an amazing number of past decisions in that term.”  (pp. xi-xii)

“Alito, Roberts, Scalia, and Thomas are judges on a mission:  to destroy the impressive constitutional structures that a long succession of prior justices built and shaped in the decades following the Second World War, and to replace them with cruder principles that burden if not eliminate abortion rights … and allow the executive branch near-dictatorial powers in the so-called ‘war’ against terror.”  (p. xii)

“The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.” (p. 47)

“It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance.”  (pp. 47-48)

“I suspect that [Roberts’s] Senate testimony was actually a coded script for the continuing subversion of the American Constitution.  The worst is yet to come.”  (p. 70)

Even a quick read shows that, beyond his reckless rhetoric, Dworkin can’t be trusted to present legal issues accurately.  For example, Dworkin contends that “[i]n one of the two most politically sensitive of his cases [as a D.C. Circuit judge, Roberts] declared that the federal government has no power under the Constitution’s interstate commerce clause to force a California developer to protect an endangered species of toad that has so far been found only in that state.”  In fact, Roberts’s opinion (in dissent from a denial of rehearing en banc), in arguing that the panel’s approach “seems inconsistent with” Supreme Court precedent, expressly reserved the possibility that there might be “alternative grounds for sustaining application of the [Endangered Species] Act” under the Commerce Clause.  Similarly, Dworkin concocts a flawed challenge to Alito’s testimony that “the question of the unitary executive [as Alito had used the term] does not concern the scope of executive powers, it concerns who controls whatever power the executive has.” 

Tags: Whelan


Still More on Obama’s Conversion


Ed Whelan and I are not disagreeing so much as we are talking about different things.  Ed questions whether the position which Obama says is his, is really his.  Or, Ed questions whether Obama means what we mean when we say things that look and sound just like what Obama said.  Or both.

I am talking about the position itself that Obama described (and says is his).   I think I know legal conservatism when I see it.  And anyone who says that the judicial lion can (does, should) lie down with the lamb up to 99 percent of the time, is singing  a conservative tune. Anyone who says that John Roberts’ picture of calling balls and strikes hits home in all but one case of the hundred, is playing on the Fed-Soc’s team. 

Groucho once said that he would not want to belong to any club willing to have him as a member.  It is tempting to think that any position claimed by Barack Obama on judges just cannot be the movement in which Ed — and I — have long labored.  Yet, there is Obama’s speech, in black and white (and red, not blue).   The next move is, I think, Obama’s, not ours.   What I would not do — and which I fear Ed might, in part, be doing — is scramble legal conservatism just so that Obama’s confessed position, isn’t.

Postscript: Ed mentions (in his most recent post) Ronald Dworkin’s “one right answer” thesis.  I don’t think Dworkin’s views are apposite.   Dworkin argued that the conventional legal materials are usually indeterminate, and that judges routinely must rely upon their own moral principles to actually find the law of the case.  For Dworkin, the “right” legal answer was the answer which was the morally “best” answer which also “fit” the legal materials.  Obama is saying (believe it or not) that conventional legal materials almost always settle matters, and that rarely should judges rely upon their “moral bearings.”

More on Obama’s [Non-]Conversion


Gerry:  I’ll also note that not all “living constitutionalists” believe the Constitution to be broadly indeterminate.  For example, as Judge Posner (in How Judges Think) describes Ronald Dworkin’s views—I’ll acknowledge that it’s been a long time since I myself have read Dworkin—Dworkin believes “that there is one right answer to every legal question.”  So even if one took seriously (as I don’t) Obama’s statement that he believes that there is a clear answer in 95% (or 99%) of all cases, it simply wouldn’t follow that Obama has joined the conservative legal movement (any more than Dworkin has). 

Tags: Whelan

Re: Obama’s Conversion


Except, Gerry, that Obama doesn’t mean his supposed concession about the law’s determinacy and he’s using it to deceive the public into thinking that liberal judicial activism only rarely affects case outcomes.  We’re not in a formal legal proceeding where we can use his statement against him.  We’re in an election where he’s trying to use it against us.  So I’ll defer any celebrating.

Tags: Whelan


Obama’s Conversion


In the heat of forensic battle it is hard to recognize when a concession — even a huge one — has been made.  I tell this to my students in Trial Advocacy all the time, especially when they practice cross-examination. I tell them: listen to the witness’s answer and know when you have won. Then stop. Bank it for your closing argument. Move on to something else, or just sit down.

This comes as news to my beginning students. They keep jabbing at the witness, mauling him or her if given the chance (and, sometimes, even when not). These students mistake the process for the result. They think that the point of cross-examination is precisely to be tough, harsh, combative, as if they get points for being, well, cross. The point of cross-examination is, however, to get what you need from the witness in order to make the closing point you have already decided to make. If the witness serves it up to you on a platter, be glad. It’s a good day. Don’t act like you have been robbed of your birthright, of your one chance to go ten rounds with the champ.

Barack Obama has just handed a great gift to conservatives.  He is now on record (with Wolf Blitzer, if that counts) as saying about the Supreme Court that in “5 percent of cases or 1 percent” the law won’t be clear.  Obama is thus conceding that there may be as few as one case each term in which a Justice would have to resort to his or her own “moral bearings” to decide the matter. ONE CASE!!!. 

This gigantic concession to law’s determinacy will shock the consciences of Obama’s teachers at Harvard Law School, who surely gave much wider berth to the vision thing in matters constitutional. Too bad for Laurence Tribe, who might now want to re-shoot his fawning television commercial for Obama. But, for conservatives, it is very good indeed. It is not time to bicker and argue with Obama about the content of judges’ worldviews, and about the proper scope of judicial deference to legislators in the annual limit case. It is time to stop. Sit down. Kick back. And pop open the bubbly, for Barack Obama has just announced his conversion to the conservative legal movement.


Re: More Obama Support for Liberal Judicial Activism


I’m reminded by this Volokh Conspiracy post that Obama used the same 95% canard in his July 2007 speech to the Planned Parenthood Action Fund (transcribed here*), after referring to Chief Justice Roberts’s intellect:

[I]n the overwhelming number of Supreme Court decisions, [intellect is] enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.  

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be.  Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges.  

* I’ve tweaked the transcript to correct its misspelling of Ginsburg’s name.  Based on my own previous review of the video of the speech, I’ve also made some slight changes to the transcript’s punctuation of the passage and have substituted “criterion” for “criteria”.  (I quoted the last part of this passage in my Weekly Standard essay on Obama’s commitment to liberal judicial activism.)

Tags: Whelan

More Obama Support for Liberal Judicial Activism


In my Weekly Standard essay from mid-March, I showed how Barack Obama’s record and rhetoric on judicial nominations reveal him to be “a leftist partisan who will readily resort to sly deceptions to advance his agenda of liberal judicial activism.”  In a softball interview with CNN’s Wolf Blitzer last week, Barack Obama provided further evidence of his sweeping liberal judicial activism.  Some excerpts from this transcript (emphasis added):


BLITZER: You know a lot about the Supreme Court. And the next president of the United States will have an opportunity to nominate justices for the Supreme Court. He gave a speech, McCain, this week saying he wants justices like Samuel Alito and John Roberts. And he defined the kind of criteria he wants. So, what would be your criteria?

OBAMA: Well, I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it’s just a matter of applying the law. I’m not somebody who believes in a bunch of judicial lawmaking. I think…


*  *  *

OBAMA: What you’re looking for is somebody who is going to apply the law where it’s clear. Now, there’s going to be those 5 percent of cases or 1 percent of cases where the law isn’t clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.  And, in those circumstances, what I do want is a judge who’s sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power, and, as a consequence, can’t protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.


Let’s examine the Obama two-step:


1.  Obama first tries to minimize for the general public the importance of who picks Supreme Court justices.  After Blitzer helpfully assures the audience that Obama “know[s] a lot about the Supreme Court,” Obama asserts—in the context of discussing the Supreme Court—that “95 percent of the time, the law is so clear, that it’s just a matter of applying the law.”  A bit later, he states that “cases where the law isn’t clear” are “5 percent of cases or 1 percent of cases.”


As Obama ought to know, the unanimity rate on the Supreme Court is nowhere near 95%.  According to the Harvard Law Review’s statistics for the past three terms, cases with dissents accounted for 64.4% (2006 term), 45.7% (2005 term), and 62.0% (2004 term) of all cases.  Indeed, last term, cases dividing 5-4 accounted for over a third of all cases, and the three justices that Obama cited as justices he likes—Breyer, Ginsburg, and Souter—agreed in the disposition of non-unanimous cases only 61%, 60%, and 63% of the time, respectively.


Obama could of course maintain that the Court majority is misapplying clear law in lots of cases.  But that’s not his argument.  Instead, he’s pretending that the divide among the justices is far less than it actually is—and that he’s “not somebody who believes in a bunch of judicial lawmaking.”     


2.  When the law isn’t clear, Obama argues, “the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.”  But, contrary to Obama’s position, there is nothing inevitable about the judicial activism that he prescribes.  For example, in cases in which a statute is being challenged as violative of the Constitution, a justice who ultimately finds it unclear whether the statute in fact violates the Constitution ought—under principles of judicial restraint—to let the statute stand.  What possible authority does the justice have for resorting to “his or her own perspectives, his ethics, his or her moral bearings” to strike down the statute? 


It of course sounds enticing that justices should be “sympathetic enough” to side with the “vulnerable” and the “powerless”.  But those are highly manipulable terms that liberal judicial activists apply selectively.  Somehow their sympathies are never exercised for, say, inner-city children deprived of school choice or for the most vulnerable and powerless group of human beings among us, the unborn.  Within the broad bounds of the Constitution, it’s the role of citizens and legislators to decide whether and how to express our sympathies through the democratic processes; it is not the proper role of justices to invoke their own sympathies to override the give-and-take of democratic politics.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of May 12


Liberal judicial ethics and judicial malpractice:
May 122005—Federal district judge Joseph F. Bataillon, appointed by—surprise!—President Clinton, rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause.  One year later, a unanimous Eighth Circuit panel reverses all of these rulings.

May 13 

1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution.  Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.”  But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse:  Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers.  While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award.  In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention.  So much for the fact and appearance of impartiality.   


May 14

1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court.  Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959.  Before that, he had been in-house counsel for the Mayo Clinic.  His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor.  Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Week for January 22)—might fairly observe that the medical profession’s loss was the nation’s … loss.   

May 17

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance.  Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.” 

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution.  The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”  Daughtrey was appointed by President Clinton to the Sixth Circuit in 1993 and continues to sit on that court.

May 181991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000.  Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990.  According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”  The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts.  Just kidding:  There is no sign that follow-up investigations of any sort ever took place.

For an explanation of this recurring feature, see here. 


Tags: This Day in Liberal Activism

Welcome to My Neighborhood


I don’t want to get Gerry Bradley thrown off Senator McCain’s Justice Advisory Committee — and I’m very glad he’s on it to hold the Republican presidential nominee to the standards enunciated in that speech the other day — but I wonder whether Gerry really agrees more with the senator, or more with me. Here’s Gerry’s take on the difference between a presidential nomination of a Supreme Court justice, and a senator’s vote to confirm that nominee:

I submit that the norms or criteria according to which a President should select nominees for the bench differ from the norms and criteria according to which a Senator should decide to confirm (or oppose) the President’s choices. It also seems to me that this difference – whatever exactly it is – amounts to deference: a Senator (such as John McCain) should vote to confirm some nominees which he would not have nominated from the Oval Office. Put differently: that a Senator (such as John McCain) would not himself have nominated, say, Stephen Breyer, is not by itself sufficient reason to vote against Breyer’s confirmation.

We are largely agreed on what Gerry says here. The initiative to shape the future of the Supreme Court rests with the president, who nominates. Senators can only say “yea” or “nay” to those nominations, and for various prudential reasons may wish to say “yea” when the nominee is someone they would very strongly prefer not to see on the Court. They may believe that the nominee is “good enough” but not ideal. They may expect the president to do no better with his next nominee if this one is defeated. They may be able to count heads, see that the nominee is bound to be confirmed regardless of any arguments they might make to the contrary, and decide to join the “yea” votes in order not to antagonize the president or their fellow senators.  I would not call this “deference,” as Gerry does, but a pragmatic political calculation when one is in the minority. It would not exactly be principled behavior (in the strongest sense), but neither would it be blameworthy depending on the circumstances.

McCain’s own statement on the matter was much stronger, and strove to enunciate a principle that animated his votes for Ginsburg and Breyer:

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me. And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsburg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president’s call to make.

As a single paragraph, this travels in such a circle that it comes back to bite itself in the hindquarters.  Senator McCain has his “own standards” for appointing justices, exemplified by Roberts and Alito. I would ordinarily take these to be his notion of what makes a justice “qualified.”  But in the next breath he declares that Ginsburg and Breyer were “qualified,” and inasmuch as there was a president who preferred such nominees and it was his “call to make,” it would have been unprincipled — “petty, and partisan, and disingenuous” — for him to vote against those nominees as a senator.

This is only coherent if Senator McCain is willing to say something like, “Here at Grade C is what I would call a merely qualified nominee to the Court, but I promise to hold my own nominations to Grade A standards.” Yet throughout his speech, McCain rightly rails against the very kind of jurisprudence that is practiced by Justices Ginsburg and Breyer (among others), effectively identifying it with Grade F performance. Could that be seen coming when they were nominated? I think probably so.

Now I understand that Senator McCain is already looking forward to enjoying the presidential initiative in filling vacancies on the Supreme Court. May he romp to the victory that makes his anticipation a reality. But it is this anticipation, not any constitutionally principled obligation, that leads him to identify his votes for Ginsburg and Breyer as positive and obligatory goods, rather than “least bad” choices at the time (or, worse yet, lazy nonchalance at the time). He wants Democratic senators to respond to the same alleged imperative: “Gee, the nominee’s qualified, and it’s the president’s call.” If that helps, it is its own justification. But I would not call it anything like a principled obligation.

Obama’s Catholic Advisors


Last week the indispensable Bill Donohue (President of the Catholic League for Religious and Civil Rights) published some disquieting facts about Senator Obama’s “Catholic National Advisory Council”. By letter dated yesterday the Committee fired back. Donohue’s original press release took the measure of the 26 former or current public officials on the Committee (folks such as Senators Kennedy, Leahy, Dodd, Kerry). Yesterday’s response was signed, however, by what appears to be the whole Committee — including academics and activists to whom Donohue did not explicitly refer.

Their letter asserts in its opening paragraph that Donohue “labeled many of our friends, and some of us, as ‘Catholic dissidents’ because we support Senator Obama”. But Donohue asserted no such thing. Nowhere in his press release last week did Donohue say, imply, or suggest that supporting Barack Obama for President made one a Catholic dissident.

Donohue instead said, and proved upon the basis of published sources, that the public officials are “Catholic dissidents” — not “because” they support Obama, but because (as Donohue stated clearly) “not one [of them] agrees with the Catholic Church on all three major public policy issues: abortion, embryonic stem cell research and school vouchers”. Donohue pointed out, for example, that “[o]f the 20 National Leadership Committee members with a NARAL score, 17 have earned a 100 percent rating. Of those who have less than a perfect score”, Donohue also wrote, “not one is in favor of school vouchers”.

Nowhere in their letter do Obama’s Catholics address the claim Donohue actually made, or his evidence for it. And so Donohue’s claim remains unrebutted: the public officials (at least) on Obama’s Catholic Advisory Council are “Catholic dissidents”.

Mr. Franck’s Neigborhood


When Matt Franck says he prefers another neighborhood to mine on matters constitutional, I have to take a long hard look at where I live. Even more so when Matt moves on to where the redoubtable Shannen Coffin resides. So I am sobered by their disagreement with some of my analysis of McCain’s judges’ speech. I even agree, come to think of it, with Shannen and Matt that Senator McCain has, at times, been non-partisan to a fault on judges. ( I do not count the Gang of Fourteen in this category, however, as do Shannen and Matt.) I would have preferred to see more of the warrior in McCain and less of the peacemaker when he dealt with Scumer, Leahy & Co.

Now we are talking about President McCain, not Senator McCain. I think the main thing now is to take McCain’s judges’ speech as his pledge and determine to hold him to it. (I am on his Justice Advisory Committee and mean to do my share of the holding.) But it is worth noting, too, that I disagree with Matt’s suggestion that Senator McCain’s “deference to the President” position is “insupportable”. Leave aside whether, all things considered, Senator McCain should have voted to confirm Ruth Ginsburg and/or Stephen Breyer. Call what we are talking about something other than “deference” if you wish. I submit that the norms or criteria according to which a President should select nominees for the bench differ from the norms and criteria according to which a Senator should decide to confirm (or oppose) the President’s choices. It also seems to me that this difference — whatever exactly it is — amounts to deference: a Senator (such as John McCain) should vote to confirm some nominees which he would not have nominated from the Oval Office. Put differently: that a Senator (such as John McCain) would not himself have nominated, say, Stephen Breyer, is not by itself sufficient reason to vote against Breyer’s confirmation.

Another Conrad for the Fourth Circuit


Yesterday, President Bush nominated Virginia district court judge Glen Conrad to a seat on the U.S. Court of Appeals for the Fourth Circuit.  As How Appealing notes, he is now the second Bush nominee for the Fourth Circuit with the surname “Conrad,” and he joins the long list of nominees for that court awaiting Senate action.

The Choice Is Easy


I am more in the neighborhood of Shannen Coffin than of Gerry Bradley when it comes to John McCain’s speech on the judiciary the other day.  I was particularly unpersuaded by the reasons McCain gave for his role in the Gang of Fourteen deal (which did nothing for the confirmations of Roberts and Alito), and for his votes for the confirmation of Ginsburg and Breyer (which rests on an insupportable “deference to the president” principle that is a favorite of people who are–or want to be–president).

But when I see what passes for arguments from McCain’s academic critics such as Geoffrey Stone (debunked by our Ed Whelan) or Sheldon Goldman (see this NYT story), my misgivings turn into mere quibbles.  And when I have a gander at what Barack Obama has said on the Constitution, my quibbles are converted into outright enthusiasm for John McCain.

What, you ask, has Barack Obama, that former “distinguished lecturer” at the University of Chicago, said on the Constitution?  Have a look at this speech given last July before the Planned Parenthood Action Fund, brought to my attention by the ever-alert Joe Knippenberg at NLT.

Compare these two speeches.  The contrast is clear.  The choice is easy.

Target of Opportunity


The Chronicle of Higher Education collects brief comments pro and con on the proposition that John Yoo should lose his tenured position at Berkeley’s law school because of memos he wrote regarding interrogation tactics while serving in DOJ’s Office of Legal Counsel.  The apogee of the flight from reality is when one of Yoo’s enemies avers that he “acted directly and deliberately, in his capacity as an employee of the U.S. government, to facilitate war crimes.”  Of this, of course, there is no evidence.  Indeed, identifying just what those “war crimes” are (committed by others, mind you), for which he could be held responsible even in the most remote sense, would tax Yoo’s critics beyond even their imaginative abilities.  Then again, some of them blame him for Abu Ghraib, so perhaps I should not underestimate their hallucinations.

This foolish academic broil comes down to essentially political disagreements with Yoo’s service in the Bush administration.  He is a convenient target because his arguments were so plain and forceful, not because they were wrong (although some of them may have been), and certainly not because they were “screamingly disingenuous,” as one of his attackers puts the alternative.  (No one who has read a paragraph by John Yoo could ever accuse him of being disingenuous.)

The stench of opportunism is particularly strong when we ponder the impact on human lives of the arguments made by legal academics.  If John Yoo has to go, what of all those law professors who have made baldly political arguments, completely divorced from the actual Constitution, for abortion on demand?  Or who have so diligently worked to give surrogates the power to cause the deaths of such helpless persons as Terri Schiavo?  Any harm John Yoo might have caused is purely hypothetical by comparison to these real offenses against the rule of law and the rights of the vulnerable.

Turbulence on Sixth Circuit Nominations


The Senate Judiciary Committee held a hearing yesterday on the three judicial nominations in Michigan—two to the Sixth Circuit, one to the district court—resulting from the White House’s deal with Michigan senator Carl Levin.  As this report indicates, the hearing was surprisingly contentious, especially with respect to the nomination of Levin’s former cousin-in-law (and former Clinton nominee), Helene White.

Tags: Whelan

Stoned Again


Ho, hum:  Another idiotic tirade from University of Chicago law professor Geoffrey R. Stone.  I’ve previously documented (see here and here, including links within those posts) the intellectual bankruptcy of Stone’s rantings.  Now Stone contends that John McCain’s speech of judges “might very well qualify as one of the most ignorant statements ever made by a presidential candidate on this important subject.”


Well, let’s see who is the real ignoramus:


1.  Stone finds it remarkable that McCain could complain that judges “systematically ‘abuse’ the federal judicial power by issuing ‘rulings and opinions on policy questions that should be decided democratically.’”  According to Stone, McCain “is apparently blissfully unaware that the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting U.S. Supreme Court justices and 12 of the last 14 Supreme Court justices were appointed by Republicans.”


Stone’s rejoinder is a glaring non sequitur.  It’s hardly news that some of the worst liberal judicial activists—from Warren and Brennan to Stevens and Souter—have been Republican appointees.  In addition, McCain’s criticism, as he makes clear in the same paragraph Stone quotes, is plainly about “some federal judges,” so there is nothing in his criticism that justifies Stone’s inference that McCain must be complaining broadly about Republican appointees. 


2.  Stone then contends that McCain “also seems stunningly unaware that the justices he simplistically lauds as ‘judicial passivists’ are nothing of the sort.”  But McCain never uses the term “judicial passivists” in his speech (and, so far as I can tell from a Google search, he’s never used it anywhere).  Nor would it be a sensible synonym for practitioners of judicial restraint, as the term “judicial passivism” more naturally connotes the judicial error of failing to enforce actual constitutional rights (as I discuss in point 2 here).  (But, hey, if you can’t use your authority as a law professor to pass off phony quotes, how can you expect your students to believe all the nonsense you say in the classroom?)


More importantly, Stone’s assertion that the justices McCain praises have engaged in “conservative activism gone wild” is, to put it mildly, a highly contestable proposition that generally rests on bad constitutional theory, wordplay, and gerrymandered statistics.  I won’t repeat my various refutations of that proposition here.  For present purposes, it suffices that one need not be “stunningly unaware” of Supreme Court decisionmaking in order to have a view very different from Stone’s.


3.  The bulk of Stone’s essay is his rambling discussion of the Framers’ views about the role of judges.  Stone evidently imagines that he is refuting some proposition that McCain asserted, but I don’t see what it is.  Stone argues that the Framers saw advantages in life tenure for federal judges.  How is that point incompatible with McCain’s observation that some judges have abused their life tenure and that we need to work hard to pick good judges (not to abolish life tenure)?  Stone argues that the Framers expected judges to enforce constitutional rights.  McCain plainly expects that as well.  His dispute is with judges who invent rights that aren’t in the Constitution and ignore rights that are.


Tags: Whelan

McCain’s Other Speech


Just this morning I read Thomas Farr’s important paper in the March/April issue of Foreign Affairs. Now a visiting professor at Georgetown, Farr was the first Director of the State Department’s Office of International Religious Freedom. In the recent article, Farr makes a cogent case for the proposition that (in his words) “U.S. diplomacy should move resolutely to make the defense and expansion of religious freedom a core component of U.S. foreign policy.” He notes the upcoming tenth anniversary of the “landmark” International Religious Freedom Act, which mandated that religious liberty be a central part of our foreign affairs. But, Farr laments, neither the Clinton nor the Bush Administration nor the State Department itself has viewed the IRFA “as anything more than a narrow humanitarian measure unrelated to broader U.S. interests.”

But, then, before I had time to despair (or reach for Jack Daniels), across the transom arrived the text of Senator McCain’s talk this morning at Oakland University (the Oakland in Michigan, not Gertrude Stein’s). The talk is titled “Defending the Freedom and Dignity of the World’s Vulnerable.” The whole text (here) is worth a read, but this excerpt is an answer to Tom Farr’s prayers (and mine):

There is no right more fundamental to a free society than the free practice of religion. Behind walls of prisons and persecuted before our very eyes in places like China, Iran, Burma, Sudan, North Korea and Saudi Arabia are tens-of-thousands of people whose only crime is to worship God in their own way. No society that denies religious freedom can ever rightly claim to be good in some other way. And no person can ever be true to any faith that believes in the dignity of all human life if they do not act out of concern for those whose dignity is assailed because of their faith. As President, I intend to make religious freedom a subject of great importance for the United States in our relations with other nations. I will work in close concert with democratic allies to raise the prominence of religious freedom in every available forum. Whether in bilateral negotiations, or in various multi-national organizations to which America belongs, I will make respect for the basic principle of religious freedom a priority in international relations.

McCain’s Judicial Advisory Committee, BTW


For Immediate Release

Contact: Press Office

Tuesday, May 6, 2008


ARLINGTON, VA — Today, U.S. Senator John McCain announced his Justice Advisory Committee to the Campaign. Please find below the Chairs and members of the Committee:

Chairs Of The Justice Advisory Committee:

Theodore B. Olson former Solicitor General of the United States
Senator Sam Brownback United States Senator, Kansas

Steering Committee

Michael Abramowicz — Professor of Law, George Washington University Law School
Hon. William P. Barr — former Attorney General of the United States
Gerard V. Bradley — Professor of Law, Notre Dame Law School
Rachel Brand – former Assistant Attorney General for Office of Legal Policy
Steven Calabresi — George C. Dix Professor of Law, Northwestern University School of Law
Dean Ronald A. Cass — Chairman, Center for the Rule of Law; Dean Emeritus, Boston University School of Law
Senator Daniel Coats – former United States Senator, Indiana
Manus M. Cooney — former Chief Counsel and Staff Director, U.S. Senate Committee on the Judiciary
Charles J. Cooper — former Assistant Attorney General, Office of Legal Counsel
Arthur B. Culvahouse, Jr. — former White House Counsel to President Ronald Reagan
Carol E. Dinkins — Partner, Vinson & Elkins
John F. Duffy — Oswald Symister Colclough Research Professor of Law, George Washington University Law School
Miguel A. Estrada — former Assistant to the Solicitor General of the United States
Charles Fried — Beneficial Profes sor of Law, Harvard Law School; former Solicitor General of the United States
Sandra S. Froman — Arizona attorney
Richard W. Garnett – Professor of Law, Notre Dame Law School
Robert P. George — McCormick Professor of Jurisprudence, Princeton University
Senator Lindsey Graham — United States Senator, South Carolina
Senator Phil Gramm – former United States Senator, Texas
Governor Frank Keating – former Governor of Oklahoma
Orin S. Kerr — Professor, George Washington Universit y Law School
Senator Jon Kyl – United States Senator, Arizona
Christopher Landau — Partner, Kirkland & Ellis LLP
Senator Trent Lott — former United States Senator, Mississippi
Randy Mastro — former Deputy Mayor of New York City
John O. McGinnis — Professor of Law, Northwestern University School of Law
Maureen E. Mahoney – former Deputy Solicitor General of the Unites States
Thomas W. Merrill — Charles Keller Beekman Professor, Columbia Law School
Marc L. Mukasey — Partner, Bracewell & Giuliani LLP ; former assistant U.S. attorney for the Southern District of New York
Caleb Nelson — Professor of Law, University of Virginia School of Law
Eileen J. O’Connor — former Assistant Attorney General, Tax Division, U.S. Department of Justice
Hon. Thomas R. Phillips — former Chief Justice of the Supreme Court of Texas
Edward R. Reines — Partner, Weil, Gotshal & Manges LLP
Kristi L. Remington — former Deputy Assistant Attorney General in the Office of Legal Policy
Professor Daniel B. Rodriguez — Minerva House Drysdale Regents Chair in Law, The University of Texas at Austin Scho ol of Law
Nicholas Quinn Rosenkranz – Associate Professor of Law, Georgetown University Law Center
Ronald D. Rotunda — University Professor and Professor of Law, George Mason University
Cathy Cleaver Ruse — Senior Fellow for Legal Studies at the Family Research Council; Governor, Ave Maria School of Law
Peter B. Rutledge — Associate Professor of Law, University of Georgia School of Law
Jon A. Sale — former federal prosecutor for NY and Miami; former law professor, Nova Southeastern and St. Thomas
John Smietanka – former U.S. attorney
Stephen F. Smith — Professor of Law, John V. Ray Research Professor, University of Virginia School of Law
George J. Terwilliger, III — former Deputy Attorney General of the United States
Senator Fred Thompson – former United States Senator, Tennessee
Eugene Volokh — Gary T. Swartz Professor of Law, UCLA School of Law
Dan K. Webb – Chairman, Winston & Strawn; former U.S. Attorney for the Northern District of Illinois

Re: There’s Definitely Skepticism


Kathryn, your correspondent makes some telling criticisms of Senator McCain, but I think his take on McCain’s 1999 comments on Roe is mistaken.


It seems to me that when McCain said that the country was not ready to overturn Roe, he clearly meant only that the country was not ready to see abortion outlawed. That is both a true statement and something President Bush has said many times without pro-lifers’ complaining about it. He clarified his remarks pretty quickly. McCain has consistently voted against abortion as a legislator, and last year he told me, on the record, that he thinks that the Supreme Court should overturn Roe—which is more than Bush has said.



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