Bench Memos

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Roberts & Katrina


It’s official: The Left will use Katrina against John Roberts. Cornyn’s being polite when he calls it “a stretch.”

When the Dust Settles


When the dust settles from the weekend whirlwind, it should be clear that the Court is not on the verge of any dramatic transformation. I do not mean by this observation to dishonor or disparage Chief Justice Rehnquist and his legacy. On the contrary, it is precisely because the nominee to the new vacancy that has developed cannot be markedly better than Rehnquist in his voting record that the transformation that many of us hope for and the Left fears is not around the corner.

Let me explain. Before last weekend, it appeared that Roberts would replace O’Connor. Now Roberts and a nominee-to-be-named-later will replace O’Connor and Rehnquist. If one ignores for vote-counting purposes the irrelevant fact that Roberts will be casting his vote as Chief Justice rather than Associate Justice, and if one makes the reasonable-best-case assumption that the nominee-to-be-named-later will vote by and large as Rehnquist would have, then it should be evident that this past weekend’s developments do not portend any change in the Court’s voting from what we expected last week.

Stated somewhat differently, even if Roberts and the next nominee vote like Scalia and Thomas, Kennedy will remain the swing vote on the Court.

Real transformation—building a Court that is faithful to the Constitution and that respects the right of the people to govern themselves through their elected representatives—will come only when Stevens, Kennedy, Souter, Breyer, or Ginsburg is replaced by a proponent of judicial restraint. Of course, the existing vacancies need to be filled properly in order to make that possible.


Delay Is Still Futile


Now seems a useful time to remind Senate Democrats that delaying the confirmation of Justice O’Connor’s successor cannot be expected to yield the Left any advantages, notwithstanding the fact that O’Connor’s resignation is effective only upon her successor’s confirmation and notwithstanding the likelihood that the Left will dislike her successor more intensely than it disliked her.

As I explained more fully here, even if O’Connor were to take part in oral arguments in controversial cases, she would not be able to participate in the final decision in any case rendered after her successor’s confirmation. Because controversial cases will take many months after argument, it is a virtual certainty that in any case in which O’Connor’s vote were decisive, delaying her successor’s confirmation would serve merely to disrupt the Court by requiring that the case be re-argued.

For this reason and for the reasons that led her to conclude that she should resign, it is far from clear that O’Connor would have any interest in taking part in any oral arguments. As my former OLC colleague Marty Lederman reminds us, Justice Thurgood Marshall initially submitted a resignation, like O’Connor’s, contingent on his successor’s confirmation, but removed the contingency when the nomination of Clarence Thomas encountered delay. O’Connor might see fit to take a similar action, especially if she were to discern that Senate Democrats were using the contingency in her resignation as a reason to delay her successor’s confirmation.

Why Roberts as Chief Justice?


Amidst—and with profound respect for—the celebration of Chief Justice Rehnquist’s life and legacy and the mourning of his loss, I would like to reflect briefly on the President’s new, and excellent, nomination of John Roberts to succeed his former boss as Chief Justice.

This nomination is interesting because the short-term political arguments against it are substantial. Although the initial nomination of Roberts to replace O’Connor was generating more Democratic opposition than some initially anticipated, it was proceeding on track. A cautious approach would have let it proceed. Instead, the new nomination has already led to some delay in the hearing, and it will also give Senate Democrats some seemingly neutral (but spurious) arguments to hide behind in opposing Roberts.

The new nomination also re-opens the matter of replacing O’Connor. Although the arguments for “maintaining the current balance” on the Court are contrived and intellectually bankrupt, they undoubtedly have some political sound-bite appeal. The President impressively ignored these arguments when he first nominated Roberts, and he deserves our trust that he will do so again and select the candidate he regards as best qualified for the position.

Why, then, did the President make this new nomination? My guess is that the White House’s Plan A from months ago was premised on a Rehnquist resignation and that Roberts was the President’s leading contender for Chief Justice. With Rehnquist’s death this past weekend, the President simply reverted to Plan A—and, by replacing Rehnquist with one of his former clerks, also paid special honor to the Rehnquist legacy. A collateral benefit, of course, is that the pool of candidates regarded as suitable for the now-open Associate Justice position is significantly larger than the pool would have been for the Chief Justice position.

If my speculation is correct, this is further encouraging evidence that the President makes these decisions with the long term in mind and bases them heavily on principle rather than politics.

Not Brown


Orin Kerr doesn’t think Bush will nominate Janice Rogers Brown. He explains why here.


Of This, I Have No Doubt


From a National Organization for Women e-mail:

Dear Activists:

With the death of Chief Justice William Rehnquist, the Senate Judiciary Committee has postponed the Roberts hearing. The protests for September 6 & 7 are cancelled. As soon as the hearing schedule is announced, we will develop a new protest schedule.

In the meantime, tell everyone in the DC Area to sign up for NOW’s DC-Zaps so that they can be informed about local actions! They can sign up here:

And don’t forget to visit our Save the Court page:

Blogosphere Bandwagon


How The Senate Can Honor The Chief


If fair-minded Democrats really want to honor the late Chief Justice Rehnquist and serve the country’s best interest, as he did selflessly for 33 years, they should call upon liberal extremists to put down their ideological attack weapons and move the confirmation process forward, both for Judge Roberts and for the other nominee the President will name soon. Filling the vacancies on the Court promptly will allow it to address the nation’s judicial business without, as the liberals might say, “undue burden.”

The late Chief Justice took the term “public servant” to heart. When blizzards shut down much of official Washington, the Chief kept the Court open and showed up for work. When he was in severe physical pain — long before this latest illness that took his life — he soldiered on, rising periodically during oral arguments from his center seat on the bench and retreating momentarily behind the heavy curtain at the front of the courtroom because of his chronic back pain.

In memory of such a public servant, the Senate should likewise work hard to do its own job under the Constitution and fulfill the public trust to complete fair and respectful hearings on the President’s nominees as quickly and efficiently as possible. Piles of documents and hurricanes would not have stopped the late great Chief.

Hurricane Justice Brown?


While I despise all this talk of weather-based identity politics, there is one “hurricane-state native” whose name has not been mentioned: Janice Rogers Brown. She hails from Greenville, Alabama, which is in the southern part of the state (i.e., hurricane country). And, as long as we are talking about identity politics, as an African-American woman, she shares a common racial bond with those who were hit hardest in the New Orleans metropolitan area. Why do I bring up Justice Brown in this context if I think that identity politics are not valid bases for making a nomination? Because Janice Rogers Brown would make a phenomenal Supreme Court Justice on the merits, and if the president considers her because she is from Alabama, so be it. Indeed, I believe that she is a far superior legal intellect than the other proposed “hurricane” nominee.

People for the American Way Does Exactly What You’ve Come to Expect


Monday, September 5, 2005


Statement by People For the American Way President Ralph G. Neas

The death of Chief Justice William Rehnquist and President Bush’s nomination of John Roberts for Chief Justice of the United States raise the stakes for the Court and the American people exponentially. The Chief Justice has unique power and influence as the nation’s highest ranking judge. And replacing two justices at the same time will have an enormous impact on the Court and on Americans’ lives and liberties for decades.

People For the American Way opposed Roberts’ nomination to replace retiring Justice Sandra Day O’Connor in large part based on his hostility to the laws and remedies that protect Americans from discrimination and his longtime efforts to restrict the role of the courts in upholding Americans’ rights and legal protections. To an even greater degree, that record makes him unfit for the position of Chief Justice, and we will vigorously oppose his confirmation.

The events of the past week have only underscored that we need Supreme Court justices who value the role of the courts in protecting individuals’ rights and freedoms, who understand the nature of discrimination and its continuing impact on our country, and who will uphold the role of the federal government in preserving those rights and acting to protect the common good. John Roberts’ record makes it emphatically clear that he does not meet this standard.

The attention of the Senate should be on the tragedies still unfolding in the aftermath of Hurricane Katrina. With the stakes now even higher for the nation, it would be irresponsible for the Senate Judiciary Committee to conduct confirmation hearings this week. The justices who are appointed to replace O’Connor and Rehnquist will serve for decades. There should be no rush to confirm them without the full attention of the Senate and the American people.

Given these stakes, President Bush and John Roberts must be held to the highest standards of openness. President Bush must immediately provide documents he has been withholding from Robert’s tenure as principal deputy solicitor general in the first Bush administration. And Roberts must abandon the strategy of evasion that he pursued during his appeals court confirmation hearing and must be willing to fully answer senators’ questions about his approach to our Constitution. Excessive secrecy is an enemy of accountability and an enemy of representative democracy. Senators must be given the truth about Roberts’ judicial philosophy before they vote on whether to confirm him to the highest judicial seat in the nation.

For more information, see .

Alan Dershowitz Continues His Attack on Rehnquist


On the often stomach-turning Huffington Post.

By the way: He claims you won’t hear his nastiness on Fox News but Dershwitz himself was on Fox Saturday night doing his Rehnquist-attack bit, as our Mark Levin knows too well.

Hurricane Seat, Continued


I heard Newt Gingrich just say on Fox News that Judge Edith Clement is likely on the short list, and that she’d be a solid conservative on the Court. This was first suggested, to my knowledge, by Susan Estrich on the night of the Chief’s death. The notion is that it would be a wonder symbolic act on the president’s part to the people of New Orleans. I sure hope this kind of thinking isn’t taken seriously by serious people, especially the president. The people of New Orleans don’t know who Clement is, nor do the people of Missouri, New York, Florida or the rest of the country. The symbolism is among the elites. And it would be short-lived even among them. If anything, this shows how completely out-of-touch some people are with the public.

Now, if Clement is as solid as some (a few) say, then let’s see the evidence. Point us to the writings, the speeches, anything. Otherwise, count me among the detractors.

Delay Confirmed


Thursday or Monday will be the start. Should really be Thursday.



I betcha they don’t start tomorrow, but there is absolutely shouldn’t be delayed until next week. As Jon says, there is no reason to delay beyond Rehnquist’s funeral.

No Cause for Delay II


The decision to nominate John Roberts for Chief Justice is no more a cause for delay than Katrina. Roberts is the same nominee as he was when picked to replace Justice O’Connor. There are no additional documents, decisions, or other matters that need to be considered. In short, nothing has changed other than the politics — and this is the only reason Democrats are calling for a delay. Senate Democrats agreed to this schedule weeks ago. Chairman Specter should hold them to their agreement.

No Cause for Delay I


If then Judiciary Committee Chairman Leahy could hold a confirmation hearing for Barrington Parker on September 13, 2001, there’s no reason to delay the Roberts confirmation hearings for Katrina. If there need to be additional floor votes on Katrina-related matters, the committee can always recess for 15-30 minutes.

The Best Choice


President Bush has once again impressed with his decision to nominate Judge John Roberts to be Chief Justice. He is the obvious choice for the position. Acting quickly to name Roberts also ensures the chance for there to be a new Chief when the Court begins the term in October. Well done. (Now if only the White House handled post-Katrina matters with the same dispatch and resolve . . . ).

Rehnquist & Roberts


An e-mail circulating has our friend Shannen Coffin’s take on the chief pick:

For all the reasons nominating John Roberts to the Supreme Court was an excellent decision, the President’s decision to nominate him to fill the Chief Justice position is a master stroke. Roberts will guide the Court deftly and with the humility and respect for the law and the limited role of the courts learned from his mentor chief justice Rehnquist. While we mourn the loss of a legal giant in William Rehnquist, we can take great comfort that his legacy will continue in Chief Justice John Roberts.

“The President said that in making this decision he was looking for someone with strong intellect, temperament, and reverence to the Constitution. As a former colleague of Judge Roberts I can tell you that these credentials that guided the President in this decision are an excellent description of Judge Roberts. He is an incredibly smart man and reasoned legal thinker who, no matter what pressures he may be under, handles all challenges with great fairness and calm. Judge Roberts is a leading legal scholar who quickly earns the respect and loyalty of his colleagues. He has argued 39 cases before the Court and already has the respect of the Justices currently sitting on the Supreme Court.

My Plea


Mr. President, please reject the Left’s current efforts to influence your selection to fill O’Connor’s seat. I can assure you, as someone who was involved in vetting judicial candidates under President Reagan, that these are nothing more than sucker punches. Your political enemies wish you ill. Witness how these same voices seek to exploit politically this natural disaster.

Your conservative base has stood with you, Mr. President, through thick and thin. Many of us have had to hold our noses — often and hard — on issues like the new prescription-drug entitlement, federalizing local education, expanding farm subsidies, a pork-laden transportation bill, and immigration. But we could always count on you to defend the integrity of the judiciary with the appointment of solid originalists who embrace the Constitution and respect representative government. The American people are aware and concerned about the enormous power the Supreme Court now wields, and they are counting on you to stay the course.

You have a strong conservative bench from which to choose a nominee. My favorite is Judge Michael Luttig, who meets all the conditions you set forth for a justice. He’s a justice in waiting. We all know it. Of course, there are other outstanding candidates. Edith Jones, Janet Rogers Brown, Priscilla Owen, Sam Alito, Michael McConnell, to name a few. You know them.

I’d like to also mention a touchy subject: Attorney General Alberto Gonzales is a good man. Your affection for him is obvious. He has served you well in several important jobs. But, Mr. President, in your heart you know his judicial philosophy remains in serious question, and that there are more philosophically reliable candidates from which to choose. And any notion that he would be welcomed by your political opponents is wishful thinking. Remember the so-called “torture memos” and how the Left tried to taint him with them? This in no way is intended to disparage Mr. Gonzales. By all accounts, he’s an outstanding attorney general. But we’re talking about a lifetime appointment to an enormously powerful Court, and there’s simply no room for doubt.

If more people of integrity like Clarence Thomas and Antonin Scalia are not appointed to the Supreme Court, we can expect 5 or 6 justices to continue to impose their personal policy preferences on the people — further eroding private property rights, traditional values, political speech, citizenship requirements, the war on terrorism, and the very rule of law they’re sworn to uphold. The stakes for the nation are huge. Now is the time to help the Court find its constitutional way, regain some of its lost respect, and celebrate the Constitution.

The Other Justice


Prediction: The president announces his associate justice pick tonight, when he returns to D.C. from the Katrina-ravaged area. It will be a strong message highlighting his desire to get the process rolling with speed. The vetting has all happened on the White House side, they went through candidates before the Roberts-as-associate-justice announcement. An announcement about the other opening tonight would make a lot of sense. And any crassness concerns–nominating someone before Rehnquist is even buried–seem to be mute with the announcement of Roberts as his chief pick already.


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