Bench Memos

NRO’s home for judicial news and analysis.

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.

The Battle Shifts?


Based on this story in today’s NYT, it appears that Senate Democrats may ease up on the confirmation of John Roberts to focus their fire on whomever the President nominates to replace Justice O’Connor. This seems like a shrewd move on their part. Judge Roberts is certain to be confirmed, and it could be difficult to mount back-to-back campaigns opposing a nominee. On the other hand, activist groups have already expended a fair amount of ammo on Roberts, and the public may not be so quick to forget if the Dems suddenly change gears (especially with groups like the Committee for Justice running independent ad campaigns in support of nominees). Their decision is complicated by the fact that we don’t yet know who Bush will nominate for O’Connor’s seat.

Bored with Roberts or Just a Brilliant Disguise?


Are Senate Dems resigned to the next chief? Kirkpatrick@NYTimes:

“Has anything come up before the hearings that is a showstopper for Roberts? The answer is no,” said Senator Richard J. Durbin of Illinois, the Democratic whip, who, as a member of the Judiciary Committee, voted against confirming Mr. Roberts to a federal appeals court seat two years ago.

George Will’s Bit of Fun


Oh what a clever imp George Will is in his Thursday column! He leads on his readers with questions apparently meant to be serious, and then lets us in on the joke in the final sentence: “Or is this the fallacy of the false alternatives?”

Only then did I see that this had been the pattern of the whole column–to present, in the guise of questions for Roberts, a string of ill-constructed alternatives to which no sensible person would agree to be confined in construing the Constitution.

First, citing evidence (pretty good evidence, too) that the framers of the 14th Amendment did not mean to reject all uses of racial categories by state governments, Will asks, “So what help are ‘historical grounds’ when construing the Constitution?” Huh? Does Will really mean to suggest that if history doesn’t dictate our preferred policy outcomes, we should reconsider taking history seriously? I should have gotten the joke right way, but I was too slow.

Next, he contrasts the prevailing view of the “cruel and unusual punishments” clause of the 8th Amendment–that its meaning changes with society’s “evolving standards of decency”–with Justice Scalia’s statement that the “whole purpose” of a Constitution “is to prevent change,” and asks, “Is Scalia wrong?” Has it occurred to Will that both views might be wrong–or more precisely, radically incomplete as accounts of the Constitution and of judges’ role thereunder? Surely it has occurred to him. But at this point I’m still, foolishly, taking Will seriously.

Next Will repeats the standard praise of adherence to precedent, remarks that there are times when precedent should be abandoned, and asks Roberts when that abandonment should occur. Isn’t the answer obvious–and hasn’t Roberts already given his answer–that one overturns precedents when they are wrong? But wait. Will has slipped into his question a mention of overturning of Plessy v. Ferguson and hence of racial segregation. Now I begin to see. He’s having us on. Didn’t he begin the column by suggesting that history shows Plessy to have been right? And doesn’t he know that Brown didn’t formally overrule Plessy anyway? Sure he does. Tee hee.

Next Will sets up a false alternative between devotion to the text of the Constitution and inquiry into the “intent” of its framers, by imagining that there is some difficulty in discerning whether “speech” and “press” include people’s “handwritten notes.” I’ll have to use that stumper in my next exam.

Continuing on the subject of the First Amendment, Will again poses a choice between two alternatives no one would accept as the only ones available–suggesting that in the 1798 debate over the Sedition Act, one side’s view of the meaning of a “free press” represented “originalism” and the other didn’t. Read it yourself if you don’t believe me. It’s a hoot.

I knew I was seeing that patented George Will smirk behind it all when I got to his question whether Roger Taney’s opinion in Dred Scott was “(a) originalism and (b) activism?” Ho ho. Of course it was both, wasn’t it? But it was bad originalism, false originalism, mendacious originalism, as it was exposed to be by the dissents of Justices McLean and Curtis, and most famously by Abraham Lincoln (no mean originalist he). That’s why it was activism!!

Go read the laugh-out-loud final paragraph for yourself. Just remember that not many days ago, George Will had kind words to say on behalf of judicial activism. Who knew he was such a comic? James Lileks, call your office.

Flunked Out of Logic


Many thanks to K-Lo for bringing Richard Cohen’s ridiculous article to my attention. His claims about the need to experience failure to relate to the failures in our society—itself the sort of demeaning fare that one expects from the media elites–are the kind pabulum soundly crushed in most introduction to rhetoric classes on the first day. (You can almost hear the every-professor: Only those with particular experience can have an informed opinion? Really? Then who can offer an opinion about suicide, other than from the observers’ perspective?) No, Richard, we don’t need more college failures on the bench; we need less of them writing for the Washington Post.

Edith Jones


I can’t help noting that lots of smart people see Judge Edith Jones’s stock soaring. Her nomination (like that of several other candidates) would be another master stroke by the President.

Everyman Richard Cohen Pinpoints the Scandal of John Roberts



Subscribe to National Review