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Bench Memos

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Messing with Moses!



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From James Lakely on the Washington Times blog:

Mr. Roberts was involved in devising a strategy to blow off inappropriate inquiries from a persistent Charlton Heston.

Mr. Heston wrote to Mr. Smith on Aug. 9, 1982, to bring to his attention a “miscarriage of justice” inflicted on the son of a long-time friend and high-ranking official in the Indian government. Adil Shahryar, who was in his 20s, was convicted of attempting to set fire to a Sheraton Hotel in the South Beach section of Miami and attempting to place a box with two bombs inside on a cargo ship. In what Mr. Roberts described as a complicated but “airtight” case, Shahryar was sentenced to 35 years in federal prison.

The star of “Planet of the Apes” and “The Ten Commandments” told Mr. Smith that “Adil himself has been a guest in our home, and we always thought of him as a fine boy.” Though Mr. Heston noted that he could not make any judgment on Shahryar’s guilt or innocence, he argued that the punishment seemed “remarkably harsh.” And while he regretted putting his friend, Attorney General Smith, in an awkward situation, Mr. Heston played the Reagan assassination card:

“Lydia and I happened to be in Delhi on the day Hinckley was declared innocent,” Mr. Heston wrote. “An Indian official remarked to us that we Americans had a strange country, where a man could shoot the president and get off scot-free, while another could launch a failed fraud and get thirty-five years. I had no answer for him.”

Well, Mr. Roberts suggested an answer for his boss: stay out of it. Mr. Roberts penned a reply for Mr. Smith’s signature dated Aug. 27, 1982, telling Mr. Heston that “we must rely on the American criminal justice system” and that as attorney general, Mr. Smith believes “it is the best system I know of for vindicating the innocent.”

Schumer Turns On You & Uses You Simultaneously



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A new release: “I am disappointed that Senator Specter is supporting the Administration’s ill-advised refusal to turn over key documents written by Judge Roberts. It will make it all the more important for Judge Roberts to answer in a forthright manner the kinds of questions that Senator Specter and I have posed.”

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Roberts on the Role of Judges



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It would be tempting just to play defense on the Roberts nomination, and the slew of distortions from the Left would keep one fully occupied. But the affirmative case for Judge Roberts needs to be made over and over, especially since the spotlight on the confirmation process provides a valuable opportunity to try to inform the public understanding of the proper role of the courts.

Roberts’s executive-branch documents show that he has a deep and longstanding appreciation of the proper role of judges in the American constitutional republic. I hope to use a series of posts to highlight his understanding.

Let me begin with Roberts’s rejection of the prevailing liberal myth, claimed to have been established by Marbury v. Madison, that the Supreme Court is, as asserted in 1958 in Cooper v. Aaron, “supreme in the exposition of the law of the Constitution.” Roberts addressed and refuted this myth in his lengthy memorandum making the case for Congress’s power to remove certain classes of cases from the Supreme Court’s jurisdiction:

“It is argued, however, that divesting the Supreme Court of jurisdiction over a particular class of cases would undermine the constitutional role of the Court as the ultimate arbiter of constitutional questions. The Cons[t]itution, however, does not accord such a role to the Court. The authority of the Court to interpret the Constitution derives from the necessity of its doing so in the course of discharging its judicial responsibility to decide those cases and controversies properly presented to it. [Lengthy quotation from Marbury.] If the necessity of interpreting the Constitution is removed, as it would be if the Court were divested of jurisdiction, the basis for the Court’s role as final arbiter of the Constitution is removed.”
It is of course true that Roberts’s memorandum expressly states that it “is prepared from a standpoint of advocacy of congressional power over the Supreme Court’s appellate jurisdiction” and “does not purport to be an objective review of the issue.” But Roberts’s explanation of the Court’s actual role is so clearly correct (and so contrary to conventional wisdom) that it is difficult to imagine that he does not embrace it.

To be sure, the Supreme Court will have the final word in cases that it decides, and in a properly functioning system its judgments and opinions will deserve considerable respect. Moreover, the Supreme Court, as a body, is far more able than the president or Congress to offer coherent and principled analyses of the Constitution (though it obviously does not always display that ability). So what difference does it make, outside the context of legislation to divest the Court of jurisdiction, that the Constitution does not make the Court “supreme” over the other branches in interpreting the Constitution?

I think it makes a great deal of difference. First, the mistaken view that the Supreme Court is the ultimate expositor of the Constitution readily degenerates, in the minds of the justices, to the practical proposition that the Constitution means whatever they say it means. That is a license for lawlessness, a license that the Court has freely exercised in recent years. For example, the insipid New Age assertion (embraced by six current justices, in Planned Parenthood v. Casey or Lawrence v. Texas) that “[a] t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” really means that the Court is claiming the unconstrained power to define for all Americans which particular interests it thinks should be beyond the bounds of citizens to address through legislation.

Second and relatedly, the recognition that the Court is not supreme over the other branches leads readily to the recognition that the Court itself is bound by the Constitution and that erroneous decisions it renders on constitutional questions are themselves unconstitutional acts. This recognition has healthy consequences for how a justice approaches the question of overturning wrong precedent.

By the way, expect the same senators who object to the Court’s supposed failure (in Senator Specter’s words) to “respect Congress’s constitutional role” in enacting legislation to be the strongest to criticize Roberts for respecting Congress’s constitutional role in interpreting the Constitution.

Balancing Test



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Keith Whittington’s article shows that all this “balance” talk is a lot of baloney. He relies in part on several telling examples: Should LBJ have appointed a reactionary to an already liberal Court, instead of Thurgood Marshall? How about FDR? When the conservative “four horsemen”
(McReynolds & Co.) began retiring, should he have sought like-minded replacements to maintain “balance”? Here’s one Keith did not use: Should Lincoln have sought to keep the Court delicately divided between those who thought that Dred Scott was rightly decided–and those who didn’t?

At this rate it will not be long before John Roberts’ intelligence is used against him. Which Democratic senator will follow in the shallow footsteps of Roman Hruska (R., Neb.), who famously proposed affirmative action for mediocre people in judicial appointments?

Keith’s article suggests one thing about the Democrats’ position which is not simply sausage. Do not the calls for “centrist,” “mainstream,” and “moderate” views in a nominee–all to “balance” the Court–imply that, to constitutional questions at last, there are no right answers? (By
“right” here I mean “correct.”) According to this middling logic, you can
get too much of a good thing. By the “balancer’s” logic, even if Stevens (or Scalia) were right about the Constituion, we would not want nine Stevens (or Scalias). “Balance” implies a roughly equal number of people with irreconcilable views. Irreconcilable views can’t all be right.

A senator who looks at confirmation this way holds that neither Ginsburg nor Scalia nor Thomas nor Stevens is “right” about (you pick it) church-state, abortion, or federalism. Their positions are not interesting to the senator as possibly correct answers to constitutional questions. Their views are instead just so much data for the Senator to churn, churn, churn. His task is is not to decide if John Roberts is right (that is, correct) about anything. It is rather to figure out whether his particular point of view–whatever it is, right or wrong but so long as (I guess) it is in the “mainstream”–is proportionally represented on the Court.

Keith quotes Senator Schumer as saying that an “excellent” Court would have one Brennan and one Scalia. Well, an interesting Court, maybe. But Brennan and Scalia were not both right about the issues that count. They disagreed across the board: One had to be wrong. (Of course, both could be.) Assuming, then, that Senator Schumer favors an “excellent” Court, he invites us to believe that he would confirm someone whose views on all the issues that count were grossly mistaken. Senator Schumer wants us to believe he would and that other Senators should vote to confirm, say, Robert Bork or Edith Jones or Matt Franck to the Supreme Court to fill the seat of a departing conservative. (All are good ideas, by the way.)

Schumer seems to be thinking of constitutional law as an extension of ordinary politics, laden perhaps with a peculiar rhetoric but with no intrinsic normative criteria different from those of public decisionmaking generally. In his view, what the courts do stands to the Senate as perhaps the Senate stands to the House. A bit upmarket, but no different in kind.

But, if this really is his view, Schumer’s conclusion makes no sense at all–unless we are to believe that Schumer would recommend to the voters of Pennsylvania, for instance, that they return Rick Santorum to the Senate in 2006. An “excellent” Senate would, after all, have one Santorum and one
Schumer.

Re: More Biased Reporting from the Washington Post?



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A well-connected source whose judgment I trust (and who is a strong supporter of the administration) tells me that I’m wrong to think that Washington Post reporter Jo Becker might be responsible for the bias in recent Post articles:

Based on some past experiences, I think Jo Becker’s a solid reporter, and that the WPOST’s team on the Roberts’ nomination is not generally in the pocket of the Left. (I wouldn’t say the same thing about the New York Times team.) Consider the possibility that the source of bias in the WPOST articles you mentioned may actually be a function of the different early pr strategies employed by the Left and the Administration. The Left’s primary background briefers are lawyers who are prepared to delve deeply into the substance of ‘controversial’ memos. The Administration’s in-house team has been composed primarily of politicos and communicators who are great at what they do, but can’t be expected to know the nuances of the law and why they matter. Reporters don’t know the substance in depth either, and have therefore defaulted to the Left’s seemingly objective and unchallenged analysis of the hard legal issues. I suspect the Administration realizes this now and is making adjustments to its own team.
If my source’s very disturbing hypothesis is correct (and I now have reason to think it is), I offer my sincere apologies to Jo Becker–and to the other Post reporters whose articles I’ve sharply criticized. (I’m not going to concede that reporters can’t be held accountable for any of the distortions that I’ve identified, but this account would put thing in a very different light.) I also wish the administration luck in its urgent task of making the appropriate adjustments.

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Re: The Wyden Story



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Here’s Ed Gillespie’s letter to the NYTimes about the Wyden-Roberts story this morning Shannen wrote about earlier.

Yes, Even More on NARAL’s Lies



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The same New York Times story that Shannen criticizes for its distorted coverage of Judge Roberts’s meeting with Senator Wyden also tries to put an exculpatory spin on NARAL’s vicious ad against Roberts. According to the story, the Bray case “is particularly upsetting to advocates for abortion rights because the lead plaintiff, Michael Bray, had been convicted for his involvement in 10 bombings at health centers in the 1980’s.” But the claims that abortion advocates presented in their civil action in the Bray case involved claims of trespass and obstruction, not bombings; Michael Bray was one of many defendants (not the lead plaintiff, and not the lead defendant); and the Bray who was the lead petitioner in the Supreme Court proceeding was Jayne Bray, not Michael.

More Biased Reporting from the Washington Post?



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Today’s front-page article in the Washington Post tries to make a big deal out of the fact that the White House is reviewing additional records from John Roberts’s executive-branch service before making them public. Given the privilege and privacy concerns that such documents may raise, such review would seem to be standard operating procedure. But the Post charges “delay.”

The Post article leads with the assertion that the White House has been “[t]hrown on the defensive by recent revelations about Supreme Court nominee John G. Roberts Jr.’s legal work.” It claims that White House officials “recognize that Roberts’s record is going to be central” to his confirmation hearing. It follows last Friday’s Post article claiming that “the White House and its allies have grown concerned that the documents released so far have painted Roberts as a rigid ideologue.”

These assertions seem highly tendentious at best. The “recent revelations” about Roberts’s legal work establish–surprise!–that he is a deeply intelligent conservative with a longstanding commitment to principles of judicial restraint. Prodded by left-wing groups, Senate Democrats will of course try to distort his record, but there is no reason that any controversy over his admirable record should be “central” to his hearing. (Note that Ruth Bader Ginsburg’s demonstrably extremist record as an ACLU activist was not central to her hearing). And who but the rigid ideologues on the Left can think that Roberts’s documents show him to be a “rigid ideologue”?

I see two leading possible explanations for the Post’s distorted accounts. One theory is that Jo Becker, the Post reporter on both of these articles (sole author of today’s and lead author on last Friday’s), is working arm in arm with left-wing groups to try to generate traction against Roberts’s nomination. That theory would receive substantial support from the previous hit jobs on Roberts in which Becker has taken part. (See here, here, here, and here.)

By the way, from what I can tell, the Post doesn’t make publicly available the backgrounds of its reporters. Especially on political stories, aren’t readers entitled to information that would enable them to assess whether bias may be coloring the reporter’s account? Or does the Post embrace the fiction that everyone but reporters has potential biases?

A second possible explanation might be that some political folks in the White House might think it advisable not to stand and defend Roberts as a principled conservative but instead to try to run to the Center. I have no idea whether anyone has that view, though the disproportionate emphasis on denying that Roberts was ever a member of the Federalist Society makes me wonder. I sure hope that no one is pursuing that strategy, for it seems to me plainly foolish. Undermining Roberts’s conservative base of support will not help his confirmation. And even if it did, it would be far better in the long run to get Roberts confirmed as a clear proponent of judicial restraint and in the face of substantial opposition from Senate Democrats than to have a neutered, muddled version of him confirmed virtually unanimously.

Seeking Balance?



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While we here at Bench Memos have had our disagreements over whether Senator Schumer is right to insist on wide-open questioning of John Roberts, I’ll bet we’re all agreed that the senior senator from New York is up to no good when it comes to why he wants what he wants.

Today at NRO, Keith Whittington has a fine article about the transparently bad argument Schumer has advanced about the alleged need for “balance” on the Court. What he really wants, of course, is a left-wing Court, as soon as possible. But of course, he is a left-wing senator, so this is no surprise. The real scandal, to which Keith alludes, is that academics such as Cass Sunstein and Laurence Tribe have aided and abetted the Schumers in the political world by putting forward their own pseudo-scholarly arguments for “balance.”

And for the record: Keith writes that back in the Reagan years Laurence Tribe “published” a book titled God Save This Honorable Court. “Published” it–that’s quite true. But as readers of The Weekly Standard may recall, there are serious questions about how much of that book Tribe actually wrote, how much of it was “written” by student assistants, and how much of it was simply stolen from political scientist Henry J. Abraham’s Justices and Presidents (retitled Justices, Presidents, and Senators in its most recent edition, and still the best thing on the history of Supreme Court nominations).

I have mentioned this offense against another’s intellectual property on a previous occasion here, and some readers might think I am vindictive. No, I just believe that responsible scholars should shun and shame irresponsible ones until they ‘fess up or get their comeuppance–neither of which has happened in the Tribe-Abraham case. (And don’t forget Tribe the teller of tall tales about himself, as Ramesh Ponnuru has written for NR.)

The Left Strategy



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From The Hill:

By targeting Roberts on issues of importance to blacks and women, the interest groups will make it difficult for Democrats not to pose a strong challenge to Roberts during the Senate confirmation process.
Also in The Hill, Democratic pollster believes “Roberts can be beaten.”

As I mentioned last night on Hugh Hewitt, the strategy makes sense from the Left’s vantage point: Throw, throw, throw and something will stick. They don’t have much else to do here, they don’t have much concrete to throw, so there are no guarantees. But his name will be muddied, associated with random rhetorical acts of violence–like the NARAL ad–however unfairly. The truth will be heard to varying degrees in some quarters, but people will wonder. Schumer and co. will say some outlandish things during the hearings…but I suspect Roberts will impress and we’ll all be able to moveon. With a fresh infusion of good ole’ American Constitution kinda guy on the Court. Or so is the hope.

The Wyden Meeting



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A New York Times story today reports on Senator Ron Wyden (D., Oreg.)’s characterization of a “courtesy” meeting with John Roberts. Apparently, courtesy only goes one way, since Wyden was happy to put words in Roberts mouth where he knew that Roberts could not respond: “I asked whether it was constitutional for Congress to intervene in an end-of-life case with a specific remedy,” Mr. Wyden said in a telephone interview after the hourlong meeting. “His answer was, ‘I am concerned with judicial independence. Congress can prescribe standards, but when Congress starts to act like a court and prescribe particular remedies in particular cases, Congress has overstepped its bounds.’ ” According to the story, which cites only Wyden as a source, Wyden “said that Judge Roberts, while not addressing the Schiavo case specifically, made clear he was displeased with Congress’s effort to force the federal judiciary to overturn a court order withdrawing her feeding tube.”

According to a White House source familiar with the meeting, the story is completely off base and represents a “gross lack of journalistic ethics.” The reporter, Sheryl Gay Stolberg, “never called the White House and didn’t call the judge to check the quotes.” She was essentially “anointing a Democratic Senator to be spokesperson” for Judge Roberts.

The substance of Wyden’s account is grossly misleading, according to this White House source. “Judge Roberts said more than once in the meeting that he’s not going to talk about the Schiavo case.” Moreover, there was “nothing said in the meeting to give support to the notion that he was displeased with Congress’s action” in the Schiavo case.

As for Roberts’s purported statement that “Congress can prescribe standards,” but may overstep its bounds when it seeks to prescribe particular remedies, Wyden’s characterization of that statement is materially misleading because it was not the full quote. Apparently, Roberts was only characterizing Supreme Court precedent that discussed that line of thought. It would have been more accurate for Wyden to explain that Roberts said something like “I am aware of Supreme Court decisions that say that . . . .” But Roberts did not in any way give his own view of Congress’s power, and Wyden’s comments are simply not supported by the actual substance of the meeting.

We’ve now seen at least a couple of Democratic senators use these meetings as a way of advancing their own political agenda rather than a means of understanding the nominee, which of course is their intended purpose. Anyone with even cursory understanding of what the purpose of these meetings are would know that a Supreme Court nominee is not going to be telegraphing how he would vote in particular situations or condemning particular congressional actions, so it is safe to say you can usually discount a senator’s comments on what was said in a particular meeting.

Jane Roberts Says: “ ‘W’ Does Not Stand for Women”



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Just making sure you’re awake. Different Jane Roberts.

Alternative Impact



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Peter Robinson last night on The Hugh Hewitt Show: “Let the record show that the Hugh Hewitt show not only informed some two million listeners what was happening [about the bogus NARAL ad], but informed Susan Grant herself, the Executive Vice President of CNN News services.”

CNN Is Late to the News



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They’ve agree to air the bogus NARAL ad.

I bet that doesn’t run when all is said and done. Stay tuned.

Re: Who?



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Byron York knows. Here’s some:

Perhaps “activist” is the wrong word to describe Delgaudio. Maybe it’s better to call him a clever but small-time practitioner of the art of political guerrilla theater. A native New Yorker and a veteran of the conservative activist group Young Americans for Freedom, Delgaudio operates from a small office in Falls Church, Virginia. His primary activity is to stage events–comic protests with a political message. Republicans in Washington might remember one a few years ago, when the “Ted Kennedy Swim Team” marched from La Brasserie, one of the Massachusetts senator’s favorite hangouts, to the Capitol. That was Delgaudio. A few months later came the “Barney Frank Housesitting Squad,” a crusade to create a “hooker-free zone” around the gay congressman’s house in case a male prostitute again tried to do business there without Frank’s knowledge. That was Delgaudio, too.

Ted Kennedy Probably Won’t Want to Jump on the Whoever that Is “Story”



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“Public Advocate” has been on his back.

“Conservative Group to Oppose John Roberts”



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Not to be rude, but who? My point being: No big headline there. Sorry, Left.

Factchecking NARAL



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FactCheck.org continues the job that Ed Whelan started here yesterday.

Deja Vu



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Follow the link supplied by Kathryn and you will discover that the New York’s senior Senator really did say that “Arlen Specter sounds exactly like Chuck Schumer”. You will see, too, that Senator Schumer was very glad for Senator Specter.

Flattery Will Get You Nowhere — A Postscript



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Regular Bench Memos readers may safely skip this item; I promise not to make a practice of responding to those who fail to grasp the rudiments of reasoned argument.

Poor befuddled “Armando”. When last we encountered this hapless Daily Kos commenter, the string of negative superlatives that he awarded my essay on the Constitution and abortion demonstrated that he understood nothing about the actual Constitution. Undeterred by failure, Armando has attempted to construct an argument, but sadly has failed again.

Armando’s failings begin with the fact that he obviously does not understand the meaning of the word “neutral,” for, if he did, he would not contest the elementary proposition that Scalia’s position that the Constitution does not speak to the question of abortion—in other words, that it permits the people to enact permissive or protective abortion laws—is substantively neutral.

The fact that a position is neutral does not, of course, have any bearing on whether it is right. But rather than address my actual criticisms of Roe (which I linked to in my original essay but which Armando either didn’t read or didn’t understand), Armando mistakenly attributes to me, with invented quotes even, the proposition that substantive due process is entirely illegitimate in all its manifestations. That proposition may or may not be correct, but my position that Roe is patently wrong does not depend on it. My observation that it is ludicrous to suggest that the drafters of the Fourteenth Amendment (or any other provision of the Constitution) intended to protect abortion—which was then widely criminalized—without saying so was an observation specific to abortion, not part of a broader argument (in Armando’s words) that “only those rights specifically and expressly guaranteed by the founders are Constitutionally protected.”

Armando demonstrates the charm of a naïf in thinking that extensive quotations to the joint opinion in Planned Parenthood v. Casey are persuasive. He would benefit from reading Scalia’s dissent in that case.

Armando’s self-esteem is inversely proportional to his comprehension, as he fantasizes having “skewered” me in this exchange. Fittingly, Armando might find solace in the comforts of blogger Jessica of NARAL Pro-Choice America, who evidently shares her organization’s penchant for delusional lies and credits Armando with giving me an “intellectual smack down.”

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