Bench Memos

NRO’s home for judicial news and analysis.

Jeffrey Toobin’s The Nine—Part 1


In this and some additional posts, I’m going to discuss The Nine:  Inside the Secret World of the Supreme Court, a new book by Jeffrey Toobin (of CNN and the New Yorker).  Drawing heavily on interviews with some (unnamed) justices and lots of law clerks, Toobin aims to provide an insider’s account of the Supreme Court over the past two decades.  His basic thesis is that Justices O’Connor, Kennedy, and Souter “doomed the counterrevolution” that conservatives sought, but that with President Bush’s appointments of Chief Justice Roberts and Justice Alito that counterrevolution “has now begun.” 


O’Connor is the hero of Toobin’s book.  She “steered the Court in line with [her] own cautious instincts—which were remarkably similar to those of the American people.”  Intending it as praise, Toobin states:  “[F]or O’Connor there was little difference between a judicial and a political philosophy.  She had an uncanny ear for American public opinion, and she kept her rulings closely tethered to what most people wanted or at least would accept.”  (I’ll critique this conception of the judicial role in a later post.)


Alito, by contrast, is a prime villain, or at least anti-hero, of Toobin’s story.  According to Toobin, O’Connor regarded President Bush’s nomination of Alito as “a direct affront,” and his replacement of her threatens to undue the supposed “centrism and moderation” that Toobin regards as her legacy.


The topic of abortion plays a central role in Toobin’s book—and in the sharp contrast he draws between O’Connor and Alito.  For this reason, I’d like to draw attention to the slippery anecdote with which Toobin introduces Alito.


Five pages into his first chapter (on page 16), Toobin discusses this May 1985 memo that Alito, as an assistant to the solicitor general in the Reagan administration, wrote regarding the United States’s participation in the Thornburgh abortion case. The Third Circuit had struck down the informed-consent provision and several other provisions of Pennsylvania law. In his memo, Alito agreed with the recommendation of the Justice Department’s Civil Division and Office of Legal Policy that the United States file an amicus brief in support of the constitutionality of the Pennsylvania provisions.


Toobin states, correctly, that Alito faced the question “how best to persuade the Court to overturn Roe v. Wade—all at once or a little bit at a time.”  Toobin then asserts that “Alito wound up recommending an aggressive line of attack against Roe.”  But Alito was expressly arguing against an aggressive attack on Roe—and in favor of “nudg[ing] the Court toward the principles in Justice O’Connor’s [1983] Akron dissent, to provide greater recognition of the states’ interest in protecting the unborn throughout pregnancy, or to dispel in part the mystical faith in the attending physician that supports Roe and the subsequent cases.”  As Alito put it, “I find this approach preferable to a frontal assault on Roe v. Wade”—an approach that others were advocating.  (Quotes are from page 17 of his memo.)


So, from the outset, Toobin’s reader is misled into thinking that Alito, in faithfully advancing the legal positions of the administration for which he worked, was aggressively seeking to overturn Roe when he was in fact pursuing an incrementalist approach designed to advance the principles that O’Connor had espoused.  And the reader, informed only that the “solicitor general filed a brief much in line with what Alito recommended” and that the case “turned out to be a clear defeat for the Reagan administration,” does not learn that the positions that Alito advanced on informed-consent regulations were essentially the same ones that Justice O’Connor adopted in her dissent in Thornburgh and in her 1992 opinion in Planned Parenthood v. Casey.


Of course, stating these basic points clearly and accurately would rather have undermined Toobin’s primary narrative line.  Inconvenient things like facts can get in the way of a story.

I’ll deal in a later post with the defects in Toobin’s account of the differences between O’Connor and Alito (as a Third Circuit judge) over the spousal-notice provision at issue in Planned Parenthood v. Casey.  I’ll also present a slew of other factual errors and distortions that ought to make the reader leery of placing trust in Toobin’s stories.  And I’ll discuss broader questions of judicial philosophy that Toobin treats in an inadequate, indeed cartoonish, manner.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of September 24


Sept. 24     1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution.  In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.…  When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Week Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit.


Sept. 26     2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship.  (See here for documentation.)


 Sept. 29    1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy.  The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program.  After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.”  Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply.  As leading liberal scholar Laurence Tribe recently acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”  Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism


Toobin or Not Toobin


I probably won’t read Jeffrey Toobin’s new book The Nine: Inside the Secret World of the Supreme Court.  I’m certainly not in a hurry to do so.  Maybe in a hammock next summer.  I haven’t even gotten around yet to Jan Crawford Greenburg’s Supreme Conflict, which many have hailed as a really good book.  The Nine seems to fall into the category of the higher gossip, with little of value to add to our store of knowledge.  Judging from David Margolick’s review in today’s NYTBR, Toobin has made himself the willing grindstone of axes wielded by Stephen Breyer, Anthony Kennedy, and above all Sandra Day O’Connor. 

A few years ago Justice O’Connor published a soporific little tome called The Majesty of the Law, its title promising what the book delivered, vacuous little essays stuffed full of duck-billed platitudes.  Now Jeffrey Toobin becomes the effective ghost-writer of the first draft of O’Connor’s “secret” memoirs, in which she is revealed as seething with resentments against people who won’t take direction from Her Majesty of the Law.  The really sad thing about O’Connor is that she probably identifies the platitudes and the self-importance as one and the same thing.  Les lois, c’est moi.  What an indecently arrogant human being.

D.C. Event on New Supreme Court Term


Next Wednesday, September 26, the Federalist Society is hosting a lunchtime panel discussion of the leading cases that the Court will address in its upcoming term.  ABC News’s Jan Crawford Greenburg will serve as moderator.  See here for more information or to register to attend.

Tags: Whelan

Columbia Law School Debate


Next Tuesday, September 25—just before the start of the Supreme Court’s new term—I will be debating Emily Bazelon of Slate at Columbia Law School in an event titled “John Roberts:  Restrained Judicial Conservative or Conservative Judicial Activist?”  The event, which is jointly sponsored by the law school’s chapters of the Federalist Society and of the American Constitution Society, begins at 12:15 (in Jerome Greene 103) and includes lunch. 

Tags: Whelan


Jeffrey Rosen on Justice Stevens


Jeffrey Rosen has a long and interesting article on Justice Stevens in the forthcoming issue of the New York Times Magazine.  Rosen paints a very sympathetic (one might even say fawning) portrait of Stevens:  “I was especially impressed with Stevens’s character: his engagement, curiosity, combination of toughness and vision, strong internal compass and refusal to go along with the crowd, his decisiveness, analytical power, modesty (but not false modesty), devotion to the court as a steady institution and sense of wonder and gratitude for the remarkable opportunities that had come his way.”  But the careful reader will discern the incoherence and idiosyncratic willfulness that mark Stevens’s Supreme Court career.


Stevens claims to be a “judicial conservative,” which (according to Rosen) “he defined as someone who tries to follow precedents and ‘who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them.’”  (Emphasis added.)  I’ll pass over for now whether someone who aims to preserve the liberal activist precedents of the past four decades deserves the title of “judicial conservative” more than someone who aims to be faithful to the actual Constitution.  I’d instead like to show how Stevens’s own words show that he is not someone “who submerges his … own views of sound policy to respect those decisions by the people who have authority to make them.”  Consider:


1.  Stevens states (in what Rosen presents as the first of the “identifiable ideas and themes” in Stevens’s legal thinking) that “one of the overriding principles in running the country is the government ought to be neutral….  It has a very strong obligation to be impartial, and not use its power to advance political agendas or personal agendas.”  (Emphasis added.)  What a remarkable and bizarre notion—that a government elected by the people to advance a political agenda should not use its power to advance that political agenda!  So much for even recognizing the general scope of political authority.


2.  On the specific matter of abortion, Rosen refers to Stevens’s kooky argument that abortion regulations violate the Establishment Clause.  He then quotes Stevens: 


“I think the less judges have to decide the better, and I frankly look at who should decide this,” he told me. “Obviously, I think basically the woman is the person most affected by it and has tremendously important interests; better to have her decide these questions with her own counselors and guidance than to have judges and legislators deciding something like this.”


Stevens’s judgment is plainly a pure policy judgment, not a judgment about where the Constitution leaves decisionmaking on abortion.  (Plus, of course, he is all in favor of judges’ deciding that the matter is off limits to legislators; fidelity to the principle of “the less judges have to decide, the better” would lead to deference to legislative enactments.) 


3.  Rosen provides a truly bizarre anecdote about how Stevens’s World War II experience shaped Stevens’s views on the death penalty:


[Stevens] helped break the code that informed American officials that Adm. Isoroku Yamamoto, the commander of the Japanese Navy and architect of the Pearl Harbor attack, was about to travel to the front. Based on the code-breaking of Stevens and others, U.S. pilots, on Roosevelt’s orders, shot down Yamamoto’s plane in April 1943.

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately.


Once again, Stevens’s judgment is a pure policy judgment that has nothing to do with where the Constitution vests decisionmaking authority on the death penalty.  Stevens’s particular sympathy for Admiral Yamamoto also seems badly confused.  I suppose that we can be grateful that Osama bin Laden never lived in the United States and never became friends with the Americans he killed, or Stevens’s rulings in national-security cases might be even worse than they are.


4.  Rosen identifies as another theme of Stevens that “the court has an obligation to protect ideals of equality and liberty in light of the nation’s entire history, rather than legalistically parsing the original understanding of the Constitution.”  (Emphasis added.)  Like the usual “living Constitution” rhetoric, appeals to construing the Constitution “in light of the nation’s entire history”—what determinate meaning could that possibly have?  how could it legitimately expand the realm of judicial power?—enable judicial lawlessness.  Disparaging serious examination of original meaning as “legalistic[] parsing” is epithet-flinging, not serious argument.

Tags: Whelan

D.C. Tax Haven?


Three cheers for the defeat this week of the obviously unconstitutional bill to give Washington, D.C. a seat in the House of Representatives.  I agree with John J. Miller over at The Corner that the Heritage Foundation has a good idea for D.C.–no income tax on its residents, since they are unrepresented in Congress.

A funny postscript–a reader writes in:

After your commentaries on the  DC Voting bill (which, to be clear, I agree with), is it intended to be black humor that Bench Memos and the Corner are presently running ads for the DC Vote folks? ;)

I don’t see them myself here or at The Corner, but I think that’s because they’re rotating (algorithmic?) Google ads.  Next time I come back (especially after posting this), maybe I’ll see them.  I guess this is the web equivalent of the Hyde Park Speaker’s Corner.  Everybody gets to shout at you, more or less at random . . .

“Algorithmic,” by the way, sounds frighteningly like a dance move by a former vice president.

UPDATE 9/23: Oh there’s the ad–not a Google ad at all, it seems.  Some outfit called “DC Vote.”  The reader who saw “black humor” in this placement has a point, after all the opposition stated all over NRO.

Supposed Conservative Opposition to AG Nominee Mukasey


On the Volokh Conspiracy, Ilya Somin soundly critiques a silly essay by Slate’s Dahlia Lithwick.  As Orin Kerr (also of the Volokh Conspiracy) charitably puts it, “Dahlia Lithwick is a very funny writer, but she often leaves behind her normally sharp analytical skills when she writes about conservatives.”

Tags: Whelan

Re: Acting Attorney General Peter Keisler


Some more sharp contrasts to the New York Times’s wild mis-assessment of Keisler:  The Washington Post, in a house editorial on November 17, 2006, stated that Keisler “certainly warrants confirmation” of his D.C. Circuit nomination.  And the Los Angeles Times, in a January 17, 2007, house editorial that encouraged Senate Democrats to display a “cooperative spirit” rather than “obstructionism” and to “forswear knee-jerk opposition to Bush appointees who are within the legal mainstream,” specifically recommended that Senate Democrats confirm Keisler’s D.C. Circuit nomination.

Tags: Whelan

Acting Attorney General Peter Keisler


In announcing his nomination of Michael Mukasey to be Attorney General, President Bush also named Peter Keisler to serve as acting Attorney General.  Keisler, who is widely regarded as one of the very finest attorneys in the country, heads DOJ’s Civil Division and for over a year has had pending his nomination to a judgeship on the D.C. Circuit.  He had recently announced his intention to leave DOJ, but now will be staying on for a while longer. 


Everyone should be grateful for Keisler’s continued service.  Alas, here is how the New York Times’s house editorial on the Mukasey nomination presents the news:


Mr. Bush also announced yesterday that he was replacing Acting Attorney General Paul Clement, who was to serve until the Senate confirmed Mr. Gonzales’s successor, with Peter Keisler, a hard-line movement conservative. Mr. Bush’s sleight of hand in installing Mr. Keisler is an unfortunate indication that he intends to keep the department politicized for as long as he can.


Never mind that there was a public announcement by the President, not a “sleight of hand.”  Never mind that no one who understands DOJ would ever think that a single person could carry out for long both the jobs of Solicitor General and acting Attorney General.  Never mind that there was nothing in the President’s temporary designation of Clement as acting Attorney General that signaled that Clement would remain in that capacity until a new Attorney General was confirmed.


For present purposes, I would instead like to contrast the NYT’s crazy assessment of Keisler as a “hard-line movement conservative” who will “keep the department politicized” with the saner voices of liberals who actually know Keisler.  Here’s a quick sampling of what those saner voices have to say.  (All but the last come in letters supporting Keisler’s D.C. Circuit nomination, but their applicability to his fitness to serve as acting AG is plain.)


Neal Katyal (opposing counsel in the Hamdan case):  Keisler “would be a fabulous judge”; “not an ideologue, but rather a lawyer who took tremendously seriously both his craft and his carefulness.”


Stephen Sachs (former Maryland AG):  Keisler is “especially well qualified to be an outstanding appellate judge”; “judiciousness … marks his values, his conversation, even his advocacy.”


George W. Jones Jr. (self-described “life-long Democrat” and former supervisor of Keisler’s):  Keisler is “easily one of the most talented and hardworking lawyers I have ever had the privilege of working with”; “there was never an instance in which I thought Peter approached any issue or conversation with a closed mind”; “one of the best listeners I know”; “always listened respectfully and with a sincere desire to understand my position”; “rare capacity and instinct to reserve judgment until he has heard and considered all sides of an argument”; “I can think of no one more capable than Peter to sit on the D.C. Circuit.”


Nine “Democrats or Independents” who were law clerks at the same time Keisler clerked (in all but one case working in different chambers):  Keisler is “straightforward, candid, and always respectful”; “the respect Peter so consistently shows for opposing viewpoints is one reason that many of us have become his friends”; he “would decide cases based on the law and facts, rather than his policy preferences.”


David Carpenter (self-described “political liberal” who worked closely with Keisler at Sidley & Austin):  “Peter absolutely epitomizes the kind of lawyer and the kind of person who should be sitting on a federal court of appeals”; “personally and intellectually honest, to the very depths of his bones”; “There have been many occasions in which Peter has refused overtures of others to slant the facts of a case in ways that were favorable to our client and that would, as a practical matter, have been immune from sanction or even detection”; “assiduous in trying to see and fully understand both sides of every issue”; “an extraordinarily fine listener”; “willingness, indeed his eagerness, to listen and to give others a chance to persuade him of a position”; “unfailingly courteous to and respectful of the people with whom he deals”


Virginia Seitz (former Brennan clerk):  “I am utterly and completely confident that he will approach the task of judging with both the desire and the ability to follow the law—that his intellectual and personal integrity will make him a judge without agenda and with a fierce commitment to the ideals of fairness and neutrality so critical to the judicial branch.”


Georgetown law professor Marty Lederman:  “I can vouch that Peter is an attorney of great skill, judgment, integrity and fair-mindedness; I am confident he will make a superlative Acting Attorney General.”

Tags: Whelan

Andy on Mukasey


From Fox News earlier:

Mukasey and Political Asylum


Anxiety among some conservatives about the nomination of Judge Mukasey to be Attorney General rests in part on his 1994 ruling (in Dong v. Slattery) affirming the Board of Immigration Appeals’ denial of political asylum to a Chinese national who feared punishment for helping his wife evade China’s vile “one child” policy (which is implemented in part through coerced abortion).  Andy McCarthy has already explained on The Corner his view that Judge Mukasey’s ruling was legally correct.   

I agree with Andy and will add only that I believe that the result in that case was compelled by Justice Scalia’s 1992 majority opinion in INS v. Elias-Zacarias.  In that case, Scalia explained that in order to show that he faces “persecution on account of … political opinion,” an asylum applicant must show that the persecution would be on account of his political opinion, not the persecutor’s.  Faithfully applying the reasoning of Elias-Zacarias in Dong, Judge Mukasey stated that “the conception and rearing of children is not the inherently political activity whose general prohibition can reasonably be construed as veiled persecution of political opinion.”  (Emphasis added.)   

Bottom line:  China’s one-child policy and its use of coercive abortion are appalling, and I’m glad that the federal laws governing asylum were amended in 1996 to provide refuge to victims of that practice.  But there’s nothing in Judge Mukasey’s faithful application of then-existing asylum law that should lead anyone to infer anything negative about him.  Indeed, in 2006, Judge Mukasey, sitting by designation on a Second Circuit panel (in Bao v. Gonzales), joined an opinion that applied the 1996 amendment in the course of reversing BIA’s denial of an asylum petition.

Tags: Whelan

AG Nominee Mukasey


In his NRO essay from last week (published, appropriately, on 9/11), Andy McCarthy—who knows Judge Michael Mukasey very well—made the affirmative case for Mukasey’s nomination as Attorney General.  Andy also linked to two impressive Wall Street Journal op-eds by Mukasey on the Patriot Act and on broader lessons from the Padilla trial.  All I will add is that my own due-diligence inquiry reinforces Andy’s assessment.  (I won’t discuss the details of my inquiry, so I’ll just have to leave it to readers to credit or dismiss my judgment as they see fit.)   

I reiterate that I am not making any comparative assessment of Mukasey vis-à-vis the other candidates.  The confirmation hearing will of course provide a much fuller picture of the nominee, and it’s certainly possible that my early favorable assessment of the nominee will change.  But I’d be surprised.  

Tags: Whelan

Here’s What the White House Is Sending Around This Morning


Michael Mukasey: A Strong Attorney General

President Bush Nominates Former Federal Judge With Exemplary Background In Law Enforcement

And Issues Of National Security Law To Serve As U.S. Attorney General

Today, President Bush Will Announce His Intention To Nominate Michael B. Mukasey To Serve As America’s 81st Attorney General.  Judge Mukasey – nominated to the Federal bench by President Reagan in 1987 – will bring to this position a lifetime of legal experience and over 18 years of service as a Federal judge.  While on the Federal bench, Judge Mukasey received praise for his thoughtful and fair handling of some of the Nation’s most important and complicated terrorism-related cases, including the trial of 10 defendants accused of plotting terrorist attacks in New York City and Jose Padilla’s challenge to his detention as an enemy combatant. 

Judge Mukasey’s Record Of Rulings In National Security Cases And Experience As A Criminal Prosecutor Make Him Exceptionally Qualified To Serve As Our Nation’s Chief Law Enforcement Officer

Judge Mukasey Was Appointed By President Ronald Reagan To Serve On The United States District Court For The Southern District Of New York, A Position He Held For Over 18 Years.  Judge Mukasey was a strong leader during his six years as Chief Judge of this court, one of the country’s most important and prestigious Federal district courts.  His distinctive service earned him the Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence in 2004 and an honorary degree from Brooklyn Law School in 2002.

Ø      Judge Mukasey Presided Over The 1995 Trial Of 10 Individuals Accused Of Plotting Terrorist Attacks In New York City – Including Omar Abdel Rahman, The “Blind Sheikh” Involved In Planning The 1993 World Trade Center Bombing.  Judge Mukasey sentenced Rahman and another man, El Sayyid Nosair, to life in prison, a decision that required him to keep armed guards with him for protection. 

Ø      Judge Mukasey Issued The First Ruling On Jose Padilla’s Challenge To His Detention As An Enemy Combatant.  He found that the Government had the right to hold Mr. Padilla as an enemy combatant without charging him for a crime.  Judge Mukasey also granted a defense motion to allow Mr. Padilla to meet with his attorneys.

Ø      A Former Prosecutor, Judge Mukasey Served For Four Years (1972-76) As An Assistant United States Attorney For The Prestigious And Demanding Southern District Of New York Office.  While in the United States Attorney’s office, Judge Mukasey demonstrated strong leadership and management skills as the Chief of the Official Corruption Unit. 

Judge Mukasey Has Demonstrated A Keen And Independent Interest In National Security And Terrorism Issues

In A Recent Wall Street Journal Op-Ed, Judge Mukasey Argued Jose Padilla’s “Case Shows Why Current Institutions And Statutes Are Not Well Suited To” The Effort To Combat Terrorism.  “The history of Padilla’s case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions. …[S]uch prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.  And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.”  (Michael B. Mukasey, Op-Ed, “Jose Padilla Makes Bad Law,” The Wall Street Journal, 8/22/07)

In 2004, Judge Mukasey Wrote An Op-Ed Commending The USA PATRIOT Act And Encouraging Opponents To Avoid “Reflexive” Or “Recreational” Criticisms.  “I think most people would have been surprised and somewhat dismayed to learn that before the Patriot Act was passed, an FBI agent could apply to a court for a roving wiretap if a drug dealer switched cell phones, as they often do, but not if an identified agent of a foreign terrorist organization did; and could apply for a wiretap to investigate illegal sports betting, but not to investigate a potentially catastrophic computer hacking attack, the killing of U.S. nationals abroad, or the giving of material support to a terrorist organization. Violations like those simply were not on the list of offenses for which wiretaps could be authorized.”  (Michael B. Mukasey, Op-Ed, “The Spirit Of Liberty,” The Wall Street Journal, 5/10/04)

Commentary On Michael Mukasey’s Record: “An Outstanding Judge”

U.S. District Court Judge Edward Korman: “His legacy is the manner in which he has administered justice in the cases that have come before him. … In that regard Michael Mukasey is an outstanding judge.”  (Joseph Goldstein, “As Judge Leaves For Law Firm, His Legacy Is Remembered,” The New York Sun, 7/26/06)

New York Lawyer Kenneth Bialkin: “I do feel his return to private practice unfortunately deprives the court system of one of the most outstanding, competent, experienced, tough, and honest judges on the bench.”  (Joseph Goldstein, “As Judge Leaves For Law Firm, His Legacy Is Remembered,” The New York Sun, 7/26/06)

The United States Court Of Appeals For The Second Circuit: In affirming the verdicts in the trial of the 10 terrorist defendants who plotted to bomb New York City landmarks and helped plan the 1993 World Trade Center bombing, the United States Court of Appeals for the Second Circuit took the unusual step of commending Judge Mukasey’s work, writing: “The trial judge, the Honorable Michael B. Mukasey, presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge.”

Judge Mukasey’s Career Is Marked By Other Valuable Experiences That Will Serve Him And Our Nation Well If He Is Confirmed As Attorney General

From 1976-87, Judge Mukasey Worked At The Law Firm Of Patterson, Belknap, Webb, And Tyler In New York City.  Judge Mukasey returned to his position as a partner at Patterson Belknap following his retirement from the bench in 2006.

Judge Mukasey Received His Undergraduate Degree From Columbia University In 1963 And His Law Degree From Yale University In 1967.

Judge Mukasey Brings To The Position Of Attorney General A Fresh Perspective And A Non-Political Background.  

Mukasey, Schumer, and Aron


Conservative anxiety about the anticipated nomination of Judge Michael B. Mukasey to be Attorney General derives in part from the fact that Senator Charles Schumer and the Alliance for Justice’s Nan Aron appear to be so high on him.  What do they know about him that others don’t?  My inquiry has led me to believe that the answer is … nothing.


First, let’s review the facts.  In 2003, Senator Schumer sent President Bush a letter in which he identified five Republicans—Senator Specter and four federal judges—whom Schumer thought could win unanimous support as Supreme Court nominees (though Schumer stopped short of promising his own support).  Mukasey was one of the four judges.  In 2005, Nan Aron listed the same four judges as “consensus nominees.”  More recently, both Schumer and Aron expressed their preference for Mukasey over other AG candidates.


Someone who is close to Mukasey and whom I also know and trust assures me that Mukasey and Schumer have had limited contact over the years and that Schumer wouldn’t have any special insights into Mukasey’s understanding of the law.  If this is the case (as I believe it to be), why, then, would Schumer put Mukasey on his 2003 list of Supreme Court candidates?  The answer, I believe, is that Schumer’s 2003 list was a cynical effort to enhance his own standing to oppose whomever the President nominated to the Court.  In other words, Schumer was promoting as Supreme Court candidates five individuals who he knew had no serious prospect of ever being nominated so that he could later paint himself as having been reasonable.  And Aron simply cribbed his list. 

Schumer’s and Aron’s current preference for Mukasey over other leading candidates is also easy to explain.  Schumer and Aron don’t have as much trust that the other candidates will separate law from politics.  Although I believe that they are wrong, their judgment is not surprising in light of the fact that some of the other candidates have been more engaged with the world of politics while Judge Mukasey has been on the bench for the past two decades.  It’s easy to imagine conservatives making similar distinctions between AG candidates being considered by a Democratic president.

Tags: Whelan

This Week in Liberal Judicial Activism—Week of September 17


Sept. 17     Both a good day and a bad day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts.  In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990.  As a justice, Souter has misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.


Sept. 19     1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton.  A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench.  As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering.  Here are a couple examples of Mikva’s creative opinions: 

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless.  In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights.  A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.”  On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct.  In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.”  One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).


For an explanation of this recurring feature, see here.

Tags: This Day in Liberal Activism

AG Nominee Mukasey?


It’s being widely reported that President Bush will nominate retired federal judge Michael B. Mukasey to be Attorney General.  On the assumption that the reports are accurate, I’m going to offer a series of short posts today explaining why I regard Mukasey as a nominee whom conservatives should welcome.  I intend in particular to address the questions and concerns that some have raised about Mukasey.


One note at the outset:  I will not be comparing Mukasey, either explicitly or implicitly, to any of the other folks who have been reported to be in the running.  I would be happy with any of the candidates on most of the “short lists” that I have seen.  Especially after Senator Harry Reid’s cheap preemptive strike on Ted Olson, I would have welcomed the vigorous public debate that a battle over the Olson nomination would have produced. 

Tags: Whelan

Rudy and Roe


I was going to say something about this NYT op-ed by Eric Johnston, a theology student at Catholic University, but Kathryn and especially Ramesh got there before me.  Johnston tries to make a case that Rudy Giuliani, precisely because he is a pro-abortion-rights candidate, could do more for the pro-life cause than any other candidate in the Republican field.  To the problems Ramesh sees with Johnston’s case, I would add this: Republicans have had no trouble electing pro-life presidents these last 30 years, yet Johnston seems to think that a pro-abortion GOP candidate would have a better shot at breaking some logjam or other in the public debate over the issue.  But the logjam has only secondarily been in the realm of public opinion.  First and foremost, as long as it asserts its hegemony over the issue by upholding Roe, the logjam has been in the Supreme Court.  And Rudy Giuliani is the least likely of all the leading GOP contenders to attend to this question (even tacitly while avoiding that allegedly awful “litmus test”) in choosing Supreme Court nominees.

Yes, he has pledged to nominate “strict constructionists.”  And he has declared that judges should “not amend the Constitution without the consent of the American people.”  But as Johnston cannot deny, Giuliani has not said that Roe v. Wade was such an illegitimate judicial “amendment” of the Constitution.  He has not said that for him, strict constructionism requires the overturning of Roe.  He has even said that judges could go either way on the survival of Roe as a precedent and it would be “O.K.” with him.  Gee, that’s some well-thought-out strict constructionism there.

There’s a lot to like about Rudy Giuliani on other grounds.  And this isn’t 1860, when there was just one issue in the election.  Still, I’m reminded of what Harry Jaffa says (in his great book on Lincoln, A New Birth of Freedom) of a moment in the late 1850s when some in the Republican Party dallied with the idea of making the Illinois Democrat Stephen A. Douglas its standard-bearer.  Douglas was to slavery then what Giuliani is to abortion now–the “don’t care” man, who declared that it mattered not to him which way people voted on slavery in the territories, just as Rudy shrugs at either outcome the next time Roe is tested in the Supreme Court.  As Jaffa puts it in describing this crisis moment for the Republicans and the country then:

The Declaration of Independence as the “sheet anchor of American republicanism” would have been abandoned, to be replaced by popular sovereignty.  There would have been no Gettysburg Address to memorialize the Founding in the minds of American citizens.  Lincoln’s argument that the principles of the Declaration contained a promise to all men everywhere would have perished from the earth.  What would have made the Union worth saving in such a case is hard to imagine.

At this moment it was essential for Lincoln, the party, and the country that he make Douglas unacceptable to the Republicans.  For the future of the right to life, it may be equally essential that Giuliani be made unacceptable to today’s Republican Party.  Eric Johnston, I’m afraid, has his political calculus exactly backwards.

Representing the District


In blogging yet again on Wednesday about the unconstitutional bill to give Washington, D.C. a House seat without statehood, I wrote: “Make D.C. a state, or amend the Constitution (see 23rd Amendment for the model).  There is no third way.”  A couple of astute readers point out that there is a third way of sorts: retrocession of nearly all of the present District to Maryland, as was done about 160 years ago with the Virginia portion of the original capital.

I hadn’t forgotten this option (I’ve even blogged about it here before).  But I should have been plainer and said “[t]here is no third way” to give the District of Columbia a House seat while it remains the political unit it is now, a part of no other state.  To receive representation in Congress without a constitutional amendment (in both houses, as needs must be if there is no change in the Constitution), the District must either become a state, or return to being part of a state. 

If the first option were chosen, the Congress would have to decide whether all or part of D.C. constituted the state.  If all of it did, including the central mall area where the White House, Congress, and Supreme Court are situated, then Congress would be abdicating its function of “exclusive Legislation” over a “Seat of the Government” located in a district not in any state.  If most but not all of the present District were made a state, that tiny area could remain in the care of the national government as intended by the framers.

Retrocession, though, would be the better option, returning all but that tiny capital area to Maryland, with a bump in that state’s population that would net it an additional House seat, while the state’s two senators would henceforth represent those “returned” Marylanders as well.

One catch, either with statehood or retrocession, is that repeal of the 23rd Amendment would be necessary, eliminating the votes in the electoral college that are currently controlled by the District’s electorate.

Here’s an idea for Senator Orrin Hatch: give Utah the new House seat offered in the current bargain, plus an additional House seat for Maryland to go with the D.C. residents returned to its care, and we’ll keep the size of the House at a desirable odd number, 437, just as in the proposed bill.  Move the repeal of the 23rd Amendment as part of the whole package, and let’s see who likes this alternative better.  At least it respects the principles of the Constitution.

The Right to Life vs. the Right to Lie


Far be it from me to complain that Kathryn runs too much content here at NRO (can there be too much?), but there’s an excellent piece today that is so far down the homepage you might miss it: Walter M. Weber’s take on the holding of the New Jersey Supreme Court the other day that a physician cannot be held liable for misinforming pregnant women about what they carry inside them.  The court told a whopper of its own when, as Weber puts it, it “declared that there was ‘clearly no consensus’ on whether an embryo is, as a matter of ‘biological fact’ a ‘human being.’”  Until we encounter a case of a woman whelping a litter of puppies, it would seem to be undoubted that the beings borne by pregnant women are human ones.


Sign up for free NRO e-mails today:

Subscribe to National Review