Bench Memos

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The RNC, Not Surprisingly


is sending this out:

CHAIRMAN JOE BIDEN: “[Y]ou Not Only Have A Right To Choose What You Will Answer And Not Answer, But In My View You Should Not Answer A Question Of What Your View Will Be On An Issue That Clearly Is Going To Come Before The Court In 50 Different Forms, Probably, Over The Next – Over Your Tenure On The Court.” (Committee On The Judiciary, U.S. Senate, Hearing, 7/22/93)

Roberts Educates Biden


Senator Biden argued that because Senators must disclose their views on specific issues when they stand for election, Judge Roberts should be willing to tell the Judiciary Committee his views on specific questions, such as whether there is a fundamental, constitutionally protected right to refuse life-saving medical treatment on behalf of one’s critically ill relatives. In response, Judge Roberts gave Senator Biden (and those watching) a much-needed education on the difference between judges and Senators. Federal judges don’t stand for election–and they shouldn’t be held to that standard.

More broadly, seeking to get judicial nominees to disclose their views on specific subjects–when it is clear that the answer to those questions will affect individual senators’ votes on the nominee’s confirmation–creates a context in which a nominee’s specific comments could be seen as a pre-commitment or promise to approach cases in a particular way should they be confirmed. This is what creates the ethical conundrum for nominees–and what differentiates answers given to senators in a confirmation hearing from a nominee’s prior writings.


Lost in Translation


Beldar Translates Senator Feingold here.



At the last break Nan Aron and others were loudly scolding Schumer for his weak questioning. Now that the puppeteers have issued their command, expect Schumer to try to turn up the heat.

Re: Roberts on Precedent


Jonathan, I’m a little confused about this–maybe you could help me out. First: “This is the test outlined in Casey–and this test is not a problem.” Doesn’t Casey have a 2,500-word section on how the burden that those who want to overturn a precedent have to meet is higher the more that precedent has been criticized? It’s hard for me to see how all that business about “overrul[ing] under fire” can be read any other way. This seems pretty hard to defend–and it leads me to question two. You suggest that you can see Roberts voting to overturn Roe at some point in the future. Obviously if criticism is a good reason not to overturn Roe, it’s going to be extremely difficult to overturn it; there are few decisions that have gotten more criticism. But even if we leave that aside, it doesn’t seem as though the factors that Roberts invoked to justify overturning precedent would apply. He suggests that a precedent may have to be overturned if it proves unworkable or if there has been doctrinal erosion: e.g, the precedents on which the precedent relied have been overruled. Neither seems to be the case with Roe. Unless there’s something about “workability” in this context I don’t understand, I don’t see how it’s “unworkable” to keep striking down anti-abortion laws. Monstrous, I’ll grant. Unworkable? And the Court has hardly undermined Roe’s foundations. It has, if anything, constructed defensive fortifications around it. So what am I missing, professor? I would be delighted to hear why I’m wrong, as you can imagine.


Anti-Roberts Groups Target GOP Moderates


The Hill reports that People for the American Way and other groups opposing Roberts’ confirmation are pulling out all the stops to try and turn a moderate Republican Senator. If they can get on GOP member to oppose Roberts, they believe it will be easier for swing Democrats to follow suit. I also think they’re trying to prevent the nomination and confirmation of anyone as conservative as Roberts to replace Justice O’Connor.

Leahy Follows Specter


And, right away, Senator Leahy hones in on death penalty questions that the Court will be revisiting this term.

Specter Really Crosses the Line


More than any other senator (thus far), Judiciary Committee chairman Arlen Specter has pushed Judge Roberts to answer questions about matters that are coming before the court. Whereas yesterday Senator Schumer pushed for answers about doctrines at issue last term, Specter pushed for answers on an issue — the “congruence and proportionality test” used by the Court to evaluate statutes enacted under section 5 of the 14th Amendment — that is central to a case already docketed for the Court this term. Even worse, the issue directly implicates the Court’s review of federal enactments. In other words, Specter was asking Roberts to tell the Senate how he, as a justice, would view the Senate’s own acts. Now that Specter has pushed this far, one can expect Senate Democrats to try and push even farther.

Roberts on Precedent


Unlike some, I did not find Judge Roberts answers on precedent to be all that problematic or difficult to understand. He outlined a very traditional — and widely accepted (even among conservatives) — view of stare decisis that is in complete accordance with basic notions of the rule of law Prior decisions of the Supreme Court are due respect. The burden is on those who wish to revisit or alter prior decisions. The burden is higher with respect to statutory issues than constitutional questions, because Congress can fix the former, whereas only the Court (or a constitutional amendment) can fix the latter. The burden is harder to meet the more a decision is entrenched in the legal fabric, but it does not place any decision of limits. This is the test outlined in Casey — and this test is not a problem. Indeed, there are many who argue that a problem with Casey is that it did not faithfully apply its own test. I listened carefully to Roberts’s remarks on this issue, and he said nothing that would be inconsistent with his a) voting to uphold the New Hampshire parental consent law that will be before the Court this year; b) voting to uphold the federal partial-birth abortion act also likely to go before the court (though I’d love to see Thomas and him question it on federalism grounds); and c) eventually voting to overturn Roe when the issue is squarely before the court at some later date. Is this what a Justice Roberts will do? I suspect so, but one can’t be certain. This is what I believed before the hearings began, and it’s still my sense today.

Um, So Where Are the Dems?


Opening of Day 2, Dems MIA

Senatorial Bloviating, By the Numbers


Each senator typically spoke more than John Roberts yesterday, according to one blogger.

Round 2


The second round of questioning is likely to be more aggressive and pointed. Some potential lines of attack — civil rights, commerce clause — were previewed yesterday, but there will be others. Don’t be surprised if today’s hearings run late. Senate Democrats will almost certainly insist on a third round of questioning, if not more. They’ll make more complaints about the failure to release the SG memos, and argue this justifies more questioning. As a result, Roberts may face more questions tomorrow, and the outside witnesses could get pushed to Friday.

“Privacy” Does Not Mean Abortion


The Washington Post is so used to the euphemisms of the Left that it doesn’t seem to understand that the Left’s code is not ordinary English. Consider this passage from today’s article:

Biden asked whether “there is a right of privacy to be found in the liberty clause of the 14th Amendment?” Roberts replied, “I do, Senator. I think that the court’s expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.” The answer appeared ambiguous because some of the current justices have made it clear they would support overturning Roe.
The reporters evidently think the phrase “right of privacy” would ordinarily encompass abortion and find Roberts’s answer “ambiguous” only because “some of the current justices” Roberts referred to—namely, Scalia and Thomas—would overturn Roe. But there is no reason at all to suppose that “privacy” would ordinarily mean “abortion”. In other words, one can believe strongly in privacy rights (as I do) without supporting abortion at all.

The Winston Group recently released the results of a poll that asked “When you think of the right to privacy, what comes closer to how you think of that right?” Given two choices, an overwhelming majority (66%) answered “The right to be free from government intrusion — including private phone calls, private mail, private medical and financial information, and the right to raise your children as you see fit.” Only 26% answered “The right to make decisions free from government interference, such as the right to choose abortion.”

Schumer Flunks ConLaw


Senator Schumer is a very smart guy, but he didn’t show it today. His repeated statements that Wickard v. Filburn — the infamous New Deal-era case in which the Commerce Clause was held to authorize federal regulation of the growing of wheat for consumption on the farm on which it was grown — was a foundational and fundamental case of constitutional law, on a par with Griswold or Brown. This is just silly. Wickard is now — and has long been seen — as a fringe decision, far from the core of the federal commerce power. It is also not the case (contrary to Sen. Schumer’s claims) that established Congress’ authority to regulate intrastate economic activity. My first year ConLaw students get this, but somehow Senator Schumer does not.

Chris Matthews


has declared today “a good day for those who support abortion rights.”

Schumer Prediction


Chuck Schumer just asked John Roberts if there is anything from his Reagan days he supported/advocated for that, in hindsight, at age 50, he thinks differently of. Roberts gave none–pointing out the immense volume of the policies he contributed to, as the recent (ill-advised) document drop testifies to. Watch my senior senator run to the cameras with some outrageous-sounding policy that Roberts refused to reject.



Someone (male) just said to me:

Feingold is explaining case law to Roberts. That’s like me telling you what it’s like to be a woman.

Time-table Senate Source Says


“Looks like we won’t have a second round of questions tonight. So…we won’t be here all night.”

Thomas on Griswold


From Biden’s statement after Thomas’s hearing:

Now, what did Judge Thomas say about this matter at the hearings? Judge Thomas did make it very clear that he agreed with the Court’s ruling on Griswold versus Connecticut, a case that the Chair is fully familiar with, and the question of the marital right to privacy. But with respect to the scope of the right to privacy, the scope of that right to privacy in the nature of an individual right to privacy, Judge Thomas remains consistently evasive, which is his right, even after repeated efforts by me to give him the best possible chance to assuage my concerns and the concerns of others.

The Actual Rule


“[A] judge or a candidate for election or appointment to judicial office shall not … with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office….”

— ABA Model Code of Judicial Conduct, Canon 5A(3)(d)(ii) (2003), (emphasis added).


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