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Bench Memos

NRO’s home for judicial news and analysis.

Pledge Politics



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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



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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.

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Re: Roberts on Precedent



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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.

Thursday’s Witnesses



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Tomorrow (Thursday), after a few more Democratic senators get in a few more stump speeches and knowingly inappropriate questions, the Judiciary Committee will turn to other witnesses. Here is a link to the list.

I am pleased to report to Bench Memos readers that my friend and colleague, Prof. Patricia Bellia, will be testifying at around 4 p.m. eastern time.
If you want clearheaded, and clearly presented, analysis of Judge Roberts’s work as a judge, particularly with respect to structural-federalism questions, be sure to tune in.

Quote of the Day



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Feddie also notes the following observation from Dahlia Lithwick:

Here’s a man [Roberts] long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

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Roberts, Stare Decisis, and Roe



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Feddie has some comments defending Roberts on Confirmthem.org here. Professor Paul Sracic of Youngstown State also e-mails: “Using Roberts’s standard, it is fairly easy to argue that Roe has been ‘eroded.’ There is, for example, no way to reconcile most of Akron v. Akron Center for Reproductive Health (1983) with Casey. Is this just another way of saying that Roe has been dismantled ‘doorjamb by doorjamb?’ “

Re: Puppetmasters



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As predicted, Schumer turned up the volume but remained ineffective.

Tony Mauro on Roberts (on C-Span)



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At this point it is clear that “he’s made his case quite effectively” and “it’s all over but the shouting.”

The Dems Have the Religion Thing All Wrong



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The Demand for Documents



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In comments to the press during the break, Senators Kennedy and Leahy are charging that “the administration is hiding something” and demanding the release of memos from Roberts’s tenure in the Solicitor General’s office.

The RNC, Not Surprisingly



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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



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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



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Beldar Translates Senator Feingold here.

Puppetmasters



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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



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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



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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



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

Specter Really Crosses the Line



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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



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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?



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Opening of Day 2, Dems MIA

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