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Bench Memos

NRO’s home for judicial news and analysis.

Raspberry Vinaigrette



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By now this is like shooting fish in a barrel, but some fish just ask for it. As I noted this morning, William Raspberry opines in his Washington Post column today that “to civil rights partisans” (that includes him, of course), Roberts has taken positions that “seem well out of the settled mainstream.”

Like a lot of liberal pundits, Raspberry has a lazy way of assuming that such fog-words as “mainstream” have an accepted meaning that is uncontested by people of good faith. But just what is the “mainstream” in constitutional interpretation is contested all the time, and has been since John Jay became the first chief justice.

Chin-pulling about hewing to the “mainstream” has preoccupied Raspberry’s columns about Robert Bork, on July 3, September 14, and September 21, 1987; about who would be next to be nominated after Bork’s defeat, on October 16, 1987; about the first President Bush’s future nominees to the Court, on November 11, 1988; about Clarence Thomas on July 10, August 7, and September 11, 1991; and about John Ashcroft’s nomination as attorney general, on January 19, 2001.

Raspberry’s record is completely devoid of any worries about whether Democratic presidents’ nominees are in or out of the “mainstream.” He simply assumes they are in it. The mainstream is, it appears, the possession of liberal Democrats, and Raspberry mans one of the picket boats defending its pristine waters from entry by “extremists” nominated by Republican presidents.

Once upon a time, the “mainstream” in constitutional jurisprudence was the principle of “separate but equal” under the Fourteenth Amendment. One of Raspberry’s heroes, Thurgood Marshall, thought that mainstream wasn’t good enough. But it hasn’t seemed to occur to William Raspberry that “out of the mainstream” is an epithet, not an argument.

More Questions About Questions



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Robert Alt finds an opinion he attributes to me “incredible.” He ascribes to me the position that senators must ask questions about specific pending cases, or they fail to do their constitutional duty under the Article I “advise and consent” clause. But that is not my position. My position–as staked out in a couple of posts last week–is that a senator who knows nothing definite about what a nominee thinks the Constitution says about secularism, abortion, and same-sex marriage should not consent to that nominee’s appointment. How could “consent” in such a state of ignorance be squared with a senator’s duty to uphold the Constitution which, by my hypothesis, has been grossly distorted on these matters by the Court? How would “consent” in this state of ignorance be conscientious?

My post in response to an intervention by Ramesh makes especially clear that my position is not that senators must ask about specific cases, pending or otherwise. My position has to do with what a senator needs to know to do his job. Mine is a position about what information is needed to make a conscientious decision, a decision which the Constitution charges a senator to make. As I said in response to Ramesh: Consider a nominee whose views on secularism, abortion, same-sex marriage and the Constitution are crystal clear coming into hearing. Consider, I said, a nominee such as I. A conscientious senator could vote me up or down without any hearings at all.

I do think that broad questioning of a nominee less notorious than I may be needed for a senator to discharge his or her constitutional responsibility. If it is needed, the senator should ask. Robert Alt may agree with me here so long as questions about “specific cases” are avoided. Maybe Robert even agrees with me that senators may (should?) be seeking to learn from a nominee through broad, but not case-specific questioning, what I think needs to known before consenting–the Constitution and secularism, etc. If so, the remaining issues between us may be too insignificant to debate in a public forum.

Just in case, though, I should like to respond to a few points Robert makes against what he takes to be my position.

One is his claim that “grilling” nominees has a short history, going back (he says) no further than Brown v. Board of Education. I grant this point, but I do not see what difference it makes. I never argued for broad questioning on the basis of historical practice. I do not know anyone who has. Robert does not seem to suggest that the pre-Brown practice sets a constitutionally required standard for senators. (It does not.)

Maybe perfunctory hearings were not a good idea even back when senators
thought they were. A few years after Brown senators chose to ask little of two Republicans nominees to the Supreme Court sent up by Eisenhower. These two men sailed through the Senate. I wish they had not. In fact, Ike later wished that they had not; he regretted their appointment to the Court. But each had political/demographic credentials which made them attractive to Ike; in one case, the nominee’s religion was his central qualification. These men were Charles Whittaker, as undistinguished a justice as ever sat on the Court, and a man whose nervous system was broken by the work. The other man filled the “Catholic seat” on the Court. His name was William Brennan.

For that matter, Ike regretted his first high court appointment, another man whose political credentials got him the him the job. His name was Earl Warren.

Robert thinks it is “tad peculiar” for conservatives to rely upon a times-have-changed argument. I cannot imagine why he should find it so. Times do change. “Conservatives” along with everyone else have to deal with it. Robert himself recognizes that times have changed; at least, he seems to agree that the Court has become “politicized” in new and important ways. Indeed it has. I do not think anything in “conservatism” holds that appointments to a regrettably politicized institution must not be made with that (regrettable) fact in mind. Indeed, my main point is that the Court has gone well beyond and even against the Constitution on important matters, and that we want to know whether a nominee will bring back the Constitution. If that is too “political” (or something) for Robert, so much the worse for him.

Here are two of the many changes since around 1950 that warrant stricter scrutiny of a Supreme Court nominee. One is “incorporation” of the Bill of Rights in a series of cases culminating in the 1960’s criminal procedure revolution. (Miranda and all that.) “Incorporation” put the Supreme Court in charge across the country of church-state, law enforcement, trial practice, and a host of other matters theretofore reserved to the states. “Incorporation” has resulted in massive bodies of detailed regulation, all under the heading of broad constitutional phrases such as “unreasonable search and seizure”–practically, a common law of search and seizure, of confessions, of “separation” of church and state, etc. These bodies of law include lots of balancing tests and calls about reasonableness and rationality that rest, in part, upon value and policy judgments of the courts. Why not ask then what policies and values a nominee favors?

Two: The role of political parties in American history has been such that much of what senators would want to know about a nominee was conveyed summarily by his party affiliation. If a Republican president nominated a Republican stalwart to the Court in, say, the late nineteenth century, and you knew pretty much what you are getting. The practice since abandoned of nominating leading “public men” to the bench–and not nearly so many sitting judges–contributed to effective shorthand communication. Republican president nominates a sitting Republican judge to the bench in the late twentieth century, and you get . . . David Souter.

Robert says that the “real concern” should be whether a judge views the Court as another “political or legislative body.” I think he means for senators to act as if it were not, no matter what has been happening for, say, 50 years on the Court. Well, okay, I guess. But how much work is this concept going to do now?

What does it mean to say that someone is fit for the Court so long as he views it not as “a political or legislative body”? Some law professors and columnists speak approvingly (i.e., prescriptively) of the Court as a “political” or “legislative” body. They are not going to be nominated to the Court. But fewer and fewer do: We are all “originalists” and “interpetivists” now, they say. And they say this, too: Reversing Roe now would be a “political” act; the wise judicial statesman stays the course, as three Republican appointees told us in Planned Parenthood v. Casey.

On the other hand, many law professors and columnists describe the Court these last few decades as behaving in a “political” or “legislative”
way. They are right. But even these folks (and Roberts may be one of
them) are going to be very reluctant to identify at hearings any particular binding precedent as “political” or “legislative.” To do so would signal a firm intention to overrule, and this would violate some people’s idea (not
mine) of proper hearings etiquette. Besides, to identify a particular piece of settled law as “legislative” or “political” is to invite an avalanche of further questions about what, exactly, distinguishes sound interpretation from judicial legislation. Again, that is not where a nominee is going to want to go.

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Chills! Where’s Barry Lynn?



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WASHINGTON - As a young government attorney, John Roberts advised the White House to support congressional efforts to allow school prayer, arguing that a Supreme Court ruling striking down the practice “seems indefensible.”

Raspberry Smoothie



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Over on The Corner, our all-seeing editrix Kathryn Lopez was ahead of me by an hour in noticing William Raspberry’s lame column today. She quotes part of his snarky conclusion about Roberts’s life of “quite extraordinary privilege,” which Raspberry, that man of the people, sees as somehow a kind of disqualification for service on the Supreme Court.

Raspberry’s description of Roberts is “son of a wealthy steel executive . . . attended private schools . . . Harvard and Harvard Law School . . . appeals court clerkship . . . clerkship with . . . Rehnquist . . . special assistant to the U.S. attorney general, and associate counsel to the president . . . one of Washington’s top law firms . . . office of the solicitor general . . . a seat on the . . . D.C. Circuit.” Oh, what a great distance from “real-life . . . problems and concerns” Roberts has enjoyed, concludes Raspberry.

But it appears from what has been published about Roberts’s life that his origins were decidedly middle-class, his dad a mid-level white-collar guy with Bethlehem Steel, at least when the younger John was a kid, and the Roberts family’s two homes in Long Beach, Indiana were fairly modest affairs. Roberts went to a boys’ Catholic boarding school–who knows how much that cost or how hard or easy it was for his father?–but then went off to Harvard as a scholarship student. From then on, Roberts’s success was owing to his own hard work and native talent.

Now compare John Roberts’s story to that of the last appointee to the Court, Stephen G. Breyer. Here’s a brief biographical sketch of Breyer, relying in part on a Washington Post profile from June 26, 1994: His father was a lawyer, for 42 years counsel to the San Francisco Board of Education. Breyer’s childhood milieu was the “large Jewish middle-class community in San Francisco, one generation removed from poverty.” He attended an “academically rigorous public [high] school,” then was off to Stanford, then won a Marshall scholarship to Oxford (he was too un-athletic to get a Rhodes–hmm, what was Clinton’s sport?). Then to Harvard Law, where he made law review. Then a year clerking for Justice Arthur Goldberg at the Supreme Court, followed by two years as special assistant to the U.S. attorney general. Then Breyer spent thirteen years on the full-time faculty of Harvard Law, interrupted only by service on the special Watergate prosecution task force in 1973. Finally, Breyer was appointed to the federal First Circuit in 1980, from which he was elevated 14 years later to the high bench.

Can you see much daylight between the two life histories? And do you remember William Raspberry’s worrying aloud about Stephen Breyer’s detachment from ordinary life when he joined the Court eleven years ago?

Give Raspberry the Raspberry



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It’s a bad day for a columnist when he publishes a piece whose central argument has been thoroughly refuted a few days earlier. That’s the plight of William Raspberry, whose Washington Post column today–arguing for “balance” on the Supreme Court–collapsed before it was constructed, thanks to Keith Whittington’s NRO article last Wednesday. But let us dwell on Raspberry’s partisanship-disguised-as-moderation for a moment.

At one point in his column, Raspberry proudly recycles a couple of paragraphs from a column he wrote “more than a dozen years ago,” making the same kind of case for “balance” on the Court. The vague allusion to the age of the earlier column made me curious. Turns out the old article was published on October 30, 1992, four days before the presidential election that year. Back then he was arguing for electing Bill Clinton, on grounds that the first President Bush had made “two conservative appointments–Justices David Souter and Clarence Thomas”–and this was written about four months after Souter played a central role in one of the worst examples of liberal jurisprudence in the twentieth century, the joint opinion (with O’Connor and Kennedy) in Planned Parenthood v. Casey!

It gets worse. In today’s column, Raspberry ends his quotation from his 1992 self with this line: “Only in fairly recent times has the Supreme Court come to be viewed as part of an ideological spoils system.” Snip, end of quotation. But the next two sentences in the 1992 column–omitted in today’s self-quotation–read thus: “That is why it is tilted so far to the right today. And that is why Clinton, should he defeat Bush next Tuesday, ought to start moving it back toward the center.”

Well, Clinton sure did that, didn’t he? He gave us Ginsburg and Breyer, and not a peep was heard from Raspberry about the need for maintaining “balance” on the Court because Clinton was rebalancing it, don’t you see? So “balance” simply means this: Whatever composition of views on the Court shakes out in favor of the liberal agenda on all constitutional questions is declared to be a fine “balance.” Democratic presidents therefore have carte blanche to redress imbalances, understood as the presence of “conservatives” on the Court (like David Souter!). But whenever a Republican is elected, even or especially having run on promises to appoint certain kinds of jurists, the cry goes up from William Raspberry that the current “balance” on the Court must be maintained at all costs.

And I haven’t even gotten to his silly effort to define John Roberts as “well out of the settled mainstream.” What a tool.

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Roberts’s Recusal



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Judge Roberts is recusing himself from a case before the D.C. Circuit involving the American Bar Association, even though he had already participated in oral argument in the case, according to this report. (Link may require registration.) Roberts did not give a reason, but the ABA’s pending evaluation of Roberts is the likely cause. The recusal avoids any potential accusations that the ruling could be influenced by what is expected to be a very positive evaluation.

Greens & Roberts



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The WSJ has a long story on environmentalists’ views on the Roberts nomination, but it does not appear to be available on-line. I’ll be driving most of the day (D.C. here I come), but hope to have comments on it later.

Judge Roberts, When Was the Last Time You Made Someone In Your Courtroom Cry?



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Omaha World-Herald:

A Douglas County judge has been publicly reprimanded by the Nebraska Commission on Judicial Qualifications for making impatient and rude comments from the bench. The commission says John Huber made a litigant cry, then berated her.

LATimes 4 Roberts



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I’d expect a lot more of this in the wake of the NARAL debacle. Though I wonder if it (thirst for blood) turns around again come closer to hearing date.

“John Roberts is either a mad bomber of abortion clinics or a homo-tastic friend of the sodomite.”



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The Judge Report,” from The Daily Show.

The Questions Continue



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I, too, have been AWOL, although I am happy to rejoin the fray now that I know that Ramesh supports my nomination to the Supreme Court. Now if I can just get him elected to the Senate, I can be assured of at least one vote. I don’t have adequate time to address all the arguments that have been raised, but let me offer a few observations. First, as to Andy’s piece Friday, I think that for the analogy of privileges to align properly with the ability—nay duty—of a nominee not to answer questions based upon the code of conduct, you have to compare privileges which are likewise based in a code of conduct (e.g., doctor-patient or lawyer-client). The other privileges (such as Fifth Amendment right against self-incrimination) may carry negative incentives, but there is not necessarily an external obligation carrying with it the possibility of sanctions outside of the proceeding itself. That is what Roberts must be careful about: the code and the recusal statutes operate independently of his desire to be forthcoming about issues which are likely to come before the court. Andy is right in saying that the Senators may ask any inappropriate questions they like. Roberts may likewise choose to answer, but if he does so, it may come at a price.

Second, Gerry and others have spoken about the need to ask questions about specific cases—presumably specific cases which are still active issues likely to come before the court—because they believe that such questions must be asked for Senators to exercise their art. I obligations of advice and consent. This view finds little support in history. As Gleaves Whitney pointed out previously on NRO, the modern spectacle of judiciary committee grillings is just that—modern. According to Stephen Carter, the current system of questioning did not arise until after Brown v. Board of Education, and most judges didn’t even appear before the Senate prior to 1925. I suspect that my interlocutors will argue that Congress had the power even back in the day, but didn’t use it. But that is not their argument as I understand it: I understand their argument to be not that they have the ability to ask these questions, but the constitutional necessity to do so in order to fulfill their duty under art. I. This is an incredible statement. Is it more necessary now than after Plessy? More necessary than after Dred Scott? Controversial issues did not come before the Court for the first time in the 70s.


This leads to what I presume will be the next response: it is worse now because the Supreme Court has become politicized. Ah, it is always a tad peculiar to see conservatives use the “times have changed” argument. While I am sympathetic to the view that we on the Right need not carry out unilateral disarmament—lamenting the politicization of the bench but doing nothing to stop more partisans from joining its ranks—I do not see how failing to ask about specific cases forces us to accept the politicization of the Court. To the contrary, no one has yet explained to me why it is that Senators could not ask questions about judicial philosophy and methodology which would be far more useful in determining how the judge approaches the Constitution than merely asking whether he agrees with a particular case which is likely to come before the court again. For example, Roe is used by both sides of the aisle not merely for the principle of the case itself but as a proxy for how the nominee views the Constitution—that is, do they believe in a living or originalist/textualist Constitution; do they believe in enforceable, extra-textual rights, etc. However asking about agreement or disagreement with a particular case can be deceptive. You could be conservative, and still believe, for example, that the federal partial-birth abortion statute is unconstitutional. And yet, this does not tell you whether the person approves or disapproves of the privacy rights found in Roe. Accordingly, instead of using a proxy, why not ask the questions directly, as I suggested here. In this way, you can see whether the judge views the Court as another political or legislative body, which is, I would hope, the real concern.

Finally, I believe that Mark is right when he suggested that the code of conduct is based in the Constitution. That is why I began this post by suggesting that Roberts has a duty not to answer questions that violate the code—that is, questions which infringe upon the independence and insularity of the judiciary as found in art. III. Yes, this sets up a constitutional clash between art. I and art. III (albeit a non-justiciable political question). But in this clash there is a long tradition of judges not answering questions about pending cases based on their art. III insularity, while the tradition of grilling nominees with questions about specific cases has a far shorter, and, I think Judge Bork would agree, less respectable pedigree.

Thanks for the Signal, Man!



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From the WashPost Style section:

As they waited for a red light to change at First and C streets NE, a few Capitol Hill workers leaving their offices greeted the nominee. “Good luck,” said one man, shaking Roberts’s hand.

There was no traffic in sight, which made the red light seem to go on forever.

Roberts decided he had one last comment.

“Notice,” he joked, “I’m obeying the law.”

RE: Playboy Non-Story



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So, Jon, what you’re saying is that I didn’t have to write this Friday to take the heat off Judge Roberts?

Last time I listen to Karl…

Liberalism’s Constitution



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Don’t miss George Will’s column today, especially his recounting of “contemporary liberalism’s narrative of American constitutional history,” in which the right to abortion supplants all other things. Why this should be so is more of a question for social pathologists than for commentators on constitutional law, but Will is surely right that it is so.

The Playboy Non-Story



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According to Human Events http://www.humaneventsonline.com/article.php?id=8544, some conservatives are “alarmed” that John Roberts assisted other attorneys in his firm prepare to represent Playboy in the Supreme Court. Apparently his willingness to participate in a moot court is “very troubling” to some conservatives. Eugene Delgaudio of Public Advocate says conservatives should be “outraged.” Please. Like Roberts’ minor work in Romer v. Evans, and a host of other cases in which he helped clients push “liberal” positions, this is a non-issue, and the complaints are completely unfounded. Roberts was the premier appellate lawyer at his firm. Barring conflicts of interest, he had an obligation to assist his colleagues in high profile cases. No one claims he supported frivolous legal arguments or was seeking to advance a particular policy agenda, and it is a testament to Roberts’ legal abilities that he his assistance was so sought after.

These sorts of complaints have become commonplace in judicial and executive confirmation fights where advocates on each side have made a bad habit of imputing a unpopular clients’ views to their attorneys. Indeed, some environmentalists get particularly exorcised with nominees who have ever represented a corporation. One of the basic underlying values of our legal system is that all parties merit zealous representation, and it is improper to presume that he supported the position of those he helped represent. Indeed, the complaint here is as wrongheaded as NARAL’s charge Roberts was “supporting” abortion clinic bombers. Whomever the nominee, these sorts of attacks have no place in the confirmation debate.

If John Roberts had Wanted. . .



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. . . a quiet life when he graduated from Harvard Law years ago, he could have made this career choice. (Was listening to the CD and couldn’t resist this link. A bit of whimsy as the weekend arrives. . .)

Roberts on the Role of Judges — Judicial Restraint II



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In addition to the ABA Journal draft, another magazine article that John Roberts drafted for the attorney general displays his deep and longstanding commitment to principles of judicial restraint. This draft, from February 1982, discusses the sorry history of so-called substantive due process, from the Dred Scott case through the Lochner era. The “difficulty” with those cases, Roberts soundly explained,

“arose from the fact that the Court took it upon itself to form national policy under the guise of the guarantee of ‘due process,’ rather than deferring to the legislature on the broad policy questions at issue. Recent years have witnessed a revival of an approach to judicial review reminiscent of that embodied in Lochner and Dred Scott. As in those decisions so too today phrases such as ‘due process’ and ‘equal protection’ are held by judges to include policy choices which often block the considered judgment of those constitutionally empowered to make or implement policy decisions.”
How, Roberts’s draft asks, should judges deal with the perplexing challenge of applying these phrases to specific cases? His answer is a classic statement of principles of judicial restraint:
“The intent of the Framers as revealed in the debates on the Council of Revision and the historic lessons of Dred Scott and Lochner require that Congress and the states be given the widest possible scope for policy decisions, and that courts intervene under the potent yet indeterminate bases of due process or equal protection only when clearly necessary. The basic reasons for avoiding judicial policymaking are fairly clear.… Judicial policymaking is inconsistent with our democratic heritage … [and] is inevitably inadequate and imperfect.”
Roberts explains that the view supportive of judicial policymaking “ignores the conscious decision of the Framers that judges not have a general policy role” and “assigns judges an impossible task.” As in his ABA Journal draft, he specifically criticizes “fundamental rights” and “suspect classes” review as “judicially manufactured constructs” that are “quintessentially legislative” in nature. “The various ‘fundamental rights’ which modern courts have enshrined are no more discernable from the words of the Constitution than the ‘liberty of contract’ which was zealously protected by courts in the Lochner era.” Such “judicial policymaking” is “contrary to the constitutional role of the courts.”

President Bush promised to appoint justices who will interpret the law and not legislate from the bench. Judge Roberts clearly understands the proper role of a judge. All Americans who understand what it means to be a citizen should embrace his understanding.

Roberts on the Role of Judges — Judicial Restraint



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Documents from John Roberts’s service in the Reagan administration show him to be a committed proponent of judicial restraint. Roberts’s initial November 1981 draft of the attorney general’s January 1982 article in the ABA Journal reflects his broader outlook. (I’m focusing for now on the initial draft because that is most clearly Roberts’s own work product.)

That draft essay contains virtually the statement on judicial independence that I discussed here. In Roberts’s words: “The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and engaging in policymaking properly committed to the elected branches or the states.” He adds: “By urging courts to observe appropriate self-restraint and avoid intrusions into the domain of the other branches, we will be taking significant steps to secure their independence.” In short, criticism of judicial activism serves the cause of genuine judicial independence.

Roberts then addresses three ways courts can better practice judicial restraint: “observe strictly the requirements of justiciability, avoid particular devices for testing the constitutionality of laws which permit ready intrusion into the domain of the legislature, and exercise restraint in the formulation of equitable decrees.” Let’s focus on the second way. Here’s an extended passage from Roberts’s draft:

“A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called ‘fundamental rights’ and ’suspect classes’ analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification. Federal courts must, of course, exercise their function of determining the constitutionality of enactments when the issue is properly presented in litigation. . . . [But] [c]ourts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials.

“Two devices which invite courts to do just that are ‘fundamental rights’ and ’suspect classes’ review. It is of course difficult to criticize ‘fundamental rights’ in the abstract. All of us, for example, may heartily endorse a ‘right to privacy’. That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label ‘fundamental’ and then resort to is as, in the words of one of Justice Black’s dissents [in Griswold v. Connecticut], ‘a loose, flexible, uncontrolled standard for holding laws unconstitutional.’ . . .

“Analysis based on ’suspect classes’ presents many of the same problems. Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment. Extension of heightened scrutiny to other ‘insular and discrete’ minorities, however, represents an unjustified intrusion into legislative affairs.”

Justice Scalia and Justice Thomas couldn’t have said it any better. And although these are statements from two dozen years ago, it is my experience that once someone attains this clarity of understanding, he will not thereafter lose it.

The Dionne Bargain



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I’ve been AWOL from the latest round of debate over senators’ questioning of Supreme Court nominees, but I will say that I am fundamentally sympathetic to the views expressed by Gerry Bradley here, and I doubt I can agree with any gloss on the laws and rules governing judicial ethics that would bar a nominee from answering questions about the reasoning in past decisions of the Court. Today Andy McCarthy weighs in with a thoughtful, helpful perspective derived from his years as a federal prosecutor.

Now, though, I want to direct my attention to the bargain offered by E.J. Dionne in his column in today’s Washington Post. Dionne rightly denounces the now-pulled NARAL ad, but then seems to want to use it as leverage. His proposed Civility Compact puts all the onus on Roberts and the Bush administration to be forthcoming, with answers and with documents respectively, and it appears that the only thing to be given up on the Left is . . that they stop telling outrageous lies about Roberts!

Dionne almost has me when he writes this, with which I agree if it stands alone:

Precisely because he has such a thin record of public writings, Roberts himself has an obligation to be forthcoming in answering questions about his views, especially on cases that have already been decided. The debate over Roberts should be civil. But you cannot have a civil debate on “the issues” if Roberts’s supporters insist that “the issues” cannot be discussed and that he is perfectly free to decline any exploration of his outlook on important matters that will face him as a justice.
But this is after he’s already called for the Bush administration to disgorge itself of every scrap of paper related to Roberts’s career as deputy solicitor general during the Bush 41 years. For reasons given two weeks ago by NR’s editors, the administration has already handed over too much from Roberts’s earlier career at Justice and the Reagan White House. This makes it politically more difficult to resist further demands, but they should be resisted nonetheless.

As for Dionne, when he asks for “Any takers?” on his proposed bargain, I say no, thanks. Ask Roberts questions, and I hope he answers them as fully as reason and his conscience permit. But no more documents, Mr. Dionne, and they shouldn’t have to be forked over as the price for honesty from Roberts’s adversaries.

Another NYTimes Correction



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As NR’s Media Blog has noted, the New York Times issues another correction about John Roberts today–this one about the NARAL ad:

“A front-page article yesterday about the furor caused by a television advertisement criticizing Judge John G. Roberts Jr. for an argument he made before the Supreme Court in an abortion-related case included an erroneous report from the ad’s sponsor, Naral Pro-Choice America, about the involvement of one cable network. While Naral bought time on CNN and on stations in Maine and Rhode Island, it did not book the ad on the Fox News Channel. (A spokesman said Naral had intended to advertise on Fox but had never struck a deal–a decision of which he was unaware when he issued the list to the press.)

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