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Schumer Misleads


Sunstein on Roberts


In today’s WSJ (subscription required), University of Chicago law professor Cass Sunstein has an op-ed. The article posits a division between “fundamentalist” and “minimalist” conservatives. The former have an ideological commitment to restoring or remaking constitutional law, while the latter are content to address legal questions in small steps, “nudges not earthquakes,” and believe most social change should occur through democratic institutions, rather than the judiciary. On Roberts, Sunstein writes:

Many people feared President Bush would try to replace Sandra Day O’Connor, a minimalist conservative, with a nominee promoting an ambitious agenda for remaking American constitutional law. But there is not much evidence that the president’s choice, John Roberts, has such an agenda. In his two years on the federal bench, he has shown none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead pays close attention to the legal material at hand. He is undoubtedly conservative. But ideology has played only a modest role in his judicial work. For example, he voted to allow a civil rights action to proceed against the D.C.-area subway system. In so voting, he rejected the claim, advanced by Reagan appointee David Sentelle, that Congress lacks the power to require the subway system to waive its sovereign immunity.
Splashing cold water on some media reporting of the younger Roberts’ views, Sunstein adds that “even in the heady 1980s, none of the young Mr. Roberts’ views was reckless or implausible: All of them could claim some existing legal support.”

Sunstein does not endorse Roberts in the op-ed, but he does not oppose him either. Rather, he cautions against premature opposition, and suggests liberals should keep an open mind.

The Roberts nomination is not welcomed by those who object to the rightward drift of the federal courts or believe that Justice O’Connor’s successor should be no more conservative than she. And on key issues, Judge Roberts will likely be on Justice O’Connor’s right. There is no assurance he will vote to uphold Roe, and it is most unlikely he will aggressively read the Constitution to protect vulnerable members of society.

But at this point in our history, the most serious danger lies in the rise of conservative judicial activism, by which the interpretation of the Constitution by some federal judges has come to overlap with the ideology of right-wing politicians. For those who are concerned about that kind of activism on the Supreme Court, opposition to the apparently cautious Judge Roberts seems especially odd at this stage. The far more reasonable path is to keep an open mind and to hope for a serious and substantive confirmation process. [Emphasis added.]

Sunstein’s caution may be notable because he has advised Senate Democrats on making ideology the basis for opposing Supreme court nominees and is the author of the soon-to-be-released book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America. On the other hand, the article stops short of backing Roberts’ confirmation, preserving Sunstein’s options to oppose Roberts should the hearings take an unwelcome turn, or should President Bush subsequently seek to elevate Roberts to chief justice.


That Will Column


I join Mark in finding it somewhat odd. Obviously Will believes that conservatives are overdosing on majoritarianism and that he is supplying a useful corrective. But all he has succeeded in doing is refuting the argument that judicial activism is wrong simply because it overrules temporary majorities of the public. His major refutation of that argument is that other features of government, such as the Senate, also have the power to overrule temporary majorities. But nobody actually makes the argument that Will refutes. Most conservatives who object to the anti-majoritarianism of judicial activism object to it because they believe it tilts government further away from majoritarianism than the Constitution, properly construed, does.

Useless Standards


George Will writes now and then about the judiciary, as he did today, and for the life of me I don’t know what principle he’s trying to advance. Today, he lectures that judicial activism is good sometimes. Well, that’s not exactly useful as a standard for judicial conduct and interpretation. But he never fails in taking a little shot at conservatives, who, in this instance, dare to question the origins of judicial review.

Questions, Good, Bad, and Indifferent


I’m blogging from Washington, D.C., site of the annual meeting of the American Political Science Association. On this, my first morning in town, in a city that is home to two great newspapers–one for each party!–the hotel where I’m staying (which will go unnamed, but think tasteless hamburger ads) brings me USA Today. Sigh.

Okay, I’ll read anything handy. On the op-ed page I find a box in which the editors have printed the questions various “experts” would ask John Roberts if they were on the Judiciary Committee. Seven questions in all, from five people, and only one and a half of them strike me as worth asking. Each question is followed by a paragraph from its author explaining why it’s such an important question.

The best question is from veteran Supreme Court advocate Alan Morrison, who wants to know “which opinions and which orders” Roberts would have joined in Bush v. Gore, and why. Excellent. That case revealed much about the thinking of all nine justices, and for those who recoil at the thought of inquiring about past cases that might be revisited, well, such a circumstance as the Florida recount controversy is unlikely to be repeated soon.

The second best question is from George Washington University law professor and all-around media guy Jonathan Turley, who wants to know if Roberts agrees with the Lawrence ruling overturning sodomy laws. But he spoils the question by beginning it this way: “Assuming that you believe that there is a constitutional right to privacy . . . ” But why assume that? If that’s an acceptable preface to the question, why not begin, “Assuming that there is a roving commission in the Constitution for judges to strike down laws of which they disapprove . . . “?

Tony Mauro of Legal Times wants to know whether Roberts–and not his clerks–will write his opinions. And he gets a second question, asking whether Roberts would favor “broadcast coverage of Supreme Court proceedings.” I assume he means TV cameras in the courtroom, since there already is “broadcast coverage” of the Court. Both questions are a waste of time. Does he expect Roberts to answer the first one by saying, “No, I’m looking forward to kicking back and making clerks do all the work like I did for Rehnquist years ago”? As for the second, it’s a typical journo’s question. But does anyone contend that the responsible performance of the Congress was actually improved by C-SPAN?

Marci Hamilton of Cardozo School of Law asks two questions. One poses the vague prospect–already ably debunked here by Gerry Bradley–of some conflict between what the law requires and the teachings of the Catholic church. The second aks for a largely vapid and predictable discourse on the meaning and value of the “rule of law.”

Saving the worst for last–as I do here–the newspaper gives us one question from the University of Chicago’s Cass Sunstein. The question itself appears harmless at first glance, asking what “weight” Roberts would give to the “original understanding” of the Constitution. But Sunstein defines that expression as referring to “the specific understandings of the people who wrote and ratified the founding document.” That adjective “specific” carries all of Sunstein’s bias here, since he appears to want us to think that on the “specifics” the founding generation was so much more retrograde than we progressive folks are nowadays.

What’s worse is Sunstein’s explanatory paragraph, in which he differentiates between good conservatives, who “dislike major changes in existing law,” as long as existing law is open to being changed a lot by liberal judges (think Lawrence again), and bad conservatives, who are “more radical” because they might think of reversing some of the gains made by the liberal agenda via the judiciary. This is well-known as the “ratchet effect”–the Left gets to change the Constitution, and “conservatives” must pledge to preserve the changes.

Sunstein gets the nod for the lamest, most transparently dishonest argument embedded in his question.


Too Bad for Evan Hillary Will Probably Run


Evan Bayh will get a national moment next week, making the Democratic intro to the hearings.

Single Digit Opposition


You read it on Bench Memos first: the only “single digit opposition” to Judge Roberts will be the Judiciary Committee vote: a party-line 10-8 vote.

What’s that you say? Senators Leahy, Kennedy, Schumer, Durbin, Feinstein et al. are coming into the confirmation hearings with “open minds”? They really “want to support” this nominee with “obviously stellar credentials”? But they just want to be assured he will “respect our rights and liberties”?

Uh huh. And I’m sure you believe Senator Kennedy’s nephew’s claim that President Bush and Mississippi Governor Haley Barbour are responsible for Hurricane Katrina.

The Abortion Questions


Ed is correct that the USA Today account of General Gonzales’s statements is garbled and self-contradictory. Ed has also done a beautiful job explicating the “Ginsburg standard” that governs this whole matter.

In short, some Senate Judiciary Committee members now say they will demand answers from Judge Roberts on two kinds of abortion questions: personal views and legal analysis.

“Personal view” questions: Judge Roberts’s personal views on abortion are utterly irrelevant to how he would rule on legal questions before the United States Supreme Court. Other nominees have declined to give their personal views, and Judge Roberts should too, lest anyone think such views would influence his future rulings. One thing we know about him is that he believes in applying the law impartially and fairly. Part of what it means to be a judicial conservative–as opposed to a liberal–is that judicial conservatives do not impose their own policy preferences from the bench.

Judge Roberts has already testified under oath before the Judiciary Committee two years ago that nothing in his personal views would prevent him from impartially and fairly adjudicating cases involving abortion. Senators can ask him that question again if they want, but we already know the answer.

“Legal analysis” questions: With respect to legal issues such as whether Roe v. Wade was correctly decided, Judge Roberts must refuse to answer questions from Committee members. As clearly stated by Sen. Joe Biden and then- Supreme Court nominee Ruth Bader Ginsburg in her 1993 Judiciary Committee hearings, to answer such questions on issues that will come before the Court in the future undermines the independence of the Court and would violate canons of judicial ethics. Judge Roberts accordingly must refuse, like all prior nominees, to answer such questions.

If any nominee were to answer such questions, as Justice Ginsburg put it, he would “act injudiciously” by giving “hints, forecasts, [or] previews” of how he might rule. This can give rise to expectations on the part of litigants and the public that can undermine both the fact and appearance of a justice’s being impartial once an actual case with real parties comes before the Court.

Cutting Through the Spin


When liberals say…

* civil rights, they mean racial quotas and forced busing.
* reproductive rights, they mean underage girls should get abortions without notifying their parents.
* equal pay for women, they mean government bureaucrats determining your pay.
* environmental protection and worker rights, they mean the government has unlimited power to regulate private property and business.
* church-state separation, they mean your town can’t display a Menorah or Christmas crèche during the holidays.

If confirmed, Roberts will benefit the country by not being a judicial activist:

* First and foremost, Roberts won’t allow bureaucrats to seize ordinary people’s private property.
* He won’t redefine traditional marriage.
* He won’t strike ‘under God’ from the Pledge of Allegiance.
* He won’t force the Boy Scouts to hire openly homosexual Scoutmasters.
* He won’t favor criminals’ rights over victims’ rights.
* He won’t protect simulated child pornography on the Internet.
* He won’t allow Congress to legislate in areas where the Constitution doesn’t grant it authority.
* He won’t ban the death penalty.
* He won’t permit the politicians to regulate what we say about them at election time.
* He won’t allow government to treat people differently because of their skin color.
* He won’t hamstring the military and intelligence services in the War on Terror.
* He won’t block school choice for kids trapped in failing schools.
* He won’t eliminate the right to gun ownership.

Attention C-SPAN Junkies


On Thursday morning from around 8:30 to 9:15 Eastern time, Ed Whelan will be on C-SPAN’s Washington Journal program discussing how the Roberts nomination bears on the issue of assisted suicide—suicide of human beings, not of the Democratic party. The launching point of the discussion will be the upcoming Supreme Court case of Gonzales v. Oregon, which presents the question whether the federal Controlled Substances Act preempts Oregon’s law purporting to allow physicians to prescribe and dispense drugs to an individual for the purpose of enabling that individual to commit suicide.

Roberts and the Ginsburg Standard


In trying to deny that it would be appropriate for Roberts to invoke the Ginsburg Standard–”no hints, no forecasts, no previews” about any issues that might come before the Court–the Left is now claiming that Ruth Bader Ginsburg was some sort of consensus candidate. It is not clear what logical bearing that claim has on a nominee’s ethical obligations to preserve both the fact and appearance of impartiality. But the claim is in any event wrong.

It is apparently true that Senator Hatch indicated to President Clinton that he believed that Ginsburg would face a much easier confirmation process than some of the other candidates Clinton was considering and that he himself would support her. But Hatch made clear that he believed that a president is entitled to considerable deference in selecting a Supreme Court justice and never suggested that Ginsburg was the sort of nominee that Hatch himself would select. In other words, Hatch was helping Clinton identify a nominee whom Clinton would like and who would be confirmed without substantial difficulty. Any Senate Democrat who adopted the same perspective with President Bush would have John Roberts at the top of his list.

As Hatch explained several weeks ago in an NRO essay (italics added):

President Clinton sought my input without my demanding it because he believed it would help him fulfill his constitutional responsibility for making judicial nominations. He did so not because Senate Republicans threatened filibusters or demanded some kind of veto power over his nominations. We did not try to impose a “consensus” standard or insist that a nominee meet some super-majority “widespread support” threshold.
Some have apparently cited a passage in a book by Hatch in which Hatch supposedly takes credit for calling Ginsburg to Clinton’s attention. I haven’t read the passage, and, in the tradition of politicians’ memoirs, it may well be that Hatch makes such a claim. But, especially in light of the Clinton administration’s very aggressive efforts to nominate female judges, one would have to be very naïve to believe that Ginsburg wasn’t on the Clinton White House’s radar screen from the outset. In any event, the point doesn’t affect the nature of the assistance that Hatch sought to provide.

As I have previously shown, Roberts is by any measure far more “mainstream” than Ginsburg was. The fact that Senate Democrats are far more hostile to him than Senate Republicans were to Ginsburg says much about Senate Democrats and nothing about Roberts. And it also says nothing about the appropriateness of Roberts’s invoking the Ginsburg Standard.

Voting Rights & Roberts


Edward Blum and Abby Thernstrom

VIA FACSIMILE (202) 224-9102

The Honorable Arlen Specter, Chairman

The Honorable Patrick Leahy, Ranking Minority Member

United States Senate

Committee on the Judiciary

224 Dirksen Senate OB

Washington, DC 20510

August 30, 2005

Dear Senators Specter and Leahy:

We are writing to you as coauthors of a forthcoming book on the Voting Rights Act to be published by the American Enterprise Institute Press and as co-directors of the Project on Fair Representation.

One of us, Abigail Thernstrom, is a political scientists and Vice-Chair of the United States Commission on Civil Rights. In 1987 she published Whose Votes Count? Affirmative Action and Minority Voting Rights (Harvard University Press) which won four prestigious awards, including the American Bar Association’s Certificate of Merit, one of the ABA’s two annual book prizes.

The other author, Edward Blum, is a Visiting Fellow at the American Enterprise Institute where he studies civil rights law and policy in the electoral process. Prior to this position, he served as Chairman of the Campaign for a Color-Blind America, Legal Defense and Education Foundation where he supervised the legal challenge to racially gerrymandered voting districts throughout the nation.

Our purpose in writing you is to draw your attention to a handful of op-eds and articles, written by us and enclosed, that examine the political and constitutional justification for sections 5 and 2 of the Voting Rights in the context of massive racial change over the last four decades. These issues will likely be discussed during the upcoming Judiciary Committee hearings on the nomination of Judge John Roberts to the Supreme Court.

As you will see in our Wall Street Journal op-ed of July 15, entitled “Do the Right Thing,” the emergency conditions that existed in the Deep South in 1965 to justify the imposition of the radical penalty of preclearance are long over. Federal approval of all election-related changes (from polling place relocations to new districting lines) was justified in an era of egregious violations of Fifteenth Amendment rights. But today, voter registration and election participation rates of blacks are nearly identical to those of whites. Furthermore, our preliminary state-by-state election analysis of those jurisdictions covered by section 5 suggests that white support of minority candidates is no different in Georgia or Alabama than it is in Massachusetts, Arkansas, and other jurisdictions that do not need permissions from remote federal authorities before using, say, new districting maps arrived at through democratic processes.

Preliminary analysis of election data in these section 5 jurisdictions also shows white crossover support for minority candidates is consistently high enough to elect minorities in statewide contests. Moreover, racial polarization rates are low enough to ensure minority success in both Democrat and Republican primaries. The fact that Georgia has elected an African American to the office of Attorney General and Texas has elected a Hispanic and an African American to statewide office speaks volumes to the changes in racial attitudes since the 1965 act was passed. There are over 9000 African American elected officials in the United Sates today. There would undoubtedly be an even larger number if black candidates were more willing to run in majority-white settings.

It is our belief that section 5 and the amended section 2 of the Voting Rights Act are grave constitutional infringements on basic federalism principles. Any concern Judge Roberts may have expressed about either of these provisions is justified in light of the Court’s recent jurisprudence. We are not alone in this opinion. In fact, during Senate floor debate on Feb. 27, 2004, Senator Kennedy spoke out against reauthorizing section 5 until a complete congressional inquiry has been completed, noting: “Critical analysis of issues surrounding preclearance of minority language provisions of the Voting Rights Act have not yet been fully examined and analyzed carefully to reflect the current status of laws, court decisions, enforcement actions, and society. The Supreme Court has made it clear in recent years that it will require Congress to establish a detailed record through hearings and legislative findings in order to ensure that provisions such as these survive constitutional scrutiny.”

We hope that you find our writings of value as you explore Judge Robert’s views on the constitutionality of certain provisions of the Voting Rights Act.

Sincerely yours,

Edward Blum Abigail Thernstrom

Visiting Fellow Co-Chair, U.S. Commission on Civil Rights

American Enterprise Institute Lexington, MA

Washington, DC (781) 861-7634

Articles enclosed: “Do the Right Thing.” Wall Street Journal. 07-15-05

“After 40 Years, It’s Time to Move On.” Richmond Times Dispatch. 08-01-05.

“Roberts, Misjudged.” Los Angles Times. 08-11-05.

Color Inside the Lines.” Legal Affairs. Nov. 2003.

John Roberts’s “Seclusion”


Some Congressional Black Caucus members are “concerned” about John Roberts’s “secluded” upbringing in Northern Indiana. They think he should be asked about it. After all, one congressman said, if Roberts’s “only knowledge” of black folks is from movies and the Six O’Clock News, “that is a problem.”

It sure is. In fact, any 50-year-old American who has never actually met an African-American –you know, really and in person –is absolutely unqualified to sit on the Supreme Court. That is because such “seclusion” could only mean that the person has been comatose since infancy.

A bigger problem, though, is members of Congress whose “only knowledge” of Northern Indiana seems to be gleaned from Norman Rockwell paintings and from Knute Rockne: All American (starring Pat O’Brian as the legendary Notre Dame coach and, you guessed it, Ronald Reagan as doomed running back George Gipp).

None of the Black Caucus members actually live in northern Indiana, as I do. Maybe some have driven through on the highway. If so, they might have noticed that a short drive past LaLumiere–Roberts’s high school–is Gary, Indiana, where, even in Roberts’s youth, lots of black folks dwelled. And not just Michael Jackson, who has been on the Six O’Clock News quite a bit lately.

Anyway, what we really need to know is this: John Roberts, have you ever
attended a bar mitzvah? If not, why?

The Perfect Spokesperson for the Left


Kim Gandy, president of the National Organization for Women, demonstrated recently that she is both humor-impaired and vicious, as she misconstrued a two-decades old joke that Roberts made about lawyers as a joke about women and labeled Roberts a “Neanderthal.” In a segment yesterday on Roberts and abortion on C-SPAN’s Washington Journal, Gandy also showed that she is severely truth-impaired. To cite three (of many) examples:

1. On two occasions (once after being specifically corrected), Gandy asserted that the current Court is only 5-4 in support of the basic Roe regime. The Court is 5-4 on partial-birth abortion (a topic that was discussed at some length on the segment), but Gandy’s assertion expressly went to the broader Roe regime. The 5-4 lie is apparently commonplace among abortion activists, as this refutation indicates.

2. Gandy asserted that partial-birth abortion is almost always used only in cases of severe fetal abnormalities. But this lie was exploded more than eight years ago, when the executive director of the National Coalition of Abortion Providers repudiated what he called “the party line” and disclosed that “in the vast majority of” the 3000-5000 annual instances of partial-birth abortion, the barbaric act is done to “a healthy mother with a healthy fetus that is 20 weeks or more along.” (See here for extensive detail on this and other points, including underlying documentation.)

3. Long after NARAL has withdrawn its mendacious anti-Roberts ad, Gandy alleged that Roberts’s participation in the Bray case demonstrated that he supported the unlawful conduct at issue.

By the way, Gandy appeared on the C-SPAN segment along with Family Research Council’s Cathy Cleaver Ruse, who did a wonderful job presenting the pro-life and anti-Roe perspective. The contrast between Gandy and Ruse was striking across the board.

That USA Today article on AG Gonzales


USA Today’s account of AG Gonzales’s remarks is so garbled and self-contradictory that it is difficult to believe that it could be an accurate reflection of what Gonzales actually said. In any event, Senate Democrats would reach a new low in politicizing the judiciary if they were to question Roberts about his personal views on abortion. And in order to maintain both the fact and appearance of impartiality, Roberts should adopt the Ginsburg standard—”no hints, no forecasts, no previews”—regarding issues that might come before him.

Confederate Criticism Aside




The AG talks about hearings and questions to USA Today.



If they can get away with it, Senate Dems are going to use the late-coming Reagan docs (reminder: the release was a bad move from the beginning) as an excuse to prolong Roberts’s confirmation. Here’s Chuck Schumer: “Everybody makes mistakes, but blame is not the point here; a thorough evaluation of the nominee’s views is. If these documents reveal significant information about Judge Roberts’ views and we are not getting them until the eve of the hearings, there could well be a need for additional time to question the nominee.”

I Guess It’s Good News


Re: Hopes and Fears


In response to Gerard Bradley’s post below, let me clarify my hopes about the Roberts confirmation. First, I hope Judge Roberts sails through with few votes against him because, objectively, he is unquestionably qualified and deserving of confirmation and I hope for the day when the confirmation process operates as it should, and the confirmation of individuals like Roberts is no longer contested. Now I recognize this is a faint hope, but I’m not sure I read the politics in quite the same way as Professor Bradley. First, I think that if the president were to nominate another conservative to the court, there will be an effort to portray him or her as to the right of Roberts. Given that it is unlikely that the next nominee will have the same pedigree and depth of liberal support within the D.C. Bar as does Roberts, this effort will likely be successful. Thus, if there are 35-40 votes against Roberts, a subsequent conservative nominee will have a more difficult time getting confirmed. The best argument for hoping the Left musters 30-plus votes against Roberts is either a) this will represent the maximum number of votes the Left can muster against a nominee on ideology alone so subsequent conservative nominees will also make it through with equivalent vote tallies, or b) there will be a political backlash against some of those who vote against Roberts that will make moderate and/or “Red State” Democrats less likely to vote against subsequent nominees. These scenarios are possible, but speculative. Thus I would prefer that exceedingly qualified court nominees (of either party) sail through without substantial Senate opposition. In this respect, the Ginsburg confirmation is, and should be, the model. Alas, Professor Bradley and I probably agree that the likelihood of most Senate Democrats, let alone liberal activist groups, accepting this model in the near term is slim to none.


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