Bench Memos

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LATimes 4 Roberts


I’d expect a lot more of this in the wake of the NARAL debacle. Though I wonder if it (thirst for blood) turns around again come closer to hearing date.

“John Roberts is either a mad bomber of abortion clinics or a homo-tastic friend of the sodomite.”


The Judge Report,” from The Daily Show.


The Questions Continue


I, too, have been AWOL, although I am happy to rejoin the fray now that I know that Ramesh supports my nomination to the Supreme Court. Now if I can just get him elected to the Senate, I can be assured of at least one vote. I don’t have adequate time to address all the arguments that have been raised, but let me offer a few observations. First, as to Andy’s piece Friday, I think that for the analogy of privileges to align properly with the ability—nay duty—of a nominee not to answer questions based upon the code of conduct, you have to compare privileges which are likewise based in a code of conduct (e.g., doctor-patient or lawyer-client). The other privileges (such as Fifth Amendment right against self-incrimination) may carry negative incentives, but there is not necessarily an external obligation carrying with it the possibility of sanctions outside of the proceeding itself. That is what Roberts must be careful about: the code and the recusal statutes operate independently of his desire to be forthcoming about issues which are likely to come before the court. Andy is right in saying that the Senators may ask any inappropriate questions they like. Roberts may likewise choose to answer, but if he does so, it may come at a price.

Second, Gerry and others have spoken about the need to ask questions about specific cases—presumably specific cases which are still active issues likely to come before the court—because they believe that such questions must be asked for Senators to exercise their art. I obligations of advice and consent. This view finds little support in history. As Gleaves Whitney pointed out previously on NRO, the modern spectacle of judiciary committee grillings is just that—modern. According to Stephen Carter, the current system of questioning did not arise until after Brown v. Board of Education, and most judges didn’t even appear before the Senate prior to 1925. I suspect that my interlocutors will argue that Congress had the power even back in the day, but didn’t use it. But that is not their argument as I understand it: I understand their argument to be not that they have the ability to ask these questions, but the constitutional necessity to do so in order to fulfill their duty under art. I. This is an incredible statement. Is it more necessary now than after Plessy? More necessary than after Dred Scott? Controversial issues did not come before the Court for the first time in the 70s.

This leads to what I presume will be the next response: it is worse now because the Supreme Court has become politicized. Ah, it is always a tad peculiar to see conservatives use the “times have changed” argument. While I am sympathetic to the view that we on the Right need not carry out unilateral disarmament—lamenting the politicization of the bench but doing nothing to stop more partisans from joining its ranks—I do not see how failing to ask about specific cases forces us to accept the politicization of the Court. To the contrary, no one has yet explained to me why it is that Senators could not ask questions about judicial philosophy and methodology which would be far more useful in determining how the judge approaches the Constitution than merely asking whether he agrees with a particular case which is likely to come before the court again. For example, Roe is used by both sides of the aisle not merely for the principle of the case itself but as a proxy for how the nominee views the Constitution—that is, do they believe in a living or originalist/textualist Constitution; do they believe in enforceable, extra-textual rights, etc. However asking about agreement or disagreement with a particular case can be deceptive. You could be conservative, and still believe, for example, that the federal partial-birth abortion statute is unconstitutional. And yet, this does not tell you whether the person approves or disapproves of the privacy rights found in Roe. Accordingly, instead of using a proxy, why not ask the questions directly, as I suggested here. In this way, you can see whether the judge views the Court as another political or legislative body, which is, I would hope, the real concern.

Finally, I believe that Mark is right when he suggested that the code of conduct is based in the Constitution. That is why I began this post by suggesting that Roberts has a duty not to answer questions that violate the code—that is, questions which infringe upon the independence and insularity of the judiciary as found in art. III. Yes, this sets up a constitutional clash between art. I and art. III (albeit a non-justiciable political question). But in this clash there is a long tradition of judges not answering questions about pending cases based on their art. III insularity, while the tradition of grilling nominees with questions about specific cases has a far shorter, and, I think Judge Bork would agree, less respectable pedigree.

Thanks for the Signal, Man!


From the WashPost Style section:

As they waited for a red light to change at First and C streets NE, a few Capitol Hill workers leaving their offices greeted the nominee. “Good luck,” said one man, shaking Roberts’s hand.

There was no traffic in sight, which made the red light seem to go on forever.

Roberts decided he had one last comment.

“Notice,” he joked, “I’m obeying the law.”

RE: Playboy Non-Story


So, Jon, what you’re saying is that I didn’t have to write this Friday to take the heat off Judge Roberts?

Last time I listen to Karl…


Liberalism’s Constitution


Don’t miss George Will’s column today, especially his recounting of “contemporary liberalism’s narrative of American constitutional history,” in which the right to abortion supplants all other things. Why this should be so is more of a question for social pathologists than for commentators on constitutional law, but Will is surely right that it is so.

The Playboy Non-Story


According to Human Events, some conservatives are “alarmed” that John Roberts assisted other attorneys in his firm prepare to represent Playboy in the Supreme Court. Apparently his willingness to participate in a moot court is “very troubling” to some conservatives. Eugene Delgaudio of Public Advocate says conservatives should be “outraged.” Please. Like Roberts’ minor work in Romer v. Evans, and a host of other cases in which he helped clients push “liberal” positions, this is a non-issue, and the complaints are completely unfounded. Roberts was the premier appellate lawyer at his firm. Barring conflicts of interest, he had an obligation to assist his colleagues in high profile cases. No one claims he supported frivolous legal arguments or was seeking to advance a particular policy agenda, and it is a testament to Roberts’ legal abilities that he his assistance was so sought after.

These sorts of complaints have become commonplace in judicial and executive confirmation fights where advocates on each side have made a bad habit of imputing a unpopular clients’ views to their attorneys. Indeed, some environmentalists get particularly exorcised with nominees who have ever represented a corporation. One of the basic underlying values of our legal system is that all parties merit zealous representation, and it is improper to presume that he supported the position of those he helped represent. Indeed, the complaint here is as wrongheaded as NARAL’s charge Roberts was “supporting” abortion clinic bombers. Whomever the nominee, these sorts of attacks have no place in the confirmation debate.

If John Roberts had Wanted. . .


. . . a quiet life when he graduated from Harvard Law years ago, he could have made this career choice. (Was listening to the CD and couldn’t resist this link. A bit of whimsy as the weekend arrives. . .)

Roberts on the Role of Judges — Judicial Restraint II


In addition to the ABA Journal draft, another magazine article that John Roberts drafted for the attorney general displays his deep and longstanding commitment to principles of judicial restraint. This draft, from February 1982, discusses the sorry history of so-called substantive due process, from the Dred Scott case through the Lochner era. The “difficulty” with those cases, Roberts soundly explained,

“arose from the fact that the Court took it upon itself to form national policy under the guise of the guarantee of ‘due process,’ rather than deferring to the legislature on the broad policy questions at issue. Recent years have witnessed a revival of an approach to judicial review reminiscent of that embodied in Lochner and Dred Scott. As in those decisions so too today phrases such as ‘due process’ and ‘equal protection’ are held by judges to include policy choices which often block the considered judgment of those constitutionally empowered to make or implement policy decisions.”
How, Roberts’s draft asks, should judges deal with the perplexing challenge of applying these phrases to specific cases? His answer is a classic statement of principles of judicial restraint:
“The intent of the Framers as revealed in the debates on the Council of Revision and the historic lessons of Dred Scott and Lochner require that Congress and the states be given the widest possible scope for policy decisions, and that courts intervene under the potent yet indeterminate bases of due process or equal protection only when clearly necessary. The basic reasons for avoiding judicial policymaking are fairly clear.… Judicial policymaking is inconsistent with our democratic heritage … [and] is inevitably inadequate and imperfect.”
Roberts explains that the view supportive of judicial policymaking “ignores the conscious decision of the Framers that judges not have a general policy role” and “assigns judges an impossible task.” As in his ABA Journal draft, he specifically criticizes “fundamental rights” and “suspect classes” review as “judicially manufactured constructs” that are “quintessentially legislative” in nature. “The various ‘fundamental rights’ which modern courts have enshrined are no more discernable from the words of the Constitution than the ‘liberty of contract’ which was zealously protected by courts in the Lochner era.” Such “judicial policymaking” is “contrary to the constitutional role of the courts.”

President Bush promised to appoint justices who will interpret the law and not legislate from the bench. Judge Roberts clearly understands the proper role of a judge. All Americans who understand what it means to be a citizen should embrace his understanding.

Roberts on the Role of Judges — Judicial Restraint


Documents from John Roberts’s service in the Reagan administration show him to be a committed proponent of judicial restraint. Roberts’s initial November 1981 draft of the attorney general’s January 1982 article in the ABA Journal reflects his broader outlook. (I’m focusing for now on the initial draft because that is most clearly Roberts’s own work product.)

That draft essay contains virtually the statement on judicial independence that I discussed here. In Roberts’s words: “The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and engaging in policymaking properly committed to the elected branches or the states.” He adds: “By urging courts to observe appropriate self-restraint and avoid intrusions into the domain of the other branches, we will be taking significant steps to secure their independence.” In short, criticism of judicial activism serves the cause of genuine judicial independence.

Roberts then addresses three ways courts can better practice judicial restraint: “observe strictly the requirements of justiciability, avoid particular devices for testing the constitutionality of laws which permit ready intrusion into the domain of the legislature, and exercise restraint in the formulation of equitable decrees.” Let’s focus on the second way. Here’s an extended passage from Roberts’s draft:

“A second means by which courts arrogate to themselves functions reserved to the legislative branch or the states is through so-called ‘fundamental rights’ and ’suspect classes’ analyses, both of which invite broad judicial scrutiny of the essentially legislative task of classification. Federal courts must, of course, exercise their function of determining the constitutionality of enactments when the issue is properly presented in litigation. . . . [But] [c]ourts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials.

“Two devices which invite courts to do just that are ‘fundamental rights’ and ’suspect classes’ review. It is of course difficult to criticize ‘fundamental rights’ in the abstract. All of us, for example, may heartily endorse a ‘right to privacy’. That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label ‘fundamental’ and then resort to is as, in the words of one of Justice Black’s dissents [in Griswold v. Connecticut], ‘a loose, flexible, uncontrolled standard for holding laws unconstitutional.’ . . .

“Analysis based on ’suspect classes’ presents many of the same problems. Classifications based on race are suspect and do merit careful scrutiny, in light of the historic purpose of the Fourteenth Amendment. Extension of heightened scrutiny to other ‘insular and discrete’ minorities, however, represents an unjustified intrusion into legislative affairs.”

Justice Scalia and Justice Thomas couldn’t have said it any better. And although these are statements from two dozen years ago, it is my experience that once someone attains this clarity of understanding, he will not thereafter lose it.

The Dionne Bargain


I’ve been AWOL from the latest round of debate over senators’ questioning of Supreme Court nominees, but I will say that I am fundamentally sympathetic to the views expressed by Gerry Bradley here, and I doubt I can agree with any gloss on the laws and rules governing judicial ethics that would bar a nominee from answering questions about the reasoning in past decisions of the Court. Today Andy McCarthy weighs in with a thoughtful, helpful perspective derived from his years as a federal prosecutor.

Now, though, I want to direct my attention to the bargain offered by E.J. Dionne in his column in today’s Washington Post. Dionne rightly denounces the now-pulled NARAL ad, but then seems to want to use it as leverage. His proposed Civility Compact puts all the onus on Roberts and the Bush administration to be forthcoming, with answers and with documents respectively, and it appears that the only thing to be given up on the Left is . . that they stop telling outrageous lies about Roberts!

Dionne almost has me when he writes this, with which I agree if it stands alone:

Precisely because he has such a thin record of public writings, Roberts himself has an obligation to be forthcoming in answering questions about his views, especially on cases that have already been decided. The debate over Roberts should be civil. But you cannot have a civil debate on “the issues” if Roberts’s supporters insist that “the issues” cannot be discussed and that he is perfectly free to decline any exploration of his outlook on important matters that will face him as a justice.
But this is after he’s already called for the Bush administration to disgorge itself of every scrap of paper related to Roberts’s career as deputy solicitor general during the Bush 41 years. For reasons given two weeks ago by NR’s editors, the administration has already handed over too much from Roberts’s earlier career at Justice and the Reagan White House. This makes it politically more difficult to resist further demands, but they should be resisted nonetheless.

As for Dionne, when he asks for “Any takers?” on his proposed bargain, I say no, thanks. Ask Roberts questions, and I hope he answers them as fully as reason and his conscience permit. But no more documents, Mr. Dionne, and they shouldn’t have to be forked over as the price for honesty from Roberts’s adversaries.

Another NYTimes Correction


As NR’s Media Blog has noted, the New York Times issues another correction about John Roberts today–this one about the NARAL ad:

“A front-page article yesterday about the furor caused by a television advertisement criticizing Judge John G. Roberts Jr. for an argument he made before the Supreme Court in an abortion-related case included an erroneous report from the ad’s sponsor, Naral Pro-Choice America, about the involvement of one cable network. While Naral bought time on CNN and on stations in Maine and Rhode Island, it did not book the ad on the Fox News Channel. (A spokesman said Naral had intended to advertise on Fox but had never struck a deal–a decision of which he was unaware when he issued the list to the press.)

CNN’s Standards


Last night, after Jeff Greenfield reported on how and many folks on the left attacked NARAL’s sleazy ad, Tucker Anderson tried to explain why CNN was still airing the ad, muttering something about how CNN believes in exposing people to all sides of issues and noting that it is also running pro-Roberts ads. Yep, CNN is “Fair and Balanced”–they air both sides–that is both true and false political advertisements.

Whelan, Bench Memos & NARAL


For the record (from The Corner).

The Abortion-Clinic Stuff May Not Be Dying Though


WASHINGTON – (KRT) – In 1991 John Roberts was a young federal official confronted with a growing crisis in Wichita, Kan.

Anti-abortion protesters in Wichita were attempting to shut down the city’s abortion clinics.

The “Summer of Mercy” protests heightened community tensions, so much so that a federal judge in Wichita ordered U.S. Marshals to keep the clinic open.

Roberts, representing the administration of President George H.W. Bush, had a choice: let the judge’s ruling stand, or fight it. He chose to intervene.

Fourteen years later, that challenge of a court decision is receiving new scrutiny as Roberts next month faces confirmation hearings for the U.S. Supreme Court.

With activist groups on the right and left scrutinizing his every past action, the Summer of Mercy and Roberts’ role in it is gaining new national interest.

Supporters say his decision shows respect for the law. Critics charge him with putting ideology over public safety.

“John Roberts challenged rather than protected the notion of women’s safety,” said spokesman Ted Miller of NARAL Pro-Choice America, an abortion-rights group opposed to Roberts’ nomination. “He had the option to remain neutral, but instead he chose to put the government on the side of violent protesters.”

In August 1991, Judge Patrick Kelly had seen enough.

More than 2,000 arrests had been made since Operation Rescue started its protests in July. Protesters had broken an agreement with Kelly not to block clinic entrances. Fighting with police, throwing themselves in front of cars, the demonstrators were putting a strain on local police.

So when clinic owner George Tiller and others petitioned for protection, Kelly ordered in federal marshals.

Waiting for Corrections


The NYT issued corrections regarding their misrepresentation of Judge Roberts’s Rancho Viejo decision. It’s time for “Marketplace” and Robert Reich to follow suit.

The “Smear” Word Again


Shows up in a liberal Boston Globe column re: NARAL. Though this is how Scot Lehigh wraps up: That’s something partisans on both sides too often excuse in members of their own party or in their ideological allies. But just as it was wrong for Swift Boat Veterans for Truth to wage a campaign of character assassination against Democratic nominee John Kerry last year, so too it is wrong for NARAL to smear John Roberts as someone who somehow supports, condones, or excuses violent extremists.

Dangerous Roberts


Kate Michelman:

By all indications Roberts might vote to overrule Roe. To imperil the lives and rights of millions of women, he would not have to. Roberts need only vote like a shadow of the conservative he’s always claimed to be.

Jonathan Chait on NARAL & the Left


In the LATimes:

Roberts is widely regarded as extremely intelligent. Unlike conservative ideologues such as Antonin Scalia or Clarence Thomas, he prefers not to rewrite legal doctrine with sweeping new decisions. He is not the sort of nominee who you’d think should start a culture war.

Unfortunately, somebody forgot to tell that to NARAL Pro-Choice America, which has launched a new television ad assailing Roberts. The ad itself is highly misleading. It berates Roberts for arguing, during his tenure in George H.W. Bush’s Justice Department, that the 1871 Ku Klux Klan Act could not be used to stop antiabortion protesters. NARAL’s ad interprets this argument to mean that Roberts would be “a justice whose ideology leads him to excuse violence against other Americans.”

Read what he has to say about the Right though. too. Hint: He brings up “disproportionately poor, uneducated, and easy to command.”



Wow. The Washington Post is pretty tough on NARAL in a Friday editorial. As it should be. Still, I didn’t expect it.


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