Bench Memos

NRO’s home for judicial news and analysis.

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


Open Letter to Senator Leahy


My Ethics and Public Policy Center colleague George Weigel offers some advice to Senator Leahy on next week’s confirmation hearing. Here’s an excerpt:

As one Catholic to another, permit me to suggest that you also have an opportunity, indeed a responsibility, to insure that Catholic-bashing, overt or subtle, does not spill over into the Judiciary Committee’s deliberations from the activists’ battle-of-the-blogs and the food fights on cable TV.

What’s Next II


The syntax of Bradford Berenson’s post “What Next?” makes it hazardous to attribute any particular one of the views he recounts to him. So let me say that one of the positions Brad articulates is worth emphasizing. It is the curious situation–which happens to be ours–of having so many solidly conservative jurists who register high on the “identity politics” scale. Just start with women from Texas (Owen, Jones) and work from there until you get to Janice Rogers Brown in California. These possible nominees all have more overt philosophical commitments on the social issues than does John Roberts (which is not to say that Roberts won’t turn out to be as conservative as they; we’ll have to wait and see). And here I disagree with at least one voice in “What’s Next?”. The Roberts nomination represents an affirmation of genuine merit and quality, to be sure. But anyone can see its obvious political appeal, too, and it lies in his philosophical modesty. Roberts is and always was very, very confirmable.
And so we have this funny situation again: encouraging a Republican president to be politically brave precisely by nominating a Latino or a woman or a woman of color–so long as it one of the many who have demonstrated commitments on some (or all) the key social issues.

Whod’a thunk it.


What Next?


The past is prologue. Amidst the speculation about the President’s next choice for the court, it is important to remember that the President is now making the same decision he made just six weeks ago: whom to appoint to replace Justice O’Connor. Some people believe the President felt comfortable appointing John Roberts, a white male, only because he felt certain he would have another opportunity to make a “diverse” appointment. I’m not aware of any evidence for this view, other than the President’s own sincere commitment to diversity on the federal bench, which in fairness cannot be discounted.

But there is another interpretation, cherished by the President’s conservative admirers. It is that, as with other big decisions of his presidency, President Bush was able to keep his eye resolutely on the ball and focus on the big, the fundamental, the important things, determinedly refusing to take stock of second and third-order considerations. These observers see the Roberts nomination as a reminder of the sometimes forgotten power of quality and old-fashioned merit. Roberts’ character, intellect, and obvious qualification as one of the finest legal minds in the country have effectively trumped partisan politics, petty politics, and identity politics. The grousing about his race and gender in the wake of his appointment was mild and short-lived. It was at best a footnote, completely overwhelmed by praise for his abilities and qualifications. There is, it turns out, safety in quality.

The President is also keenly aware that his Supreme Court picks are an important part of his governance of the nation and his legacy to it after he leaves office. He understands what is at stake and deeply appreciates the importance of restoring power to the political branches by appointing judges who appreciate the passive virtues. Thus, in addition to neutral merit and qualification, the Roberts nomination can also be seen as a triumph of the President’s ability to put his governing philosophy ahead of his short-term political interests. (Lo and behold, it turns out that, in this area, too, good policy is good politics, and the perceived sacrifice of short-term political interests was revealed as illusory.)

If this interpretation is correct — that the President made his decision to appoint Justice O’Connor’s replacement based solely on merit and judicial philosophy in the long-term best interests of the nation — then it seems reasonable to suppose that he will make the same decision the same way the second time around. Nothing says this will point him to another white male, as the short list of the country’s best available conservatives surely includes women and minorities, but it means the white males won’t be categorically excluded from consideration either.

If that’s so, here are a couple of new names to keep your eye on as dark horse candidates if the President tries to replicate the Roberts model: Steve Colloton, a judge on the Eighth Circuit, and Jeff Sutton, a Judge on the Sixth Circuit. Both are brilliant former Supreme Court clerks; both have long records of public service, Colloton primarily as a prosecutor and Sutton primarily as a Supreme Court and appellate advocate; both are widely respected, right to left, with plenty of supporters among Democrats of good faith; both are supported by influential home-state Republican Senators on the Judiciary Committee; both are young men in their mid-40s; and both were originally appointed by this President and thus are seen as part of the Bush judicial “family.” Some controversy attended Judge Sutton’s confirmation, because he is closely identified based on his work as an advocate with the Supreme Court’s new federalism jurisprudence. Colloton sailed to confirmation with no problems at all. Whether their time is now or in a future Republican administration, they’re worth adding to the evolving lists of credible candidates.

RE: Mel Martinez


He is, of course, a trial lawyer. I can imagine the Manhattan Institute op-eds coming out of that nomination?

“Hurricane Roberts”


Kennedy on Roberts & Katrina


In today’s Washington Post:

“What the American people have seen is this incredible disparity in which those people who had cars and money got out and those people who were impoverished died,” Sen. Edward M. Kennedy (D-Mass.) said in an interview . The question for Roberts, he said, is whether he stands for “a fairer, more just nation” or for “narrow, stingy interpretations of the law to frustrate progress.”

“divided and confused”


Fred Barnes’s spot-on description of Dems.

“The right wants a woman”


I feel like The Hill has written me off.

Mel Martinez for SCOTUS


John Cornyn is the senator who gets the press mentions, but this might not be completely crazy.

The Chairman, By the Way


Grabbed Judge Roberts to guarantee Specter some extra airtime Tuesday, bringing up the idea of Roe as a “superprecedent.” Roberts isn’t talking to the press, so we don’t really know if the nominee laughed.

Thank You, Chairman, for Agreeing with the Quota-on-the-Court Folks



“It is desirable to have a balance on the court. And two women, I think, are a minimum,” Specter said. “My preference would be to see that kind of diversity maintained, but I don’t believe anybody ought to tie the president’s hands.”
This, though, comes as no surprise.

It’s Not Just Women Who Should Be Freaked By John Roberts, You See


But women of color, more narrowly, I’m told this morning by Another white male, he is! Figures, nominated by that evil white man in the White House who caused the hurricane just to hurt blacks.

(That’s the hurricane John Roberts played no small role in.)

“But did anyone ever seriously mention a woman of color for the job?”

No. No. I know what you’re thinking.

“Controversial ideologue Janice Rogers Brown was floated by some extreme conservatives, but she was never a real contender given that her nomination to the Court of Appeals set off a national fight over the filibuster–a time-honored means of challenging the majority party through extended debate–and almost shut-down the U.S. Senate.”

You extremist! If you’re a white male just write yourself out any possibility of being named to the Court. I think I may be talking to you Mike Luttig. Yeah, you, too McConnell. Near everybody’s Girl Crazy now.

But, as my sistas note, Janice Rogers Brown doesn’t count. As a woman or as a “woman of color,” is my translation.

Lack of Thought at Think Progress


There’s an old saying that when a lawyer has the law on his side, he should pound the law. When he has the facts on his side, he should pound the facts. But when neither law or facts are on his side, the lawyer should pound the attorney on other side. Think Progress’ Judd Legum has this routine down pat, as he demonstrates in his string of ad hominem attacks on my colleague Ronald Rotunda. Today Rotunda had an op-ed in the Washington Post defending Judge Roberts against phony charges that he violated judicial ethics when he failed to recuse himself in the Hamdan case. Rather than address the merits of Rotunda’s argument, Legum attacks Rotunda’s ethics (as he has before). Legum makes several errors in the process of impugning the integrity of a well-respected scholar, yet fails to offer any substantive critique of Rotunda’s views. First, he glosses over the byline to Rotunda’s article, which makes clear that, contrary to Legum’s charge, he did not work on “the exact subject of the case in controversy.” Second, while quoting a Legal Times story on Rotunda’s alleged conflict, Legum fails to note Rotunda’s response, published in the September 5 Legal Times in which he makes clear that a WSJ report he worked on military commissions was wrong: “I’m proud that I was able to work for my country. While I was at the DOD, I was not assigned to the Hamdan case. I don’t know if the DOD has any official policy regarding judicial recusal, but I know I didn’t work on that, either.” In other words, the source of the alleged conflict is simply not there. Over the course of several posts seeking to impugn Rotunda’s integrity, Legum has yet to address any of the substantive points made in Rotunda’s op-ed or his 15-page opinion letter to Senator Arlen Specter on the recusal question. As Rotunda wrote the Legal Times ” where I worked can’t affect the untidy little fact that my opinion merely quoted the case law. That exists no matter where I used to work, and it undermines any charge that Judge Roberts violated the federal recusal statute.”

Don’t Forget about Judge Owen


It strikes me that there is, in addition to Judge Edith Jones, (at least) one more possible nominee who not only responds to the call in some corners for another woman on the Court, but also appears to be a solid choice on the merits, both in terms of credentials and philosophy: Judge Priscilla Owen.
That said, I am inclined to agree with what other Bench Memos bloggers have been saying, namely, that a President who campaigned on judges, and who got votes by praising Justices Scalia and Thomas, should not (and, in my view, will
not) give in to silly calls for “moderates” or “balance-preservers.”

WSJ on Judge Luttig


Somehow I retain the capacity to be shocked by lazy and sloppy journalistic assertions. Take this example from today’s Wall Street Journal story (by Jeanne Cummings and Jess Bravin) on the Supreme Court vacancies: Judge Luttig of the Fourth Circuit, the story nakedly asserts, “has been outspoken against abortion rights.”

The only problem with this assertion is that no evidence exists to support it. Judge Luttig has issued rulings for both sides in the abortion battle and, in so doing, has always carefully limited himself to the judicial role. Various pro-abortion groups have been “outspoken against” Judge Luttig for upholding certain democratically enacted regulations of abortion, but it is simply not accurate or fair to assert that he has been “outspoken against abortion rights.”

As I have previously discussed regarding Judge Roberts, there is zero reason to believe that a Justice Luttig would adopt a “pro-life” reading of the Constitution, under which permissive abortion laws would be unconstitutional.

Has A Disaster Ever Worked So Easily into Talking Points?


An e-mail just out from the Feminist Majority:

Dear Feminist Activists

Roberts’ nomination to Chief Justice of the Supreme Court is the latest outrage of the Bush Administration and we must vigorously oppose it. URGENT ACTION NEEDED

Step 1: Please give an emergency contribution to the Feminist Majority to Save the Court for Women’s Lives.

Step 2: Email your Senators to urge them to oppose Roberts for Chief Justice.

Step 3: Learn how you can volunteer to Stop Roberts.

Our opposition to Judge Roberts has only grown. As an associate justice it was serious enough that Roberts would be a solid vote against women’s right and civil rights. As Chief Justice, Roberts would be in the nation’s top judicial leadership position to roll backwards the legal gains made by women and people of color over the past 40 years. His record indicates he would greatly weaken anti-discrimination statutes in employment and education; ignore wage discrimination; gut Title IX; water down voting rights; cut back affirmative action; eliminate the right to privacy (which he has mocked); and reverse Roe v. Wade.

As the Gulf Coast and New Orleans tragedy reveals, our nation still has a deep race and class divide. We must have a federal judiciary that will not unravel the legal gains and guarantees decades of civil rights and women’s rights struggles have produced.

We again call on President Bush to choose a moderate woman jurist to fill Sandra Day O’Connor’s historic seat. He did not win a mandate to appoint right-wing judges who would reverse women’s progress. Americans deserve to know who the President is appointing for both vacancies before a vote occurs.

Finally, the Bush Administration must release documents and papers from Roberts’ years as deputy solicitor general. Women have a right to know where this nominee stands. The stakes for a generation of women are too high for the Senate to confirm a stealth nominee.

We need your help more than ever. The nation is rightly focused on the Hurricane Katrina tragedy, what everyone can do to help the hurricane survivors, and the shockingly botched federal rescue and relief efforts. We also must work hard to prevent a right-wing take over of the Supreme Court. With two vacancies and a Republican-dominated Senate, the fight is extremely hard.

Please, at this critical moment in history, consider making an emergency contribution to the Feminist Majority. We will immediately put your contribution toward organizing grassroots efforts against Roberts, and preparing for the potential fight over Bush’s nominee to fill Justice O’Connor’s seat.

Women, who have the most to lose, must be the strongest voice in the Supreme Court fight. The stakes are too high to sit on the sidelines.

Take action today – email your Senators to urge them to vote NO on Roberts for Chief Justice.

And, sign up to volunteer to Stop Roberts. We especially need people willing to participate in demonstrations against Roberts in Washington, DC during his hearings. But we will also provide ample opportunities to take action online and in your own communities.

For Women’s Lives,

Eleanor Smeal
Feminist Majority

No Chief Justice Scalia


I’ve been surprised that some folks seem to think that Justice Scalia might be the least bit disappointed at not being named Chief Justice. Although I claim no inside knowledge, it seems to me highly implausible that Scalia would have had any particular interest in being Chief Justice. As a matter of duty, he would have accepted the position if asked, but he would not have welcomed the administrative and other burdens that being Chief entails (not to mention the bother of another confirmation hearing). The idea that Scalia has been engaging in some sort of “charm offensive” to position himself to be named Chief is simply silly.

Those who are regretful on Scalia’s behalf should also have in mind that, as a matter of crude life-expectancy statistics, Roberts can be expected to serve as Chief for about two decades longer than Scalia could have (since he is nearly two decades younger).


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