Bench Memos

NRO’s home for judicial news and analysis.

Cornyn vs. Schumer


Senator Cornyn’s office released this a few minutes ago:

Sen. Schumer is once again attempting to create a false impression about what actually occurred at Justice Ginsburg’s confirmation hearings. Unfortunately, he omitted significant portions of questioning and neglects to include Justice Ginsburg’s own explanations of her answers.

In fact, Justice Ginsburg declined to answer Senators’ questions 55 times, on issues including:

Gender discrimination

Voting Rights Act and other race discrimination issues

Gay rights

Rights of the disabled

Religion and the separation of church and state

Restrictions on abortion and taxpayer funding for abortion

Death penalty

Foreign relations and criminal justice

Even in the issue areas that Sen. Schumer previously emphasized, such as abortion, Justice Ginsburg answered only those questions to which the Senate already knew the answers.

Justice Ginsburg was not alone. President Clinton’s second Supreme Court appointee, Justice Stephen Breyer, likewise declined to answer Senators’ questions 18 times, on issues including:

Gender discrimination

Race discrimination laws


Death penalty

Criminal defendants’ rights

Separation of church and state

Government regulations of industry

Garnett on Today So Far


From my in-box: “The Republicans need to defend a vision of the Constitution and not merely lay down procedural rules for the confirmation process. In today’s opening remarks, the Democrats again and again proposed a vision of the Constitution in which unelected judges take it upon themselves to push society in a policy direction favored by liberal Senate Democrats. The Republicans must articulate a competing vision in which questions of policy and morality are decided by the people through their elected representatives and not by unelected judges. The Senate Democrats complained repeatedly about Supreme Court rulings overturning Congressional decisions and yet they were silent on the all too common practice of Justices substituting their policy preferences for those of state legislators and of the people. In United States vs. Lopez, Chief Justice Rehnquist echoed Chief Justice Marshall that the federalist structure of our government serves to protect the liberties of individuals. The Senate Democrats need to be reminded of this basic civics lesson.” – Rick Garnett, professor of law at the University of Notre Dame and former clerk for Chief Justice Rehnquist.


“Something to Hide”?


Senator Kennedy’s already repeated the silly charge that there must be something to hide if the administration still refuses to release documents from the Solicitor General’s office. Before accepting this charge, people should read this article from the Legal Times on what SG veterans think. Liberal and conservative alike suggest there is nothing much to learn in those documents about Roberts, but that it could chill the candor of SG staff attorneys in the future. Said one former SG attorney, “The memos would reveal that he was pushing the positions of President Bush I. That news would make me want to yawn and take a nap.” The bottom line is that no living SG has called for the release of any documents from the SG’s office. Former Clinton acting SG Walter Dellinger has hinted it might be justified in certain circumstances, but even he has yet to call for their release here.

Justice Owen?


Robert Novak reports that President Bush met with Priscilla Owen last week. While she’s only been on the federal appellate bench for a few months, she already has more federal appellate experience than Justice Souter did when he was nominated to the High Court. Priscilla Owen should not have been a controversial nominee to the Fifth Circuit, but she was filibustered by Senate Democrats. Many believe it was because (like Estrada and Brown) she was seen as potential Supreme Court material. If Bush taps her, it will confirm those fears–and prompt a real confirmation fight.

Memo to Senator Schumer


It’s not all about you. From the NYTimes:

One Democrat, Senator Charles E. Schumer of New York, was so concerned with his performance that he held a mock hearing in his office on Sunday, with a Harvard law professor playing Judge Roberts. As chairman of the committee charged with electing Democrats to the Senate in 2006, Mr. Schumer has used the confirmation battle to raise money for campaigns and to solidify his standing as a party leader.


Arlen Specter


doesn’t know what he’s talking about.

But you already knew that.

Again on the Scope of Questioning


Today Sen. John Cornyn at NRO, and former solicitor general Theodore Olson in the pages of the Wall Street Journal, offer arguments on the range of permissible questions for Judge Roberts that culminate–whether Cornyn and Olson realize it or not–in the conclusion that we ought not to have hearings on Supreme Court nominees at all. Or at least no hearings at which the nominees themselves appear to answer questions. Olson puts the case succinctly:

The most appropriate response to these questions [about how he views past rulings that might be revisited] is for the nominee to promise an open mind in every case, receptivity to the arguments of counsel, the views of colleagues and due respect for the written text, history, precedent, context and factual setting of a particular matter. And he should promise to render future decisions free from preconceived or pre-expressed opinions as to how a case should be decided. We expect no less from a judge; and that is the only response we should expect to hear during confirmation proceedings. Anything else bargains away future judicial independence.

I have previously given longer responses to such arguments, so for now I’ll offer my short one: horsefeathers. If this were all we had a right to expect from nominees to the Supreme Court, we could dispense with having them appear before senators at all, since every nominee will promise all of the above as a matter of course. I’d like us all to live in a world in which the judicial power were once again its original size, and we could confine ourselves to the narrow questions of a nominee’s technical qualifications, experience, and character. When we lived in that world we had no need for such extended hearings with personal appearances by the nominees. We don’t live in that world today. As for “judicial independence,” it’s something we’ve seen far too much of for about a century now. And I cannot fathom the shortsightedness of the GOP party line–which I think is represented by the Cornyn and Olson articles–in disarming the Republicans from tackling, hard, the next liberal judicial activist to be nominated to the Court by a Democratic president.

The New York Times invited five people to frame five questions each for Judge Roberts, and they appear on the Times’s op-ed page today. I like most of them, but Glenn Harlan Reynolds and Ron Klain (yes, Ron Klain) ask the best ones. They make for better reading, I’m afraid, than do Messrs. Cornyn and Olson.

Think Again


Ron Brownstein suggest the president nominate a Democrat for the next slot.

The Schedule, According to Chairman Specter’s Office


Tentative Schedule for the Hearing:

*Schedule is subject to change*

Monday, Sept. 12

Noon Chairman Specter opens hearing, including various housekeeping matters

12:15 pm Chairman Specter begins 10 minute opening statements for Committee members

3:15 pm Break

3:45 pm Senators Warner, Lugar, and Bayh introduce John Roberts

4:00 pm Swearing-in and 15 minute testimony of John Roberts

Tuesday, Sept. 13

9:30 am Chairman Specter begins 30 minute round of questioning (Round 1)

1:00 pm Break for lunch

2:00 pm Resume questioning

6:00 pm Break for dinner

7:00 pm Resume questioning

8:30 pm Round 1 questioning ends

Wednesday, Sept. 14

9:30 am Chairman Specter begins 20 minute rounds of questioning (Round 2)

1:00 pm Break for lunch

2:00 pm Resume questioning as necessary

*At the conclusion of questioning, the Committee is expected to go into closed session.

Thursday, Sept. 15

9:30 am Outside witness testimony with first 3 panels

1:00 pm Break for lunch

2:00 pm Resume testimony with last 3 panels

5:30 pm Conclusion of the hearing

It’s Probably Bad That I’m Tired of This Already


From the Boston Globe:

America cannot tolerate a justice who drags the country backward, hacking away at rights to privacy or Congress’s ability to protect health, workers, and civil rights.

The paper trail so far on Roberts is discouraging.

What to Expect


My NRO essay today offers my thoughts on how the hearing will unfold.



Here’s Specter’s opening statement for this morning.

Speaking of Katrina



“The tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own,” Sen. Edward M. Kennedy said in a statement prepared for the opening of hearings.

The Massachusetts Democrat called Roberts an “intelligent, well- educated and serious man” but said the Senate “must also determine whether he has demonstrated a commitment to the constitutional principles that have been so vital in advancing fairness, decency and equal opportunity in our society.”

John Roberts Is On His Way


Setting the Mood


Before it goes through a broad issue-by-issue list (“civil rights,” etc.), a piece in the Washington Post today states, with no questioning as to what exactly John Roberts has to do with Katrina:

And in the tragic aftermath of Hurricane Katrina, concerns about the treatment of poor people and minorities could heavily influence the thrust of some of the questioning.



Well, the Washington Post has found some people who are saying that to know Alberto Gonzales is to love Alberto Gonzales. I was afraid it might come to this. And the Post wonders whether the president will allow conservatives to impose a litmus test on him, demanding that he appoint someone to their liking — a rather odd formulation of the debate since the president himself campaigned on his own litmus test, i.e., he stated that his favorite justices were Antonin Scalia and Clarence Thomas. Moreover, I’ve been told the president is a conservative — albeit a compassionate conservative. So, why should he even need prodding from conservatives, or treat us as the crazy uncle in the attic? If it turns out that the president was just joking during the campaign about his commitment to originalism, many of us won’t be laughing at such dishonesty.

I see no evidence that Gonzales has a clear judicial philosophy. And those who know him and love him should share more than their personal experiences with the rest of us. Otherwise, I can’t take them seriously. Unlike the FEMA Director, we’re talking here about a lifetime appointment, and about an individual who can unleash more damage on our society than Hurricane Katrina.

The time for fan-dancing is over. The president has terrific individuals in waiting. Now is not the time to be blinded by friendship and misplaced loyalty. Now is not the time to demonstrate to liberal detractors your independence from your base. Now is not the time to unleash the political operatives to spew their spin. Now is not the time to abandon the Constitution. We are your friends too, Mr. President.

The Roberts Hearing: A Day-by-Day Guide


I hope to have on NRO on Monday morning (or perhaps later this afternoon) an essay previewing the fundamental dynamics of the Roberts confirmation hearing before the Senate Judiciary Committee next week. At the risk of a little overlap, I provide this brief guide to the day-by-day action:

Day 1 (Monday, Sept. 12): The hearing is set to open at noon. Senators Warner, Lugar, and Bayh will introduce Roberts. Lugar and Bayh, of course, are from Roberts’s native state of Indiana, and Bayh, who hopes to win the Democratic nomination for president in 2008, has made clear that his appearing to introduce Roberts should not be mistaken as support for Roberts’s nomination. Warner’s link to Roberts, I’m told, is that Roberts once lived in Virginia. Roberts now lives in Maryland, but neither Sarbanes nor Mikulski will be introducing him.

Unless you savor senatorial bloviation, the next three hours (probably without a lunch break, according to one committee staffer) will not be the most riveting of the hearing, as each of the 18 senators (10 Republicans, 8 Democrats) on the committee will have ten minutes to make an opening statement. Look forward to Democrats’ feigning their openmindedness as they express their grave concerns that Roberts is a Neanderthal or, even worse, a Republican.

The day’s session will end with its highlight, Roberts’s opening statement. First impressions matter a lot, and this will be Roberts’s first real opportunity to present himself to the American people. Senate Democrats in particular will gauge how appealing his persona is. Roberts will, I think, express his deep gratitude to his family, the president and the Committee, pay homage to the late chief justice, and offer his sympathies to the victims of Katrina. As Ginsburg did, he will probably explain that judicial ethics constrain how he can answer questions. We’ll see whether he strikes any substantive themes, such as the virtues of judicial restraint, or whether his handlers will have pounded out of his statement anything remotely jurisprudential.

Day 2 (Tuesday, Sept. 13): Questioning begins at 9:30, with half-hour sessions generally alternating back and forth between Republicans and Democrats (except that Republicans have two additional members). One full round will take nine hours, not counting breaks, so it could easily take well into the evening to complete the round.

Chairman Specter will lead off the questioning. This will likely be the most important Q&A of the hearing, as Roberts will know that his key to confirmation is winning Specter’s support without alienating conservative senators.

The alternating pattern invites an attack-and-rehabilitation mode, so it’s worth examining the order of questioning:

Specter (R)
Leahy (D)
Hatch (R)
Kennedy (D)
Grassley (R)
Biden (D)
Kyl (R)
Kohl (D)
DeWine (R)
Feinstein (D)
Sessions (R)
Feingold (D)
Graham (R)
Schumer (D)
Cornyn (R)
Durbin (D)
Brownback (R)
Coburn (R)

I’m told that, of the Republicans, Hatch, Kyl, Sessions, Graham, and Cornyn are, when engaged, particularly effective in hearings. Grassley and Coburn are not lawyers.

Day 3 (Wednesday, Sept. 14): More questioning, again beginning at 9:30 a.m. Unless Schumer carries through on his threat to ask questions forever, Roberts’s testimony should come to a close by the evening.

Day 4 (Thursday, Sept. 15) and, if need be, Day 5 (Friday, Sept. 16): If/Once Roberts’s testimony is over, the committee will race through the panels of two or three dozen witnesses lined up to offer their views, pro and con, on the Roberts nomination.

The Committee is expected to vote on Roberts’s nomination on September 20 or September 22, and the full Senate vote on his confirmation should occur by September 29.

Miguel Estrada Back in the Mix?!?


Erick at RedState suggests the possibility here. I hope it is true. It is a disgrace that Estrada was not confirmed to the D.C. Circuit during the president’s first term–and everyone knows why it happened: Senate Democrats were terrified a Judge Estrada would be the first Hispanic nominated to the Supreme Court. After years in limbo, it is completely understandable why he withdrew in 2004 and why, after the death of his wife, he rejected subsequent nomination overtures. But if he is willing to be considered again, as Erick’s post suggests, the president should put him on the short list. If not for the Supreme Court (yet), then at least for the D.C. Circuit. After all, with confirmation of John Roberts, there will be an opening on that court as well.

Let’s Be Franck About Will


I do not know what to make of George Will’s Thursday column. I am willing, though, to defer to Matt Franck and his “impish” read of it, as a send-up of liberal pabulum on the Constitution. I am willing because deferring to Matt is usually good policy and because, well, I don’t know what to make of Will’s column.

Two things I do know have to do with “originalism,” the Fourteenth Amendment, and race discrimination — Plessy, Brown and all that. We will never understand what the relevant history has to tell unless we first understand that the framers and ratifiers of that Amendment meant, intended, and expected that Congress — not the Court — would be the primary guarantor of its protections. And we know this, too: The “original understanding” of the Equal Protection Clause included the understanding that Congress (at least) could outlaw racial segregation in the states — as the debates over various civil rights proposals through Reconstruction make quite clear.

Action in the Lower Courts


Today the U.S. Court of Appeals for the Fourth Circuit issued its long-awaited decision Padilla v. Hanft. The decision, upholding the detention of Jose Padilla, appears to be a big victory for the federal government. Of note, the court’s opinion (available here) was written by Supreme Court short-lister Michael Luttig.


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