Bench Memos

NRO’s home for judicial news and analysis.

The Roberts Memo Roberts Didn’t Write


Leahy vs. Reid


Pat Leahy says he was blindslided by Reid on Roberts.


Justice Williams?


Is Fourth Circuit Judge Karen Williams a serious contender for the Supreme Court? Or is she destined to be a whisker away like Judge Edith Brown Clement? We should know before the end of the week. For those who want to know more about Judge Williams, here is a recent profile. Judge Williams has seen her share of controversy. Among other things, she wrote the Fourth Circuit opinion holding that Miranda warnings were not constitutionally required–an opinion the Supreme Court reversed 7-2. More recently, she authored an opinion upholding the use of the words “under God” in the pledge of allegiance (see here). In another recent case, she upheld a Board of Immigration Appeals ruling that a prosecution for violating China’s one-child policy did not amount to political persecution under U.S. law.

The Roberts Vote Count


Promising Party Plans


The Senate Dems are listening to Howard Dean for their Court Pick #2 Strategy.

In line with that, Gang Member Ken Salazar uses the f-word.


Gonzales in Florida


Speaking in Tallahassee yesterday, AG Alberto Gonzales sounded like someone seeking serious consideration as a Supreme Court nominee. He called Chief Justice Rehnquist a “hero” and suggested those who think he’d be significantly more moderate than other nominees are “ill-informed.” Also, as reported here, Florida Governor Jeb Bush reportedly said that Gonzales would be “conservative enough for him” as a Supreme Court nominee. Asked whether it was worrisome that Gonzales is reading Justice Breyer’s new book Active Liberty, Bush reportedly joked, “No, it’s good to know what the enemy is thinking.”

Re: Teddy Kennedy, Nonpartisan?


Another reader informs me that 1,893 judicial nominees have been confirmed during Kennedy’s time in the Senate. A quick search of the (somewhat temperamental) Federal Judges Biographical Database indicates that more than 800 of these were nominated by Democratic presidents. According to my reader, Kennedy has never voted against a judicial nominee of a Democratic President.

Teddy Kennedy, Nonpartisan?


At the Senate Judiciary Committee mark-up last week on John Roberts’s nomination, Senator Kennedy sought to present his opposition to Roberts as not partisan in nature. As evidence, he stated, “In my 43 years in the United States Senate, I have supported more nominees for the Supreme Court by Republican presidents than by Democratic presidents.” The truth of Kennedy’s statement is not surprising, nor does it provide evidence of nonpartisanship, for one simple reason (for which Kennedy surely deserves some inadvertent credit): With action on Roberts this week, 15 Supreme Court nominees of Republican presidents will have received Senate floor votes during Kennedy’s years in the Senate, as compared to four Supreme Court nominees of Democratic presidents. (Here’s the full Senate history.)

According to a reader who has researched the matter, Kennedy’s previous seven votes against Supreme Court nominees (all of Republican presidents) is an all-time record in the history of the Senate. When he breaks his own record by voting “nay” against Judge Roberts, Kennedy will have voted for fewer than half of the Supreme Court nominees of Republican presidents.

Purely Practical for a Moment


There is no way Karl Rove doesn’t get this: (From Mickey Kaus): “If Bush loses the right, the left, and Arlen Specter, how, exactly, does Gonzales win easy confirmation?”

More Solid Predictions


A knowing Hill guy came up with this morning:

Reid will be “disappointed.”

One (or more) dem Senator will say the pick will “roll back the clock” on (insert hot-button issue here).

If the nominee is not Hispanic, Sen. Salazar and lib Hispanic groups will complain that the President ignored their interests. If the nominee IS Hispanic, they’ll oppose her.

Bush will be attacked for not “consulting” (read: letting dems pick the nom), thereby laying the predicate for their “no” vote.

The nominees positions will be “extreme.”

It will come to light that when the nominee was six years old, she had a pet that wasn’t spayed or neutered.

He or she will be hostile to (insert liberal cause here).

She will be confirmed.

Ralph, Nan and Wade will lose even more credibility.

The earth will continue spinning on its axis.

K-Lo Prediction


SCOTUS #2 nomination will come this week and it will not be Al Gonzales.

My head tells me it will be a woman but my heart tells me it can be a Mike Luttig.

Regardless, People for the American Way won’t be happy.

A RedState Prediction


Erick at RedState is hearing the president will nominate either Priscilla Owen or Alberto Gonzales to the Supreme Court this Thursday. According to Erick’s source, Rove is pushing for Gonzales because Rove “believes that Gonzales is conservative and, given the current docket, will have time to prove it before midterm elections.” Time will tell.



The president this morning said “diversity is one of the strengths of the country” in response to a SCOTUS question.

The Washington Post on the Next Nominee


The Washington Post’s editorial today on “The Next Nominee” manages to identify only one sitting judge who is “strongly qualified” and “would add diversity to the court while honoring President Bush’s oft-repeated insistence on justices who will not legislate from the bench”: Judge José Cabranes of the Second Circuit. I hadn’t previously noticed any public mention of Judge Cabranes’s name–which shouldn’t be surprising in light of the fact that Cabranes was appointed to his current position by President Clinton in 1994 and to his previous post as a district judge by President Carter in 1979.

Cabranes may well be a fine judge, especially by the standards of Clinton appointees. (I’m not familiar with his record, and I doubt the Post has reviewed it with care.) But without showing how Cabranes would fit President Bush’s vision of judging, the Post is hardly reasonably in promoting someone with his judicial pedigree as a serious candidate.

At the same time, the Post loosely asserts that from “some of the candidates reportedly being considered, the White House appears tempted to sacrifice both quality and breadth of potential support in order to push the court to the right.” If the Post’s comment is aimed at specific candidates, it ought to name them, rather than seem to engage in a sweeping smear of all the other female and minority judges whose names have been mentioned. The reality of the matter, of course, is that the Post hasn’t done all the hard work to have an informed view of these other candidates. It shouldn’t pretend otherwise.

Three interesting items . . .


1) The Jewdicious Blog has an updated Roberts vote head-count, currently at 67 declared yeas, 15 nays, 18 undeclared.

2) Last week had an eye-opening analysis of why abortion would remain legal if Roe v. Wade were corrected.

3) On a related note, our friends at the Life Legal Defense Fund sent us a useful 50-state survey of pro-life vs. pro-choice opinion. The poll, by SurveyUSA of Verona, N.J., implies that even if Roe were reversed–which, BTW, will not be determined by Justice O’Connor’s replacement–currently only nine states have significant pro-life majorities. Certainly among the most populous states, for better or worse, abortion seems likely to remain available, even without Roe.

(Reporters, please remember this when NARAL et al. go bonkers over “reproductive rights” during the next SCOTUS confirmation battle.)

The Clinton Precedent


In Saturday’s LA Times, CFJ co-chairman Ronald Cass analyzed the next Supreme Court pick.

Invoking the Clinton Precedent
By Ronald A. Cass

September 24, 2005

AS WE AWAIT President Bush’s nominee to replace Supreme Court Justice Sandra Day O’Connor, all the talk is about precedent. Roe vs. Wade. What does a judge do when a precedent is based on shaky legal ground? The Ginsburg Precedent: How much does a nominee have to answer, and how do you draw the line? Yet the most important precedent hasn’t been mentioned: the Clinton Precedent.

To refresh our memories, President Clinton had a chance to make two appointments to the Supreme Court. The first came with the retirement of Justice Byron White, a conservative who cast one of the two votes against Roe vs. Wade. And just one year before his retirement, White, joining three other justices, dissented in the 5-4 decision in Planned Parenthood of Southeastern Pennsylvania vs. Casey, which reaffirmed the basic holding in Roe.

With the court so closely divided, what did Clinton do to preserve the balance? Did he replace White with another conservative, someone equally clear that there is no constitutional protection for abortion? He chose the former general counsel of the American Civil Liberties Union, a leading liberal law scholar whose special interest was women’s rights: Ruth Bader Ginsburg. Any question how close she was going to be to White?

The president did what presidents always do. He picked someone he thought would be a good justice according to his own views. He didn’t worry about preserving the balance on the court, and he certainly didn’t worry about maintaining the court’s division over abortion.

With a 56-44 Democratic majority in the Senate, Clinton didn’t worry about much other than replacing White with someone his party approved of and the GOP would credit as sufficiently accomplished to do the job. Ginsburg, the strongly pro-choice liberal judge and former law professor, fit that bill. Whether or not you like her positions on legal issues, Ginsburg is a smart, skillful lawyer and judge. And she garnered 96 of 99 votes cast on her confirmation — including the overwhelming majority of pro-life Republicans.

Of course, today, with a 55-45 Republican majority in the Senate and a Republican in the White House, liberal Democrats are singing a different tune. Now, they say, we need the president to be sensitive to keeping the court as it is, to preserving the division on issues such as abortion.

It’s understandable that liberal Democrats would care about the Supreme Court. For more than half a century, the court has been pivotal in reducing the authority of the states, increasing the power of the federal government, eroding protections of property rights, tilting the legal balance from favoring religious worship to favoring atheism, and finding rights in the Constitution that no creative thinker in the nation’s first 175 years ever imagined.

Much of the liberal political agenda that could not muster support at the polls has been achieved through the courts. Would voters sanction government taking private property from one person to give to another? Would they approve banning the Pledge of Allegiance as an unconstitutional intrusion of God into our public life?

Unless courts keep altering legal rules to facilitate liberal causes, Democrats label judges conservative activists, and view anyone who supports them as wanting to take us back to the days of segregated lunch counters and back-alley abortions. It’s a mantra that worked against Robert Bork, so why not use it against everyone else?

It’s time to return to the understanding that presidents get to pick the judges they want, as long as they’re qualified for the job, and that senators are voting not on whether a nominee conforms to their preferences but on whether he or she shows the competence and temperament necessary to the judicial role. It’s time to recognize the Clinton Precedent as the benchmark for what presidents do.

Marshall and the Liberty Bell


George Will’s Sunday column is a nice tribute to Chief Justice John Marshall, who (as I recently posted) was born 250 years ago September 24. It’s a good column, marred only by two small things. Or maybe not so small–let readers decide. Toward the end of the piece, Will relies on the excellent 1996 biography by Jean Edward Smith, John Marshall: Definer of a Nation. He writes that “Smith locates Marshall’s greatness” in the fact that he assured the triumph of the idea that “the U.S. Constitution is a legal document construed by courts, not Congress.” This may be Will’s idea of the proposition Marshall established, but he is wrong to attribute that argument about Marshall to Smith. It is not Smith’s argument, nor is it a reasonable inference from Smith’s book. If Will doubts it, I suggest he turn to Smith’s endnote 12 on page 525:

“Marshall did not suggest, nor did he ever maintain, that the Supreme Court was the ‘ultimate’ interpreter of the Constitution or that its jurisdiction over constitutional matters was exclusive. His definition of judicial review was restricted and pertained only to the Court’s authority to invalidate acts of Congress and the executive when those measures infringed upon the Court’s judicial authority.”

The second problem in Will’s column is something that he does in fact get from Smith, and it appears they are both wrong. Will writes that when Marshall died in 1835 in Philadelphia, “The Liberty Bell, while tolling his death, cracked. It never rang again.”

This tale is indeed told in Smith’s book, and he cites an obscure little 1989 book on the Liberty Bell as his source. It’s a wonderful story, so poignant that one wants it to be true. But it’s not. A couple of years ago, while my wife and I waited in a long line to check in for an overseas flight at the Philadelphia airport–as it happens, to fly to London so I could give a paper on Marshall–we struck up a conversation with someone else in line, a ranger from the National Park Service who worked at Independence Hall, where the Liberty Bell is located. I related this story of the Bell cracking when rung on the occasion of Marshall’s death (which I probably learned from Smith too), and the ranger told us it wasn’t so–that she had heard it a number of times from visitors and could assure me that the tale was false.

And so it seems. No other Marshall biographer tells this story. Not Allan Magruder in 1885, not James B. Thayer in 1901, not Albert Beveridge in 1919, not R. Kent Newmyer in 2001. Only Smith tells it, and as wonderful as his book is, the cracking of the Liberty Bell just didn’t happen that way. I haven’t seen Smith’s source, and I don’t know how long the legend of Marshall and the Bell’s cracking has floated around in the stories people tell.

Here’s the story on the official Park Service website on the Liberty Bell: “By 1846 a thin crack began to affect the sound of the bell. The bell was repaired in 1846 and rang for a George Washington birthday celebration, but the bell cracked again and has not been rung since. No one knows why the bell cracked either time.” That’s it–no connection to Marshall, who had died eleven years earlier.

No blame of George Will here. He relies on a terrific book, one of the best ever written on Marshall and a sound piece of scholarship in general. But the cracking of the Liberty Bell doesn’t belong in the story of John Marshall. Alas.

Aim for O’Connor, Get a Souter


GMU law professor Nelson Lund, a former clerk for Justice O’Connor, explains why President Bush should not try and replace Justice O’Connor with an equivalent nominee.

Bogus Balance Argument


New CFJ co-Chairman Ronald Cass explodes arguments about the need to preserve “balance” on the Supreme Court. As Cass notes, there was no concern for “balance” when Clinton nominated Ruth Bader Ginsburg to replace Justice Byron White — and there should be no concern for “balance” now.

Softening GOP Support?


The New York Times reports that some Republican Senators may not support Bush’s next nominee. According to the story, some Senators (e.g. Brownback) maintain they will vote against a nominee who is not clearly committed to overturn Roe, and others (the usual suspects) may not support a conservative nominee due to concerns about “balance” on the Court. Indeed, Senator Chafee even suggests he might not vote for a Roberts-like replacement for O’Connor.


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