Bench Memos

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Making the Cases


Mark Levin’s most recent post (Making the Case) repays careful re-reading.

In the first paragraph he makes the point that, if Senators may legitimately ask about all sorts of things, then they might well be justified in opposing Roberts should he refuse to answer. He suggests that there is a tight symmetry between what they may ask and what he must answer. I don’t think it works quite that way. Mark’s suggestion deserves a fuller response than I can now give, but one possibility that Mark seems not to contemplate is this: Roberts is asked a question which he refuses to answer, and explains why he must refuse to answer it. His explanation goes beyond the grounds for refusing which I (among others on NRO) have criticized as being inadequately justified: a literal reading (if that) of canons of judicial ethics, notions that a prospective justice should say nothing that implies his stance in a pending or future case, etc. This broader explanation is, in fact, an adequate response to the question posed. If plausible (and more so if convincing), Roberts’s response, while not the type of “answer” the Senator sought, would be a bad basis on which to oppose him.

Mark’s second paragraph is right on. Roberts is the nominee, and he will be confirmed. But there is a growing list of reasons why the president’s choice of him now–instead of a Mike Luttig or an Edith Jones or an Emilio Garza –may backfire on conservatives next trip down the advise-and-consent trail. Mark is right, too, that much of what is being said in defense of Roberts also may come back later to haunt conservatives. One way to make the best of it now is to make two (or more) cases–not one. Conservatives should think and write and act as if Luttig or Jones or Garza is before the Senat–as if there were two nominees. Defend Roberts, to be sure, but do so on grounds (insofar as the grounds go beyond the particulars of Roberts’ biography) that imply nothingnegative about the other nominee–Garza, Jones, Luttig–who
we have imaginatively put before the Senate.

Reich Misrepresents Roberts


Robert Reich had a commentary on NPR’s “Marketplace” yesterday discussing federalism and the Roberts nomination. Reich noted that federalism is one of the most important legal issues confronting the Supreme Court. Alas, most of the rest of his commentary was riddled with errors, including the oft-repeated false claim about Roberts’ views of the Endangered Species Act and the commerce clause. I’ve sent a letter to the editor of Marketplace, which is reproduced below:

Robert Reich’s August 10 commentary on Judge John Roberts contained numerous factual inaccuracies. First, and most important, Reich misrepresents Judge Roberts opinion in the Rancho Viejo v. Norton case challenging the scope of the Endangered Species Act under the Constitution’s commerce clause. Judge Roberts did not “argue[] that the federal government didn’t have the power to set national environmental rules that would limit real estate development.” That position was taken by Judge David Sentelle. In the opinion to which Reich refers, Judge Roberts called for the entire U.S. Court of Appeals for the D.C. Circuit to rehear the case en banc. He did not argue that the federal government lacks constitutional authority to regulate environmental matters–in this case, activities threatening the endangered Arroyo Toad. Rather, he noted that the D.C. Circuit’s jurisprudence on the matter was incoherent and in direct conflict with the rationales adopted by the other circuits in addressing the issue. Judge Roberts made explicit that cleaning up this doctrinal confusion was his reason for urging en banc review of the case and noted that such review “would also afford the opportunity to consider alternative grounds for sustaining” the regulation at issue. Even if Roberts had echoed the Sentelle view (and, again, he did not), this would have no impact on federal environmental regulations governing commercial activity, and would not have the impacts on the business community that Reich suggested.

More broadly, the biggest corporate concern with federalism concerns the doctrine of preemption. This is not a question of what the federal government has the power to do. Rather, it concerns how broadly to interpret federal regulatory statutes, and whether such statutes should preempt potentially conflicting state rules. While the Supreme Court often splits on such questions, it rarely does so along traditional ideological lines. Justices Scalia and Breyer are among those most likely to find a federal regulatory statute preempts state law, whereas Justices Stevens and Thomas are those most likely to side with the states on such questions. Thus, it is also inaccurate to claim that it is “prevailing conservative orthodoxy” that the Supreme Court should “refus[e] to require that federal law preempt state law.” Rather, conservatives are split on this question.

Alas, there were even more mistakes in the piece. The Supreme Court did not “strike down” California’s medical marijuana law. Rather, it said that the federal government could prohibit medical use of marijuana even if California sought to legalize it. If anyone “struck down” California’s law, it was Congress, not the Court. In addition, contrary to the introduction’s suggestion these federalism questions do not involve “the same type of federal intervention” as was involved in the Schiavo case. The latter involved congressional intervention into state legal proceedings. The issues Reich discussed involve a) the extent of legislative regulatory power under the commerce clause and b) whether given federal statutes preempt state laws concerning the same subject matter. These are quite different things.

Federalism questions are certainly important to American business, and I am glad to hear them discussed on Marketplace. I hope that Marketplace will correct the record on these points and that future Marketplace reports and commentaries on these issues are more accurate.


Jonathan H. Adler


Hogberg Responds


David Hogberg responses to my comments below. He writes:

Whether Deep Ecology was influential when ESA was instituted is not that relevant. What matters is whether it influences environmentalists’ view of and use of the ESA now, which it clearly does. Also, the point of including the Deep Ecology Foundation was not so much to make them into huge players as to reinforce that these groups buy into Deep Ecology, assuming that the Foundation isn’t going to give to groups that don’t, at least in part, share its vision.

My response: I’m still not sure I’m convinced. Tobacco companies have given money to various libertarian groups over the years, but would it be fair to tar these groups by suggesting they “share” the tobacco industry’s “vision” (thereby implying such groups accept the industry’s view on other matters, such as the link between smoking and disease)? I don’t think so. The most one could say is that tobacco companies like something that libertarian groups do–such as defending an individual’s right to smoke. This position is consistent with the tobacco industry’s “vision,” but that doesn’t mean much. Supporting progressive taxation and public education is “consistent with” Marx’s Communist Manifesto, but few folks who support such policies are Communists or “share” Marx’s ideological vision. So, it may be fair to say that the Foundation for Deep Ecology likes some of what some environmental groups do–but not all that much given the paltry level of their contributions–but I do not think this is a particularly powerful critique, and I maintain it’s not particularly accurate to say these groups “share” the Foundation’s “vision.” In short, I think there are many reasons to attack the ESA–and to attack environmental groups use of the ESA–but I don’t think an alleged connection to deep ecology is it.

Making the Case


Schumer, Specter, and now Boxer, who takes her demand for answers a step further. If Roberts refuses to answer questions of the laundry-list sort Boxer will ask (and some here have endorsed), should he be filibustered or otherwise defeated? It seems a logical response to those who insist on such a process. If there’s no prohibition to answering the questions, as the argument goes, then failing to answer would seem an obstruction of the Senate’s role, no? I also believe Boxer’s reaction underscores Novak’s point about the Left’s approach to this nomination.

I do grow increasingly troubled by the president’s decision not to nominate an originalist with a long record, like the outstanding Michael Luttig. I think it will be more difficult to nominate and confirm such a candidate to a second vacancy. I truly hope I am wrong. Moreover, I am uncomfortable with some of the arguments Republicans senators, Roberts’s handlers, and even some conservatives are making on behalf of Roberts, many of which fall into the category of technical points and process (e.g., his pro bono work in Romer totaled only five hours, etc.). While Roberts may be restrained to speak, we are not. And as a whole, our side doesn’t seem very enthusiastic about explaining the substantive objections to judicial supremacy to the greater public. I dare say that it would have been easier to make the case had a Luttig been nominated.

Re: Counting to Five


I largely agree with Mark’s assessment. I would also not discount another reason for the attacks on Roberts: Groups like PFAW and the Alliance for Justice need a big fight to continue to raise money. One shouldn’t discount the substantial interest that the various interest groups themselves have in a knock-down, drag-out fights over each and every Supreme Court nomination.


Roberts and “Access to Justice”


Walter Olson dissects PFAW’s latest attack on Judge Roberts: that he opposes “access to justice” because he voted to deny legal fees to the Institute for Justice. As Olson notes, Roberts applied settled law in denying IJ’s fee claim. Moreover, if this was such a travesty, why isn’t IJ complaining? Perhaps because this is another manufactured non-issue.

RE: Endangered Roberts


I’d make some qualifications to the Hogberg and Kafkova piece on green opposition to Roberts.

First, it is important to note that many of the environmental objections to Roberts are based on a sloppy interpretation of his Rancho Viejo opinion. Roberts did not so much question whether activity threatening the “hapless toad” could be regulated as he questioned the poor reasoning of the D.C. Circuit’s opinion–reasoning that conflicted with that of other circuits. While I believe there is a basis to question reach of the ESA under the commerce clause, Roberts’s opinion did not directly address the question. I’ve discussed this before on NRO’s Bench Memos (see here and here). Suggesting or implying that the environmental critique is factually accurate (even though misguided) misrepresents Roberts opinion. The simple fact is we do not know his views on the limits of the commerce clause.

Second, I’m not sure about the article’s emphasis on Deep Ecology. For instance, while Deep Ecology folks like the ESA, I’m not sure it’s accurate to say the the ESA is the result of the deep-ecology worldview. Deep Ecology was not yet influential when the ESA was enacted. Moreover, the ESA would not contain exemptions for threats to human life and disease-bearing insects were that the case. More broady, while the Foundation for Deep Ecology is a bad outfit, I don’t think they’re that big a player. One million dollars in grants? That’s nothing. And it’s grants over the last several years to the environmentalist groups are even more paltry. I think it takes more than that to document a link between Deep Ecology and mainstream environmentalists groups. The article is certainly correct that there are many problems with the ESA (including its environmental effects), but I don’t think a purported link to Deep Ecology is the cause.

Re: Counting to Five


But, Mark, what you discuss is not what I’m disputing. Novak says that “Luttig, Jones or Owen going on the court [in place of Rehnquist] would cement a conservative majority.” That’s flatly wrong.

Of course Novak can count to five. But he hasn’t done so here. And his failure to do so is, I think, emblematic of a certain irrational exuberance in some quarters on the right.

Did Pat Leahy Have to Immediately Call NARAL & PFAW & ... to Apologize?



“These outside lobbying groups, whether on the right or the left, have become, for me anyway, basically irrelevant,” Leahy said, adding, “They will probably be offended by that, and I am not saying they shouldn’t do what they do. I just wish they didn’t”

RE: Counting to Five


I don’t take Bob Novak’s piece to mean he can’t count to 5. What he’s saying, which I think has merit, is that Roberts is one of the least offensive “conservatives” the president could have nominated, given his fairly thin record and careful writings. But the attacks on Roberts (from the New York Times hoping to look at sealed adoption records to NARAL’s lies), which are not likely to stop Roberts, are intended to send a message to the White House that if the president nominates a Luttig, who has a 14-year record of sound rulings, worse can be expected. And I don’t think this should be so easily dismissed.

Counting to Five


Bob Novak’s effort to explain the long-term strategy underlying NARAL’s vicious anti-Roberts ad may be correct, but Novak stumbles badly when he asserts that replacing Chief Justice Rehnquist with Michael Luttig, Edith Jones, or Priscilla Owen “would cement a conservative majority.”

Let’s count to five together. For this purpose, I will assume what I think and hope to be true: that Roberts and Luttig/Jones/Owen would be stellar justices. One – Scalia. Two – Thomas. Three – Roberts. Four – Luttig/Jones/Owen. Five — ???

As I have previously explained, Justice Kennedy is the other Justice O’Connor. Indeed, this past year he moved decidedly to her left in major cases. No Court that depends on Kennedy for a fifth vote can be said to have “cement[ed] a conservative majority.”

I do not mean to deny that Kennedy occasionally casts votes that could be classified (in crude political terms) as conservative. But the author of opinions like Roper v. Simmons, Lawrence v. Texas, and Planned Parenthood v. Casey (co-author, more precisely, of the joint opinion in that case) cannot fairly be labeled conservative. The label “moderate conservative” is also inapt–rather like averaging out the highs and lows of a manic depressive and calling him stable.

Realistically, the effort to build a Court that is faithful to the Constitution can be expected to take five to seven years and will require the replacement of Stevens, Kennedy, Souter, Ginsburg, or Breyer. It’s no time now for irrational exuberance.

Lest one feed the scare tactics of the Left, it would also be helpful to make clear that the primary effect of a so-called “conservative majority” would be to leave hotly contested social issues to the political processes for decision, not to entrench a conservative position in the Constitution. No matter what their policy preferences, all Americans who understand what citizenship means should welcome that.

The CNN-NARAL Connection


Accuracy in Media reveals that CNN founder Ted Turner’s connection to NARAL “may explain why” CNN is airing the NARAL television ad that has been roundly denounced by everyone (other than Barbara Boxer) for its false and deliberately misleading content about John Roberts.

AIM says: “The ad, accusing Roberts of endorsing anti-abortion terrorism, is from the group known as NARAL Pro-Choice America, a pro-abortion group. Public information shows that the NARAL Pro-Choice America Foundation received more than $1.4 million in 2003 from Ted Turner’s private foundation. Ted Turner, founder of CNN, is a board member of Time Warner, CNN’s parent company.”

AIM notes that CNN defends the ad as “advocacy advertising” from a “responsible group” that will be “fact checked and debated” on CNN programs.
A few months ago, Judicial Confirmation Network (a “responsible group”) produced an ad on the Democratic filibuster of judicial nominees. CNN’s in-house lawyers questioned and nitpicked the text of JCN’s ad (which was perfectly accurate to begin with, and which ultimately ran as produced on CNN and other cable networks and local broadcast stations). Something tells me that NARAL likely did not face the same critical review.

Ted Turner has not given $1.4 million to JCN.

I think AIM may be onto something.

ABC News, Dem Leaders, and Boxer on NARAL Ad


ABC News reporter Jake Tapper last night said that ABC contacted four “leading abortion-rights groups and the Democratic leaders of the House and Senate today” regarding the outrageous NARAL ad about Judge Roberts. “Not one of them expressed any problem with this misleading ad,” which “accuses Judge Roberts of supporting violent anti-abortion criminals,” according to Tapper’s report.

Tapper noted that the White House released a memo Judge Roberts wrote in 1986 condemning abortion bombers as criminals who should be prosecuted to the full extent of the law.

Tapper interviewed former solicitor general for President Clinton and abortion-rights supporter Walter Dellinger, who agreed the NARAL ad is “not fair” in its characterization of Judge Roberts’ position in the 1991 case at issue.

Meanwhile, Sen. Barbara Boxer spoke at San Francisco’s Golden Gate University, and according to the San Jose Mercury News, she “echoed charges” made in the NARAL ad, stating that “Roberts sided with some of the nation’s most violent anti-choice extremists.”

Democratic leaders in the House and Senate had better reject this NARAL ad and its tactics quickly. For her part, Senator Boxer needs to apologize, rescind her position, and use her influence with her friends over at NARAL to get them to pull the ad.

I Expect Some, But Minimal, Grumbling About This Today


More from that WashTimes piece:

An examination by The Washington Times of documents from that period reveal a memo written on Dec. 14, 1981, to fellow Justice underling and future Clinton impeachment investigator Kenneth W. Starr.

Judge Roberts suggested that the department “keep as low a profile as possible” concerning a book titled “A Blueprint for Judicial Reform” put out by the conservative Free Congress Foundation, an organization founded in 1974 by Paul Weyrich, who remains one of the leading conservative intellectuals.

The liberal-leaning American Bar Association (ABA) had inquired about Mr. Smith’s opinions on some of the ideas in Mr. Weyrich’s book.

Judge Roberts did not paint a flattering portrait of Mr. Weyrich or his ideas, even misspelling the man’s name.

“I suggest we keep as low a profile on this as possible,” Judge Roberts wrote. “Weyerich is of course no friend of ours, but it won’t help to stir up the influential contributors to his volume, and any comment by the AG will simply highlight the fact that we have yet to take a position” on some hot-button issues.

Judge Roberts recommended having a Justice Department spokesman return the ABA’s phone call and “acknowledge that the AG has met with Weyerich and received a copy of his book,” but hasn’t had the time to read it and “therefore cannot comment on its substance.”

Docmented Proof Judge Roberts Is Well-Read



To prepare Mr. Smith for a speech before conservative groups, Judge Roberts said in a Feb. 16, 1982, memo that he reviewed all the issues of National Review, Conservative Digest and Human Events since Mr. Reagan’s inauguration — as well as policy papers put out by the Heritage Foundation “and sundry other tracts.”

Linda Greenhouse on NARAL Ad


In the New York Times piece on the NARAL ad today, it takes Linda Greenhouse until the eleventh paragraph to use the F-word– says it is “false.” I humbly suggest that’s more top material.

The Gray Lady also, by the way, conveniently provides the video of the commerical on their homepage as a news video item.

Roberts on the Role of Judges — Judicial Independence


According to this report, Justice Breyer told an ABA audience yesterday that “rulings on difficult subjects like gay rights and the death penalty have left courts vulnerable to political attacks that are threatening judicial independence.” (That’s the language of the article, not a direct quote from Breyer.)

A very different and much wiser understanding of the real threat to judicial independence was provided to the ABA in 1982, in an ABA Journal essay that John Roberts drafted for Attorney General William French Smith: “The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and the bounds of their expertise by engaging in policy making committed to the elected branches or the states.”

The whole question of “judicial independence” requires, of course, an answer to the question “independent of what?” Breyer and five of his colleagues seem to think that Supreme Court justices are independent of the Constitution and of the obligation to construe it in a legitimate and principled way. For them, judicial independence means unfettered judicial supremacy.

A proper understanding, I think, is that judges should be independent of interference (political or otherwise) in deciding how to apply the law in particular cases. That does not mean that courts are not obligated to apply the law—even legislation enacted to affect a single ongoing case (see the Supreme Court’s unanimous 1992 opinion in Robertson v. Seattle Audubon Society). Nor, of course, does it mean that they should be immune from vigorous criticism. In Chief Justice Stone’s words (as quoted in AG Smith’s essay): “I have no patience with the complaint that criticism of judicial action involves any lack of respect for the courts. When the courts deal, as ours do, with great public questions, the only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their action and fearless comment upon it.”



CNN is still running the bogus NARAL ad. During The Situation Room a little while ago Wolf Blitzer lamely defending their decision and added that Fox is running the ads too.

Nope on the Fox thing. A Fox spokesman tells NRO’s Media Blog: “[NARAL] actually never approached us for a buy. You’ll see a correction in the Washington Post tomorrow.”

Messing with Moses!


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


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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