Bench Memos

NRO’s home for judicial news and analysis.

Dionne’s “Case for a ‘No’ Vote”


Because I cling to my belief, based on the good work he does in the context of the “religion in the public square” debate, that E.J. Dionne is more than merely a partisan, I am extremely disappointed by his lame “Case for a ‘No’
Vote on Roberts”
in Sunday’s Washington Post.

Dionne complains, “[t]he Senate and the public have a right to far more assurance about how Roberts would use that power than they have been given in these hearings.” Well, no. That is, if by “assurance about how Roberts would use [his] power” Dionne means “assurance that Roberts will vote in a way that accords with Dionne’s policy preferences” (which is, I think, all it means), then no, they don’t have that right. And, in any event–and notwithstanding the scripted, phony complaints of some of the Democratic senators–the senators, and the public in fact know far more about Roberts’s work, methodology, and views than was known about any recent nominee.

Dionne writes, “[i]f senators simply vote ‘yes’ on Roberts, they will be conceding to the executive branch huge power to control what information the public gets and doesn’t get about nominees to life positions. The administration has stubbornly refused to release a share of Roberts’s writings as deputy solicitor general. This is a dare to the Senate, and the administration is assuming it will wimp out. A ‘yes’ on Roberts would be a craven abdication of power to the executive branch.” Again, this is complete nonsense, unworthy of someone who knows as much about government and the Constitution as Dionne does. The administration does not have, and has never claimed, “huge power to control what information the public gets” about nominees (the papers have been writing about and investigating Roberts for months); and there is nothing “stubborn[]” about the administration’s refusal to release documents that every Solicitor General in recent years agrees should not be released.

The truth is, the Democrats don’t care what is in the documents, and they know full well that the administration will not (and should not) release them. They are asking for them nonetheless, to create–in bad faith–the impression of a “stubborn” and secretive administration. To use Dionne’s words, for the administration to give in–to “wimp out”–would be a “craven abdication” of its responsibilities to future presidents. (In similar fashion, the Democrats have asked Roberts about particular cases not so much because they think he should answer–they know he shouldn’t, as Senator Biden’s statements during the Ginsburg hearings showed – ut because they are hoping the American people won’t understand why it is that for Roberts to answer would compromise the integrity of the judicial process).

I just don’t understand what moves a reasonable, informed, engaged commentator like Dionne to embrace such disingenuous, partisan error. The arguments against Roberts are, and have always been, frivolous. Elections matter, and Roberts cannot come as a surprise–and should, perhaps, come as something of a relief–to those who, like Dionne, wish the last election had turned out differently. In a sane world, Roberts would be confirmed 100-0. Or, at least, he would get the 95+ votes that Justice Ginsburg enjoyed. That it is quite likely around 30 senators will salute the People for the American Way and vote “no” is a disgrace.

Roberts on Abortion and Precedent


In my NRO essay today, I explain why I think folks are wrong in reading Judge Roberts’s testimony as signaling that he would not vote to overturn Roe.


Slate’s Noah on Graham and Ginsburg


Slate’s Timothy Noah takes Sen. Lindsey Graham to task for “accus[ing] Justice Ruth Bader Ginsburg of advocating that the age of sexual consent be reduced to 12.” As an ACLU lawyer, Ginsburg in fact did propose legislative changes that would have had the effect of reducing the age of consent for statutory rape under federal law from 16 to 12. (See item six here.) Noah is correct that Ginsburg’s focus was on eliminating the sex bias in then-existing law, but the fact that her ideological blinders apparently led her to propose the radical changes she did is significant.

Noah claims that the pages I cite to show Ginsburg’s proposal show “nothing of the sort.” He is wrong. I referred the reader to “pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76″ of the Ginsburg report. The “specific recommendation” I cite states “Eliminate the phrase ‘carnal knowledge of any female, not his wife who has not attained the age of sixteen years’ and substitute the offense as set forth in S. 1400, §1633.” Pages 70-71 in turn set forth S. 1400’s rape offense, which in subpart (3) would establish statutory rape as a sexual act with another person who “is, in fact, less than twelve years old” (and would thus set the age of consent at twelve).

Oddly, Noah accuses me of providing “other ridiculously distorted examples of Ginsburg’s ‘extremist views,’ ” but the Bench Memos post of mine that he cites consists almost entirely of Ginsburg’s own words (with links to the very pages on which they appear) on prostitution, bigamy, co-ed prisons, Mother’s Day and Father’s Day, and the Boy Scouts and the Girl Scouts. It is Ginsburg’s views that are ridiculous, and it is Noah’s charge that is distorted.

Noah ends his piece with the hopeful suggestion that a typographical error may account for Ginsburg’s substitution of an age of consent of 12 in place of 16. That seems unlikely, as Ginsburg’s report quotes S. 1400 as using the word “twelve,” not the numeral “12.” But if that somehow turns out to be the case, those of us who relied on Ginsburg’s work could hardly be faulted for her mistake.



just officially announced his support for Roberts.

Schumer Loses to Roberts


In today’s column, Novak notes the significance of Roberts’s skillful evasion of pointed questions from Democratic senators–despite even Senator Schumer’s best efforts.

Ever since President Bush’s election, Schumer has been planning how to force nominees to take broad policy positions. . . . Schumer grumbled that Roberts was getting away with incorrectly claiming he was following precedent set by liberal Justice Ruth Bader Ginsburg in her confirmation hearing (though in private conversation last week, Ginsburg disagreed with Schumer).
This is potentially significant. Several Democratic senators have been quite vocal that Roberts did not answer their questions as directly as they would like. Given that Roberts is certain to be confirmed, this will make it more difficult for them to oppose future nominees solely on the grounds that they do not answer enough questions from the committee. Novak predicts a 10-8 committee vote nonetheless. I’m not so sure, but we’ll see.


Filibustering Owen?


Robert Novak reported over the weekend that

According to Senate sources, Democratic Leader Harry Reid has informed Majority Leader Bill Frist that Federal Appeals Court Judge Priscilla Owen will be filibustered if President Bush names her to replace Justice Sandra Day O’Connor on the Supreme Court.

Republican senators are divided on whether former Texas Supreme Court Justice Owen is vulnerable because she underwent a filibuster for the appellate seat and was confirmed under the compromise agreement. Frist is known to believe Owen can be confirmed in the face of a filibuster.

Republican Senate strategists believe Attorney General Alberto Gonzales is the only possible Bush nominee to replace O’Connor who would not face a filibuster.

The Editorials


The Washington Post calls upon the Senate to confirm Roberts as chief justice. The New York Times, on the other hand, says Roberts has failed to prove he has “the qualities to be an excellent chief justice.” David Broder thinks there’s no case to be made against confirming Roberts whatsoever. Writes Broder, he “is so obviously–ridiculously–well-equipped to lead government’s third branch that it is hard to imagine how any Democrats can justify a vote against his confirmation.” Nonetheless, E.J. Dionne gives it his best shot, urging a no vote (despite having written a more favorable column on Roberts before–some of us predicted this).

Wellstone vs. Roberts; Left Puppetmasters Issue Warning


People for the American Way is not moving on. Their latest e-mail:

Dear KAthryn,

It’s not just about winning or losing, it’s about whether our leaders are willing to defend our core values.

We won’t lie to you — John Roberts did a great job smooth-talking his way through his hearings (while saying very little). With some notable exceptions, few senators were appropriately outraged at Roberts’ appalling record, non-responsiveness, and deceptive answers. Some of our leaders seem afraid to take a stand against Roberts. 

Progressive activists have long been demanding that their leaders take principled stands for our core values — voting rights, women’s rights, environmental rights, privacy rights, and reproductive rights. Now is the time for us to remind our leaders that their job is to do the right thing. The vote on Roberts’ nomination is about much more than whether he should become our nation’s next chief justice. It’s about whether our leaders are going to stand up for our core values or cave when push comes to shove.

The progressive community needs to remind our national leaders that if they won’t stand up for our values when we need them, we won’t be there for them. We need to hold our leaders accountable — tell them to vote no on Roberts because it’s the right thing to do.

To paraphrase the late Sen. Paul Wellstone, we have to be in a fight to win one. The battle over Roberts is a crucial installment in our ongoing war against the right wing’s effort to roll back the progressive gains of the last century.
No one’s guaranteeing that we’ll win this round, but we cannot desert the battlefield.

If your senators support voting rights, women’s rights, environmental rights, privacy rights, and reproductive rights, demand they stand up for their values by voting NO ON ROBERTS.



Fox News just reported that the president will be consulting with senators next week on his #2 SCOTUS pick. This is, of course, what Senate Dems requested. And this, of course, is something the president does not have to do, constitutionally speaking.

Dr. Dean’s Nonsense


Making the rounds from the DNC:

He has opposed laws protecting the rights of girls and young women to have the same opportunities in sports as boys and young men. He has argued that politicians, not individual women themselves, ought to control women’s reproductive health care. He has opposed various remedies for the racial injustices which have occurred in America since slavery and which persist today. He has consistently joined the radical right in seeking to weaken voting rights protections, in essence attacking the rights of black and Hispanic voters to cast their ballot without paying poll taxes or being subjected to intimidation or gerrymandering. He fought against protecting all Americans from workplace discrimination. Most worrisome, he refused to answer questions on his limited view of the right to personal privacy that most Americans take for granted.

And then it’s Katrina time:

Over the last half century, we have made great progress in promoting equal opportunity for all Americans, but there is still much work to be done. Hurricane Katrina was more than the most catastrophic natural disaster in American history. Those who have in so many ways been denied the opportunity for full participation in our society once again suffered disproportionately in this tragedy — seniors, African-Americans and those burdened by poverty.

Now is not the time for a Chief Justice who is bent on turning back the progress we have made in moving America forward.

ME: Gotta keep making loud, silly noise to keep the base writing checks…

Constitution Day


For those readers in the Ohio area, Judge Alice Batchelder, who Adler mentioned among the possible Supreme Court nominees, will be delivering the Constitution Day lecture today at The Ashbrook Center at Ashland University this evening at 7:30 pm. Those wanting more details about the event can find them here, and those wanting to know a little more about Judge Batchelder can read Chris Flannery’s recent NRO article on her here. For those outside the Ohio, I understand that C-SPAN will be covering it, but I have not been told when it will air.

New Anti-Roberts Ad


The Coalition for a Fair and Independent judiciary has unveiled a new anti-Roberts ad entitled “Silence.” It’s available here.

No Agenda vs. Our Agenda


Occasional Volokh conspirator Erik Jaffe makes an extremely important point in this post.

Judge Roberts’s repeated point was that he was committed to the law, and not to a political agenda, yet most of the criticism seems to be that he lacks a particular favored agenda on things like civil rights, the environment, etc. But certainly the critics cannot have it both ways, pissing and moaning that he might reject a substantive conclusion that they favor, yet demand that he not bring his personal views into the judging process.
Read the whole thing.

Maureen Mahoney


It was great to hear her testify in favor of Judge Roberts’s confirmation. In some sense, she is the female version of John Roberts. Her appearance also reminded me how much of a shame it is that she was never confirmed when nominated by the first President Bush to a federal district court. Perhaps she’ll make the short list for a future court opening. If so, I’m confident she’d make a fine judge.

Modifying Casey


Casey pretended to be re-affirming Roe while throwing out parts of it. It sounds as though Adler is pretending to re-affirm Casey’s approach to precedents while throwing out parts of it, too. Fine with me.

“You’re the Best”


This morning, the Drudge Report is carrying the following item:

Exclusive Drudge sources in the U.S. Senate’s Hart Building heard Democrat Sen. Joe Biden say to Judge John G. Roberts in a private conversation on the hearing room floor: ‘You’re the best I’ve ever seen before the committee.’

Reich on Roberts Redux


Former Clinton Labor Secretary Robert Reich is among the Democratic witnesses testifying tomorrow. As readers may recall, he had an NPR Marketplace commentary on Roberts’s misrepresenting the Rancho Viejo case (see here). The piece has other problems, as a I documented here, but the Rancho Viejo misrepresentation was particularly sloppy. Marketplace ran a retraction (see here). I contacted Robert Reich through his website, but he has not seen fit to issue a retraction. Now, after grossly misrepresenting Roberts’ record, he seeks to advise the Senate on whether Roberts should be confirmed.

Pledge Politics


Eugene Volokh considers the politics of the recent decision holding “under God” in the Pledge of Allegiance unconstitutional. One fact he does not mention is that the judge who wrote the opinion was a Carter appointee.

The Next Nominee


Like Erick at RedState, I have heard that Judge Edith Jones is under serious consideration for Justice O’Connor’s seat, but I had not heard that Larry Thompson was also a serious contender. I’ve also been led to believe that Priscilla Owen is in the mix, and Alice Batchelder of the Sixth Circuit may be in the mix as well. Clement is out. Gonzales is not a likely nominee right now either, but that could change. Were the President to nominate someone who the base would prefer to him (e.g., Jones), and were that nomination to fail in the Senate, Justice Gonzales would become a real possibility.

Re: Roberts on Precedent


The short response to Ramesh is that the joint opinion in Casey did not faithfully apply its own stated test for stare decisis (a point made in Chief Justice Rehnquist’s opinion) — and at the same time rewrote as much of Roe as was preserved under the guise of preserving its “central holding.” I also think one should ignore the largely extraneous dicta about how the Court should not acquiesce in the face of public criticism. This language is not central to the opinion’s formulation for when to apply stare decisis and is highly unlikely to inform Chief Justice Roberts’ future application of the doctrine.


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