Bench Memos

NRO’s home for judicial news and analysis.

The Fire Next Time


Though the Left will scuff and kick all the way to the Senate vote, they know that John Roberts is going to be confirmed as an associate justice of the Supreme Court sometime before the first Monday in October. Most liberals are cautiously optimistic that Roberts will be much more like O’Connor than Scalia. For them, it is an encouraging thought. They are glad, too, that President Bush did not really put it to them this time — as they would have felt if the nominee were Edith Jones or Mike Luttig.

Liberals are playing for next time, for the battle over Rehnquist’s successor, for Stevens’s, and on down the line. That is mainly why they are laboring so to define “mainstream” conservatism (read: acceptable to liberals), establish proper questioning etiquette, stake their claim to full disclosure of a nominee’s papers, etc. (There are other reasons, of course, having to do with jockeying for political position and fundraising.)

All this is pretty clear. What’s not so clear is whether conservatives are being as savvy. Yes, conservatives have to parry every thrust against Roberts. Yes, they must keep beating the drums of grassroots support for him. But the outcome is not in doubt. John Roberts is indeed going to be on the bench come October 3rd. Conservatives should also be playing mainly for next time. Even for the time when there is a Democratic president.

Re: Anti-Federalist Society


Thanks, Kathryn, for the link to that silly little letter by Arthur Schlesinger, Jr. about the Federalist Society (for the record, I am not now and never have been a member, nor have I attended any of their functions). He writes that its members display a “shocking ignorance of American history,” and here’s his entire reason why:

“The Federalist Party, the party of Washington, Adams and Hamilton, stood for a strong central government. The Federalist Society stands for negative government and states’ rights. If its members were honest, they would call themselves, in the terms of the 1790’s, the Anti-Federalist Society.”

Well, now. The Federalist Society uses as its logo a silhouette of James Madison, often accompanied by a quotation from one of Madison’s essays in–you guessed it–The Federalist. Clearly the Society’s focus is on the use of the name in association with advocacy of the Constitution as such.

As for the period of the 1790s, by then there were, properly speaking, no such persons as Anti-Federalists, that name being accurate only while the question of the Constitution’s ratification was still pending and for a very brief time thereafter. In the split that took place between Adams and Hamilton on one side and Jefferson and Madison on the other during the 1790s (Washington belonging to neither party), the former claimed the name “Federalists” and the latter the name “Republicans” (though their party was the lineal ancestor of today’s Democrats).

And I don’t know where Schlesinger gets the idea that members of the Federalist Society are uniformly “for negative government and states’ rights.” I have met members who are staunch Hamiltonians on such questions. It’s a pretty diverse crowd, united by little else than a rejection of the doctrine of the “living Constitution.”

Here endeth the lesson, Professor Schlesinger.


Roberts Likes Violence


That’s the latest message from NARAL, in a new commercial.

Eyes Are On


Anti-Federalist Society


Arthur Schlesinger Jr. takes aim at FedSoc in a letter to the NYTimes.


He Sounds Like a Member of a Cult


Just the latest Left ranting:

Ralph G. Neas, president of the liberal People for the American Way, said: “With every day that passes, it becomes more clear that confirming John Roberts would mean replacing Sandra Day O’Connor with someone who viewed her as an obstacle to the ultra-conservative movement, which he had helped lead when he was with the Reagan and first Bush administration.” Neas’s organization has not declared outright opposition to Roberts, he said, but views the nomination with increased concern in light of recent revelations about his role.

Cornyn on Abortion & Roberts


In the Philly Inquirer (whispering in a certain chairman’s ear?):

But if it is improper to demand an answer from Roberts about Roe, it is doubly improper to do what some senators have now said they intend to do: vote against him if he does not vow to uphold it. They have established a
litmus test that the ethical rules forbid Judge Roberts to satisfy, even if he wanted to. Erecting conditions to confirmation that Judge Roberts is ethically forbidden to satisfy is not the sort of fair treatment of him that senators from both political parties have pledged to ensure.

I need a new dictionary . .


. . . when I read Professor David Strauss of the University of Chicago Law School, in today’s Chicago Tribune, write that Justices “Kennedy and O’Connor are solidly conservative, and Stevens and Souter are moderate conservatives.” I’d like to say that this remark looks better in its original context, but it really doesn’t, very much.



Feddie and Me Update


Feddie has a rejoinder to my response to his criticism of my argument about “his” Judge Manion. How much longer such a game of blog-minton can go on, I don’t know, but I’ll stop it on my end with this reply.

First, Feddie elaborates on his objection to the “tenor” of my critique of Manion’s opinion, but all he calls attention to is some fairly direct language on my part about the qualities of Manion’s argument–nothing ad hominem, which is more than I can say about Feddie’s treatment of me, alas. (What do they teach in law schools these days?)

Second, he continues to insist that because Muth was a habeas case, I misrepresented its meaning. If Feddie wants to pretend that Muth did not actually decide anything about the merits of the question whether Lawrence renders incest prohibitions unconstitutional, he is free to live in that alternate universe. What he quotes from Manion’s opinion proves nothing whatever on his side of that issue. Interested readers may see for themselves by downloading the opinion here (PDF file). I will simply stand by my previous, quite unrefuted arguments.

The Best Defense. . .


Here’s an excellent press release from Sen. Kay Bailey Hutchison (R., Tex.). We take it as an encouraging sign, that this time around Republicans aren’t going to allow double standards and personal attacks to impeach their nominee.

Statement of Sen. Kay Bailey Hutchison on Supreme Court Nominee Coverage

WASHINGTON – U.S. Senator Kay Bailey Hutchison (R-TX), Vice Chairman of the Senate Republican Conference, today issued the following statement after the New York Times confirmed it was looking into adoption records of U.S. Supreme Court nominee John Roberts:

“I was appalled to learn that reporters for the New York Times had started an investigation into the adoption records of U.S. Supreme Court nominee John Roberts and his wife. Simple decency dictates that some boundaries should be placed on inquiries into the private lives of public figures by interest groups and the news media.

“In my view, this inquiry by the Times — no matter how preliminary the newspaper now says it was — steps over that boundary line. I note the paper initially claimed this misstep was inadvertent. But it has now been reported that the newspaper consulted its lawyers to determine ways to unseal court adoption records of the Roberts family. In my view, this is reprehensible.

“This is not the first time, in the period since Judge Roberts was nominated by President Bush, in which publications have gone over the line in their coverage. I was disgusted by a half-page Washington Post story two weeks ago deriding the apparel worn by the Roberts children when their father’s nomination was announced at the White House. The Los Angeles Times ran a lengthy story examining private activities of Mrs. Roberts that were largely irrelevant to her husband’s nomination.

“I hope everyone involved in the confirmation process will take a deep breath and consider carefully the fine line between legitimate background inquiries and invasion of privacy in such cases. In the meantime, I will encourage the Congressional Coalition on Adoption, of which I’m a member, to take a position opposing inquiries such as those started by the New York Times.”

Roberts and Civil Rights


Here’s my effort to explain what is really at issue in the Left’s attack on John Roberts’s civil-rights work for the Reagan administration.

No Decency Here


From a Daily Kosser: “I’m tired of smiling in the face of Rovian dirty tricks. That’s my justification for conducting a one man smear campaign on a conservative justice- besides, spreading the rumor that he’s gay wouldn’t piss off anyone I respect, which makes the rumor that much more entertaining.”

Kelo Should Be Reheard


Lessons Learned


Feddie and Me


My article on incest here at NRO has occasioned a response by “Feddie” over at the blog Southern Appeal. Feddie says he doesn’t like the “tenor” of my criticism of Judge Manion, for whom he once clerked. But I vouched explicitly for the competence, honesty, and legal acumen of the good judge in the article itself, so I don’t know where that complaint comes from.

More to the point, Feddie and one of his readers take me to task for not acknowledging in my article that the Muth case was a review of a habeas corpus petition. It is true that I did not burden ordinary readers with a point so arcane, since it was entirely immaterial to the argument I was making. Readers uninterested in the nerdier aspects of federal appellate law can stop reading at this point.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which among other things attempted to rein in federal courts that had run too far in habeas corpus review of state criminal convictions. Judge Manion’s opinion read AEDPA as requiring the circuit court to consider whether the Lawrence ruling was to be applied retroactively, since Allen Muth had been convicted of the crime of incest, and had had all his appeals in Wisconsin courts, before Lawrence was decided in the summer of 2003. Manion and his colleagues held that because Lawrence announced a “new substantive rule” of constitutional law and not merely a new procedural holding that a state court could in good faith have dispensed with beforehand, it was “thus retroactive.” In short, Muth was held to have passed every hurdle in the way of unbridled adjudication on the constitutional merits that Congress legislated in AEDPA.

In the last analysis, this simply means that for Judge Manion, Lawrence was the relevant precedent for deciding Muth’s case, and “the ultimate question then” was “whether Muth is a beneficiary of the rule Lawrence announced,” no more and no less. All the business about this being a habeas case mattered in the end not at all, but was just a lengthy throat-clearing operation. The circuit panel went fully to the constitutional merits on this case, and its opinion on that score was what my article was about.

On another point, I’ll take this opportunity to thank Gerry Bradley for his kind words about the article.

“while a young government lawyer [Roberts] was uneasy, if not hostile, to the idea of lifetime judicial appointments.”


That’s from the AP. Tough man! You’re gonna get in and do us good. (Kathryn rushes to say a little prayer she’s right.)

Red Meat, For Sure


Scrappleface (parody site) Romer headline: “Roberts Took Liberal Portion of Red Meat”



Matthew makes a good point re Lawrence. Rick Santorum warned of its consequences as well.



More Romer stuff in The Corner.


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