Bench Memos

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A Reminder about Gonzales


Ted Kennedy is looking forward to torturing him about water torture. He would not be the easy pass the conventional wisdom assumes/spins he would be.

Re: Gonzales as Chief


From the Washington Post:

One of the arguments on the other side is not to do anything to complicate a confirmation process for Roberts that has gone smoothly. And Bush knew when he picked Roberts for associate justice that he probably would have a chance to name a chief justice, so he might already have someone else in mind.

If so, some Republican strategists believe it could be Gonzales, a longtime confidant from Texas who served as White House counsel in Bush’s first term and would be the first Hispanic to serve on the Supreme Court. Many conservatives howled last summer at the prospect of Gonzales replacing O’Connor because they view him as unreliable on abortion, affirmative action and other key issues, and they renewed the complaints within hours of Rehnquist’s death.

“I don’t know what they get by alienating the last remaining 35 percent of the country that’s really on his side,” said a conservative ally of the White House who would comment only if granted anonymity.
I suspect the president knows that last bit. I also suspect he nominates someone, and quickly, who will not make Chuck Schumer at all happy. And it won’t be Gonzales. We will soon see.


Political Games


The Announcement


Transcript, as released by the White House:

8:01 A.M. EDT

THE PRESIDENT: Morning. This summer I announced the nomination of Judge John Roberts to be associate justice of the Supreme Court of the United States. I choose Judge Roberts from among the most distinguished jurists and attorneys in the country because he possesses the intellect, experience and temperament to be an outstanding member of our nation’s Highest Court.

For the past two months, members of the United States Senate and the American people have learned about the career and character of Judge Roberts. They like what they see. He’s a gentleman. He’s a man of integrity and fairness. And throughout his life, he has inspired the respect and loyalty of others. John Roberts has built a record of excellence and achievement, and a reputation for goodwill and decency toward others.

In his extraordinary career, Judge Roberts has argued 39 cases before the nation’s Highest Court. When I nominated him to the U.S. Court of Appeals for the District of Columbia, he was confirmed by unanimous consent. Both those who’ve worked with him and those who have faced him in the courtroom speak with admiration of his striking ability as a lawyer and his natural gifts as a leader. Judge Roberts has earned the nation’s confidence and I’m pleased to announce that I will nominate him to serve as the 17th chief justice of the Supreme Court.

The passing of Chief Justice William Rehnquist leaves the center chair empty just four weeks left before the Supreme Court reconvenes. It is in the interest of the Court and the country to have a chief justice on the bench on the first full day of the fall term. The Senate is well along in the process of considering Judge Roberts’ qualifications. They know his record and his fidelity to the law. I’m confident that the Senate can complete hearings and confirm him as chief justice within a month. As a result of my decision to nominate Judge Roberts to be chief justice, I also have the responsibility to submit a new nominee to follow Justice Sandra Day O’Connor. I will do so in a timely manner.

Twenty-five years ago, John Roberts came to Washington as a clerk to Justice William Rehnquist. In his boss, the young law clerk found a role model, a professional mentor, and a friend for life. I’m certain that Chief Justice Rehnquist was hoping to welcome John Roberts as a colleague, and we’re all sorry that day didn’t come. Yet it’s fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court, and his complete devotion to the cause of justice.


JUDGE ROBERTS: Thank you, Mr. President. Thank you. I am honored and humbled by the confidence that the President has shown in me. And I’m very much aware that if I am confirmed, I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years.

Thank you, Mr. President, for that special opportunity.

The Roberts Court


John Roberts will be nominated for chief justice later today.






The Hurricane Seat


If I had a dollar for everyone today who said to me: “So Pickering then…”

The American Center for Law and Justice on Rehnquist


We are saddened by the death of Chief Justice Rehnquist whose tenure leaves an indelible mark on the legal and cultural landscape of this nation.

The Chief Justice served this country with distinction and his tenure as Chief Justice will be remembered for its precision and order. He embraced the political and cultural issues of the day and sought to bring a constitutional understanding that was consistent with the framers of the Constitution.

Chief Justice Rehnquist approached each case with honor and integrity a hallmark that will certainly contribute to his lasting legacy on the court.

It has been my privilege to argue regularly before the high court and appear often before the Chief Justice. He agreed with the ACLJ’s position in numerous cases including the distribution of religious materials at airports, the creation of student-led Bible clubs on public school campuses, the ability for religious organizations to use public school facilities after hours, the protection of the First Amendment rights for pro-life demonstrators, and ensuring that minors could exercise their First Amendment rights by participating in political campaigns.

Chief Justice Rehnquist, who served on the high court for 33 years and as Chief Justice since 1986, clearly understood the importance of the First Amendment protections outlined in the Constitution. His death marks the end of a historic era that spanned decades and saw the high court tackle many of the most significant cultural and political issues of the day. He will be truly missed.

Speaking of Nonsense on Fox


In the wee hours of the morning, I had the displeasure of dealing with the contemptible Professor Alan Dershowitz and his vicious personal attack on Chief Justice Rehnquist on Fox News literally moments after the nation learned of his death. While I was thinking worse, I had the good judgment to limit my verbal characterization of Dershowitz as a disgrace and a jerk.

The Hurricane Seat?


Kathryn mentioned Tim Russert raising this on MTP this morning and Lanny Davis later said on Fox News that George Bush should nominate someone from the moderate, center of the country because of the hurricane. This follows Susan Estrich’s claim last evening that the seat should be filled by Edith Clement because she is a woman, and from Louisiana. I’ve heard of the supposed woman and minority seats on the court, but a hurricane seat? These commentators make clear that hurricanes aren’t the only things full of ill wind.

The President on Rehnquist


From the top of the hour:

Our nation is saddened today by the news that Chief Justice William Rehnquist passed away last night. Laura and I send our respect and deepest sympathy to this good man’s children, Jim, Janet, and Nancy. We send our respect to all the members of the Rehnquist family.

William H. Rehnquist was born and raised in Wisconsin. He was the grandson of Swedish immigrants. Like so many of his generation, he served in the Army during World War II. He went on to college with the help of the G.I. Bill. He studied law at Stanford University. He graduated first in his class, that included his future colleague, Sandra Day O’Connor. Judge Rehnquist, and his late wife, Nan, raised their family in Phoenix, where he built a career as one of Arizona’s leading attorneys. He went on to even greater distinction in pubic service as an assistant U.S. attorney general, associate justice of the Supreme Court, and for the past 19 years, Chief Justice of the United States.

He was extremely well respected for his powerful intellect. He was respected for his deep commitment to the rule of law and his profound devotion to duty. He provided superb leadership for the federal court system, improving the delivery of justice for the American people, and earning the admiration of his colleagues throughout the judiciary.

Even during a period of illness, Chief Justice Rehnquist stayed on the job to complete the work of his final Supreme Court term. I was honored and I was deeply touched when he came to the Capitol for the swearing-in last January. He was a man of character and dedication. His departure represents a great loss for the Court and for our country.

There are now two vacancies on the Supreme Court, and it will serve the best interests of the nation to fill those vacancies promptly. I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist. As we look to the future of the Supreme Court, citizens of this nation can also look with pride and appreciation on the career of our late Chief Justice.

More than half a century has passed since William H. Rehnquist first came to the Supreme Court as a young law clerk. All of his years William Rehnquist revered the Constitution and laws of the United States. He led the judicial branch of government with tremendous wisdom and skill. He honored America with a lifetime of service, and America will honor his memory.

May God bless the Rehnquist family. Thank you all very much.

Rehnquist & Religion


From a Beckett Fund release:

“Farewell to a man of principle. The Becket Fund sometimes disagreed with him about what the Constitution meant, but we never doubted it was in safe hands.”

Statement by Kevin J. “Seamus” Hasson, Esq., Founder and Chairman of The Becket Fund for Religious Liberty. Complete statement below.

Under the Rehnquist Court, religious liberty got both better and worse.

Religious Liberty got better because Chief Justice Rehnquist helped to bring a measure of sanity to what had been a crazy Establishment Clause analysis. Before the Rehnquist Court, it was legal for the government to provide parochial school children with film strips, but not with projectors to show them, and with books, but not maps. This is what led Senator Patrick Daniel Moynihan to quip that a future case would have to be about atlases, which are books of maps. Thanks to Chief Justice Rehnquist, much, though not all, of the craziness has subsided.

Religious liberty got worse because the Rehnquist Court insisted on cleaning up the Free Exercise Clause, a Constitutional provision that is designed to be untidy. When the Free Exercise Clause was written, it was easy to let it mean what it said, because America was a Protestant nation with only a few Quakers, Jews and Catholics who dissented. Now that America is more religiously diverse, the Free Exercise Clause gives judges a case of Constitutional vertigo: is it now tempting to not let the Clause mean what it says because hundreds of religious groups will want exemptions from thousands of governmental laws? This was the fear that prompted Chief Justice Rehnquist to tidy up untidy territory.

Chief Justice Rehnquist opted for order over robust freedom of conscience, and we respectfully disagreed with him. Nevertheless, religious liberty is in his debt for the common sense he brought to Establishment Clause

The Chief


The Chief was a great lawyer, an excellent judge, and a good, decent man. Like his colleagues, and like all of his clerks, I admire him very much, and have great affection for him. He was light-hearted, witty, caring, and an excellent teacher. I hope that the political spin will not drown out what Americans should remember about the Chief: He was a dedicated public servant, committed to the rule of law and to the Court as an institution. He fundamentally transformed our conversations and thinking about the Constitution and the Court; he reminded us of important questions and principles that had, for a time, been neglected. He regarded himself as the bearer of a great trust, and of a heavy obligation of stewardship. He was faithful to that trust, and he fulfilled that obligation. God bless him.

George Will


George Will < a href="">recovers.

House Judiciary Committee Member


On Roberts: Red-State Democrats




More coverage in The Corner.

Rehnquist, R.I.P.


Wendy Long remembers him here.



A Catholic group is Podcasting commentary throughout the Roberts’s hearings.


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