Bench Memos

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The Alliance Speaks


The Alliance for Justice has released a 100-plus page report that, the Alliance claims, raises “serious questions” about Roberts’s fitness to serve on the High Court. Of course, Nan Aron promised to oppose, and urge a filibuster of, Roberts months ago, so we know what conclusion the Alliance will reach. For those interested, the report is here.

Small, Annoying Mistake


Both the PFAW and Alliance for Justice reports on Judge Roberts claim that the vote for rehearing the “hapless toad” case (Rancho Viejo) was 7-2. Maybe so, but neither group knows this. Although only two judges on the court wrote dissents from the decision, this does not mean only two judges voted for rehearing. As the D.C. Circuit handbook explains: “An order granting rehearing en banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish” (emphasis added). In other words, judges can vote for rehearing, but then keep their votes private when the order is released. For all we know the vote was 6-3 or 5-4. I know this is a tiny detail, but the mistake still annoys me every time I see it.


An Important Birthday, Spoiled


One week after Constitution Day, another important date in constitutional history will come around. September 24 is the 250th anniversary of the birth of the great chief justice, John Marshall. At a hotel near Marshall’s Richmond home (which has been kept up wonderfully by the Association for the Preservation of Virginia Antiquities) there will be a gala dinner on the 24th under the auspices of the John Marshall Foundation. Black tie, moderately pricey tickets, almost worth the drive to Richmond, until one sees that the featured speaker, and recipient of the Inaugural Award of the John Marshall Medal in Law, will be . . . Justice Anthony Kennedy. I understand that the organizers of such events strive to be nonpartisan, and eventually they’ll probably get around to every one of the justices. But the inaugural medal to Justice Kennedy? On the quarter-millennium birthday of the greatest jurist in American history? What a letdown. I’ll stay home and save the gasoline.

Scalia on “Moderate” Interpretation of Constitution


The AP reports on comments made by Justice Scalia at Chapman University in California:

Scalia . . . railed against the principle of the “living Constitution,” saying it has led the Senate to try to appoint so-called politically “moderate” judges instead of focusing on professional credentials and ability.

“Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?” he said, to laughter and applause.

Scalia didn’t make any direct references to the looming confirmation battle for Supreme Court nominee John Roberts, but he did allude to it.

“Each year the conflict over judicial appointments has grown more intense,” he said. “One is tempted to shield his eyes from the upcoming spectacle.”

It Was Early-Morning Wishful Thinking


Make sure you’re all rested for the long September.


Re: Dionne


I am not sure the Dionne column is quite so defeatist, Kathryn. Rather, I think Dionne is shrewdly laying the predicate for one of the potential lines of attack, He concludes:

The paradox of the Roberts nomination is this: Roberts seems untouchable because of his shrewd and extensive preparation for this critical moment in his life. He could be derailed only if he proves to be too shrewd, too smooth and too evasive.
Given that we all know that a) the White House will not release documents from the SG’s office, b) Roberts will not answer questions that bear on issues that may come before the Court, and c) he will do so in a “smooth” fashion (as he did at his prior confirmation hearing), Dionne is leaving open the possibility of opposing Roberts on precisely this basis. We saw something similar with Bork. He was attacked for his scholarly writings, yet when he distanced himself from some of the writings, he was accused of a “confirmation conversion.” Given that a frontal attack on Roberts’ views or experience is unviable, they’ll go after him for refusing to disclose and being “too shrewd, too smooth, and too evasive.” Of course, I hope I am wrong, and that Roberts sails through with single-digit opposition–but don’t bet on it.

I Don’t Think E. J. Has a Fight In Him


Clearing it Up


From the AEI website (linked in Jonathan’s post) – “Professor Cass Sunstein argues in his new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, that the best approach is a form of cautious incrementalism. He suggests that judges build on their precedents, but show a reluctance to strike down the decisions of the elected branches.“

Well, that clears it up for me. And lest anyone forget, there’s “The Constitution 2020.” Hopefully George Will will be armed with this information (I have no expectation Jeffrey Rosen will).



A group calling itself ProtectOurCourt.Org, “an online campaign started by grassroots activists who are former staffers to the Wesley Clark for President campaign” and ran StopJohnBolton.Com, has prepared an anti-Roberts ad focused on school prayer. (Link via HB.)

Sunstein at AEI


Speaking of “the Senate Democrats’ favorite legal thinker,” Professor Sunstein will be speaking at the American Enterprise Institute in the midst of the Roberts confirmation debate. On September 13, Sunstein will lecture on the topic, “How Should the Supreme Court Interpret the Constitution?” at a forum sponsored by the AEI-Brookings Joint Center for Regulatory Studies. Based on this summary, it appears the talk will be based on Sunstein’s new book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. After Sunstein’s talk, George Will and Jeff Rosen will comment.

Six Degrees of Guilt by Association


Settle in for a long stay in front of the tube come September 6 — at least if Democratic Senators listen to Cass Sunstein. In that Washington Post piece today, Sunstein outlines the Roberts’ cross-examination we shall probably have to endure. And “endure” is the right word. In fact, it might last until the Christmas recess.

Sunstein’s basic strategy is simple. Roberts, he says, is some kind of conservative. But we do not know which kind. Very well then, Sunstein advises, let’s start at the beginning. Let’s leave no question unasked to see just what kind of conservative John Roberts is.

Some conservatives, Sunstein says, oppose rulings which make medical records private. Judge Roberts: are you in favor of making people’s medical records public? How do you feel about faxblasting the pictures from grandma’s lower GI Series? Not in favor? Ahem. OK, then, let’s move on.

Sunstein says that some conservatives hold that the Court “has no legitimate basis for prohibiting…racial segregation” at the national level. Judge Roberts: was Jim Crow your favorite constitutional character growing up? No? Don’t be evasive now, Judge. Do you have any African-American friends?

Sunstein says that some conservatives oppose Court rulings which recognize one’s right to live with one’s own family. Judge Roberts: do you favor government policies which take kids away from their parents and siblings, and make them live with, say, Keith Richards? Come on, Judge. Be candid. You have always preferred the Stones to the Beatles, haven’t you?

Judge Roberts: some conservatives think that South Park is really funny. Do you? How about the movie “Team America”? Some conservatives cheered so much that they blew lunch when the commandos wiped out Alec Baldwin, Matt Damon and all those other Hollywood pinkos? What was your reaction to that mass execution, Judge Roberts? Be honest. Use additional sheets, if necessary.

Judge Roberts: some conservatives (like Mark Levin on NRO) are now saying that Cass Sunstein has become a joke. Do you agree?

Re: Sunstein


I agree with Mark that there is much that is amusing about Cass Sunstein’s op-ed. I think it’s worth emphasizing, though, that Sunstein expressly states that it was “reasonable” for Roberts to “raise[] questions about the constitutionality of some applications of the Endangered Species Act.” This concession from a leader of the Left should undermine those who have been trying to make the arroyo toad the mascot of their opposition to Roberts. It would also seem to compel the concession that it would be reasonable to raise more general questions about the scope of Congress’s Commerce Clause power.

Re: Roberts & Hamdan


As I have previously discussed, Gillers and his two co-authors fail to deal adequately with the many obvious difficulties in their position that Judge Roberts should have recused himself from the Hamdan case. Indeed, they do not even address the possibility that elevation of a judge within the federal judicial system might be materially different from a judge’s seeking employment outside that system. I will not repeat my previous observations here but would like to highlight two additional problems with the Gillers position:

1. If, as Gillers maintains, the realistic prospect of elevation should have required Roberts to recuse himself from cases of importance to the administration, why wouldn’t the fact of elevation likewise require ongoing recusal? In other words, why wouldn’t the Gillers position require that Roberts, once confirmed and appointed to the Supreme Court, sit out all cases of importance to the president, to whom he would presumably be indebted for his appointment?

To illustrate the point: Let’s assume that a federal judge was negotiating a book contract with a publisher. It would seem uncontroversial that the judge would recuse himself from any case involving the publisher during the negotiations. But let’s move forward in time and assume that the negotiations resulted in a contract. Obviously the judge’s recusal obligation would extend to the period covered by the contract and presumably for at least a reasonable time after. In other words, where the prospect of a benefit requires recusal, the actual conferral of that benefit does as well.

The logical corollary to the Gillers position–that Roberts would have to recuse himself as a justice from cases of importance to this administration–is belied by 200-plus years of American history. Does Gillers maintain that this unbroken practice is wrong? If not, it would appear to follow as a matter of logic that his underlying position must be wrong.

2. If, as Gillers maintains, the fact of an interview required Roberts’s recusal in Hamdan, is it Gillers’s position that all the other federal judges who interviewed for the Supreme Court are also required to recuse themselves from cases of importance to the administration? Presumably these judges remain on the short list for the next vacancy. It is of course true that no additional resignations have been announced. But O’Connor had not announced her resignation at the time Roberts was interviewed, so that point does not distinguish Roberts’s situation in Hamdan from that of the other judges who interviewed.

Roberts & Hamdan


If Roberts should have recused himself in the Hamdan case once he was asked to interview with the White House as a possible nominee to the Supreme Court, why is being asked to be interviewed the focus? It seems to me, as the logic goes, if you know that you’re being looked at as a possible nominee, even without having been asked to be interviewed, you’d have to recuse yourself — which means that all judges on the potential nomination list would be recusing themselves. And from what are these judges to recuse themselves? All cases involving the Executive Branch, since the president IS the Executive Branch? And if this is the standard, why has it only now been discovered? Seven of nine of the current justices were former federal appellate judges, and to the best of my knowledge, none of them recused themselves from any cases because of some perceived conflict of interest when they were under consideration.



Want another laugh? Read Cass Sunstein’s op-ed in today’s Washington Post.

The professor is a moving target. He argues for precedent when he agrees with the Court’s results, he argues for a living and breathing Constitution when he believes the Court is mired in the Constitution’s text, he argues for judicial restraint when the Court strikes down congressional laws he likes, and he repeatedly mischaracterizes originalist jurisprudence. I guess this explains why he’s the Senate Democrats’ favorite legal thinker. (He also used the title of one of the chapters of my book for the title of his book. But, then again, my publisher insisted on a title for my book that was used in a movie about aliens.)

Rotunda on Recusal


Law professor Ronald Rotunda, a noted expert on legal ethics and constitutional law, disagrees with those legal academics who argue Judge Roberts should have recused himself in the Hamdan case once he was asked to interview with White House officials about a potential Supreme Court opening. His letter to Judiciary Committee Chairman Arlen Specter–apparently written in response to a request from Specter (contrary to this insinuation)–is available here. I am not an expert on such matters myself, but it seems to me Rotunda makes a strong case.

As one might expect, the folks at the Center for American Progress have a different view of the Rotunda letter, and are all exercised about Rotunda’s former employment with the Department of Defense. Yet what’s interesting about the various posts on this issue at Think Progress, particularly those by Judd Legum, is their complete lack of substance. Legum does his best to impugn Rotunda’s motives, but never addresses the substance of his remarks. In my mind, this simply reinforces the strength of Rotunda’s arguments.

A Women Thing


The Toledo Blade on John Roberts and women, in a piece that

In Roberts’s News Today


The Supreme Court nominee’s grammar is better than mine.

I’ve never used “slumgullion.”

Though he ought to have to take the WFB test. Then we’ll see!

Kudos to the Times


Have to give credit where credit is due, even when it is due to the Old Grey Lady. Here we are, on the cusp of the Big Constitutional Showdown (a/k/a the Roberts’ Hearings), and the New York Times runs a tongue-in-cheek editorial against Roberts. Or, should I say, “toad-in-cheek”?

Cheeky editorialist Adam Cohen peers into the face of the arroyo Southwestern toad, and sees the future of our country. John Roberts, we are told, does not really care what happens to this “hapless” creature, a tiny thing which does not like the road at all. At least according to a case about the Endangered Species Act that Judge Roberts handled. The arroyo toad spends its whole life in California. Though Roberts did not understand why this is so, he thought it was a big deal. The toad’s sedentary habits put it beyond the reach of Congress’s power over “interstate commerce”. And so, maybe Congress cannot protect our little friend form the nasty developers who want to kill it.

All this makes Roberts “very dangerous”. Roberts holds (get ready!) “extreme states rights views”. Lest you scratch your head wondering, Cohen explains: these are the views that kept Dred Scott in slavery and, you know, led to the Civil War, in which many toads, and some people, lost their lives.

Turns out that Roberts is one of those “conservative judicial activists” — the “most dangerous kind”. They’re the kind that specialize in taking rights away, unless you are lucky enough to be a state. The good activist is the “liberal” kind, for they specialize in “creating” rights like the right to privacy. This makes them very, very safe, unless you are unlucky enough to be an unborn child.

But, if you are an arroyo Southwestern toad: kick back, order another Margarita, check out the chicks. Life is good. You are safe.

Jonathan Adler is worried about this “disingenuius editorial.” Chill, Jonathan. It’s no more disingenuous than Younfg Frankenstein, though not quite as funny. Order up another gin and tonic. It’s late August, and the NY Times is having some fun.

More on Cohen


In reference to the Cohen editorial mentioned below.
Among Cohen’s more egregious sleights-of-hand is to suggest Roberts’s confirmation would severely restrict federal power. “Having one more justice who supports weakening Congress could make an enormous difference.” Yet Justice O’Connor has voted to restrict federal power in every recent commerce clause case, including the medical marijuana case, expressing a far more restrictive view of Congressional power than anything Roberts has ever written. So Cohen ignores O’Connor’s votes in Commerce Clause cases, instead focusing on sovereign immunity and statutory interpretation cases in which she voted with the federal government. In other words, Cohen’s argument boils down to “Because Roberts suggested he agrees with O’Connor here, he might disagree with O’Connor over there.”

This isn’t enough for Cohen, who goes on to make the ridiculous charge that “If Judge Roberts votes with the most conservative justices, the court could start to revive the spirit of the Lochner era, gutting a wide array of laws that protect Americans from harm.” This is just ridiculous — and Cohen’s too smart not to know it. Modest limits on congressional authority to regulate local matters hardly amounts to “Lochnerism.” The Lochner court invalidated a wide array of federal, state and local legislation. The federalism cases, on the other hand, limit federal regulatory authority while preserving — and in some cases enhancing — state and local regulatory authority. I’d go on, but I have work to do, so go read the Althouse post.


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