Bench Memos

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Delay Confirmed


Thursday or Monday will be the start. Should really be Thursday.



I betcha they don’t start tomorrow, but there is absolutely shouldn’t be delayed until next week. As Jon says, there is no reason to delay beyond Rehnquist’s funeral.


No Cause for Delay II


The decision to nominate John Roberts for Chief Justice is no more a cause for delay than Katrina. Roberts is the same nominee as he was when picked to replace Justice O’Connor. There are no additional documents, decisions, or other matters that need to be considered. In short, nothing has changed other than the politics — and this is the only reason Democrats are calling for a delay. Senate Democrats agreed to this schedule weeks ago. Chairman Specter should hold them to their agreement.

No Cause for Delay I


If then Judiciary Committee Chairman Leahy could hold a confirmation hearing for Barrington Parker on September 13, 2001, there’s no reason to delay the Roberts confirmation hearings for Katrina. If there need to be additional floor votes on Katrina-related matters, the committee can always recess for 15-30 minutes.

The Best Choice


President Bush has once again impressed with his decision to nominate Judge John Roberts to be Chief Justice. He is the obvious choice for the position. Acting quickly to name Roberts also ensures the chance for there to be a new Chief when the Court begins the term in October. Well done. (Now if only the White House handled post-Katrina matters with the same dispatch and resolve . . . ).


Rehnquist & Roberts


An e-mail circulating has our friend Shannen Coffin’s take on the chief pick:

For all the reasons nominating John Roberts to the Supreme Court was an excellent decision, the President’s decision to nominate him to fill the Chief Justice position is a master stroke. Roberts will guide the Court deftly and with the humility and respect for the law and the limited role of the courts learned from his mentor chief justice Rehnquist. While we mourn the loss of a legal giant in William Rehnquist, we can take great comfort that his legacy will continue in Chief Justice John Roberts.

“The President said that in making this decision he was looking for someone with strong intellect, temperament, and reverence to the Constitution. As a former colleague of Judge Roberts I can tell you that these credentials that guided the President in this decision are an excellent description of Judge Roberts. He is an incredibly smart man and reasoned legal thinker who, no matter what pressures he may be under, handles all challenges with great fairness and calm. Judge Roberts is a leading legal scholar who quickly earns the respect and loyalty of his colleagues. He has argued 39 cases before the Court and already has the respect of the Justices currently sitting on the Supreme Court.

My Plea


Mr. President, please reject the Left’s current efforts to influence your selection to fill O’Connor’s seat. I can assure you, as someone who was involved in vetting judicial candidates under President Reagan, that these are nothing more than sucker punches. Your political enemies wish you ill. Witness how these same voices seek to exploit politically this natural disaster.

Your conservative base has stood with you, Mr. President, through thick and thin. Many of us have had to hold our noses — often and hard — on issues like the new prescription-drug entitlement, federalizing local education, expanding farm subsidies, a pork-laden transportation bill, and immigration. But we could always count on you to defend the integrity of the judiciary with the appointment of solid originalists who embrace the Constitution and respect representative government. The American people are aware and concerned about the enormous power the Supreme Court now wields, and they are counting on you to stay the course.

You have a strong conservative bench from which to choose a nominee. My favorite is Judge Michael Luttig, who meets all the conditions you set forth for a justice. He’s a justice in waiting. We all know it. Of course, there are other outstanding candidates. Edith Jones, Janet Rogers Brown, Priscilla Owen, Sam Alito, Michael McConnell, to name a few. You know them.

I’d like to also mention a touchy subject: Attorney General Alberto Gonzales is a good man. Your affection for him is obvious. He has served you well in several important jobs. But, Mr. President, in your heart you know his judicial philosophy remains in serious question, and that there are more philosophically reliable candidates from which to choose. And any notion that he would be welcomed by your political opponents is wishful thinking. Remember the so-called “torture memos” and how the Left tried to taint him with them? This in no way is intended to disparage Mr. Gonzales. By all accounts, he’s an outstanding attorney general. But we’re talking about a lifetime appointment to an enormously powerful Court, and there’s simply no room for doubt.

If more people of integrity like Clarence Thomas and Antonin Scalia are not appointed to the Supreme Court, we can expect 5 or 6 justices to continue to impose their personal policy preferences on the people — further eroding private property rights, traditional values, political speech, citizenship requirements, the war on terrorism, and the very rule of law they’re sworn to uphold. The stakes for the nation are huge. Now is the time to help the Court find its constitutional way, regain some of its lost respect, and celebrate the Constitution.

The Other Justice


Prediction: The president announces his associate justice pick tonight, when he returns to D.C. from the Katrina-ravaged area. It will be a strong message highlighting his desire to get the process rolling with speed. The vetting has all happened on the White House side, they went through candidates before the Roberts-as-associate-justice announcement. An announcement about the other opening tonight would make a lot of sense. And any crassness concerns–nominating someone before Rehnquist is even buried–seem to be mute with the announcement of Roberts as his chief pick already.

As If


A Reminder about Gonzales


Ted Kennedy is looking forward to torturing him about water torture. He would not be the easy pass the conventional wisdom assumes/spins he would be.

Re: Gonzales as Chief


From the Washington Post:

One of the arguments on the other side is not to do anything to complicate a confirmation process for Roberts that has gone smoothly. And Bush knew when he picked Roberts for associate justice that he probably would have a chance to name a chief justice, so he might already have someone else in mind.

If so, some Republican strategists believe it could be Gonzales, a longtime confidant from Texas who served as White House counsel in Bush’s first term and would be the first Hispanic to serve on the Supreme Court. Many conservatives howled last summer at the prospect of Gonzales replacing O’Connor because they view him as unreliable on abortion, affirmative action and other key issues, and they renewed the complaints within hours of Rehnquist’s death.

“I don’t know what they get by alienating the last remaining 35 percent of the country that’s really on his side,” said a conservative ally of the White House who would comment only if granted anonymity.
I suspect the president knows that last bit. I also suspect he nominates someone, and quickly, who will not make Chuck Schumer at all happy. And it won’t be Gonzales. We will soon see.

Political Games


The Announcement


Transcript, as released by the White House:

8:01 A.M. EDT

THE PRESIDENT: Morning. This summer I announced the nomination of Judge John Roberts to be associate justice of the Supreme Court of the United States. I choose Judge Roberts from among the most distinguished jurists and attorneys in the country because he possesses the intellect, experience and temperament to be an outstanding member of our nation’s Highest Court.

For the past two months, members of the United States Senate and the American people have learned about the career and character of Judge Roberts. They like what they see. He’s a gentleman. He’s a man of integrity and fairness. And throughout his life, he has inspired the respect and loyalty of others. John Roberts has built a record of excellence and achievement, and a reputation for goodwill and decency toward others.

In his extraordinary career, Judge Roberts has argued 39 cases before the nation’s Highest Court. When I nominated him to the U.S. Court of Appeals for the District of Columbia, he was confirmed by unanimous consent. Both those who’ve worked with him and those who have faced him in the courtroom speak with admiration of his striking ability as a lawyer and his natural gifts as a leader. Judge Roberts has earned the nation’s confidence and I’m pleased to announce that I will nominate him to serve as the 17th chief justice of the Supreme Court.

The passing of Chief Justice William Rehnquist leaves the center chair empty just four weeks left before the Supreme Court reconvenes. It is in the interest of the Court and the country to have a chief justice on the bench on the first full day of the fall term. The Senate is well along in the process of considering Judge Roberts’ qualifications. They know his record and his fidelity to the law. I’m confident that the Senate can complete hearings and confirm him as chief justice within a month. As a result of my decision to nominate Judge Roberts to be chief justice, I also have the responsibility to submit a new nominee to follow Justice Sandra Day O’Connor. I will do so in a timely manner.

Twenty-five years ago, John Roberts came to Washington as a clerk to Justice William Rehnquist. In his boss, the young law clerk found a role model, a professional mentor, and a friend for life. I’m certain that Chief Justice Rehnquist was hoping to welcome John Roberts as a colleague, and we’re all sorry that day didn’t come. Yet it’s fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court, and his complete devotion to the cause of justice.


JUDGE ROBERTS: Thank you, Mr. President. Thank you. I am honored and humbled by the confidence that the President has shown in me. And I’m very much aware that if I am confirmed, I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years.

Thank you, Mr. President, for that special opportunity.

The Roberts Court


John Roberts will be nominated for chief justice later today.





The Hurricane Seat


If I had a dollar for everyone today who said to me: “So Pickering then…”

The American Center for Law and Justice on Rehnquist


We are saddened by the death of Chief Justice Rehnquist whose tenure leaves an indelible mark on the legal and cultural landscape of this nation.

The Chief Justice served this country with distinction and his tenure as Chief Justice will be remembered for its precision and order. He embraced the political and cultural issues of the day and sought to bring a constitutional understanding that was consistent with the framers of the Constitution.

Chief Justice Rehnquist approached each case with honor and integrity a hallmark that will certainly contribute to his lasting legacy on the court.

It has been my privilege to argue regularly before the high court and appear often before the Chief Justice. He agreed with the ACLJ’s position in numerous cases including the distribution of religious materials at airports, the creation of student-led Bible clubs on public school campuses, the ability for religious organizations to use public school facilities after hours, the protection of the First Amendment rights for pro-life demonstrators, and ensuring that minors could exercise their First Amendment rights by participating in political campaigns.

Chief Justice Rehnquist, who served on the high court for 33 years and as Chief Justice since 1986, clearly understood the importance of the First Amendment protections outlined in the Constitution. His death marks the end of a historic era that spanned decades and saw the high court tackle many of the most significant cultural and political issues of the day. He will be truly missed.

Speaking of Nonsense on Fox


In the wee hours of the morning, I had the displeasure of dealing with the contemptible Professor Alan Dershowitz and his vicious personal attack on Chief Justice Rehnquist on Fox News literally moments after the nation learned of his death. While I was thinking worse, I had the good judgment to limit my verbal characterization of Dershowitz as a disgrace and a jerk.

The Hurricane Seat?


Kathryn mentioned Tim Russert raising this on MTP this morning and Lanny Davis later said on Fox News that George Bush should nominate someone from the moderate, center of the country because of the hurricane. This follows Susan Estrich’s claim last evening that the seat should be filled by Edith Clement because she is a woman, and from Louisiana. I’ve heard of the supposed woman and minority seats on the court, but a hurricane seat? These commentators make clear that hurricanes aren’t the only things full of ill wind.


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