Bench Memos

NRO’s home for judicial news and analysis.

The Abortion Questions


Ed is correct that the USA Today account of General Gonzales’s statements is garbled and self-contradictory. Ed has also done a beautiful job explicating the “Ginsburg standard” that governs this whole matter.

In short, some Senate Judiciary Committee members now say they will demand answers from Judge Roberts on two kinds of abortion questions: personal views and legal analysis.

“Personal view” questions: Judge Roberts’s personal views on abortion are utterly irrelevant to how he would rule on legal questions before the United States Supreme Court. Other nominees have declined to give their personal views, and Judge Roberts should too, lest anyone think such views would influence his future rulings. One thing we know about him is that he believes in applying the law impartially and fairly. Part of what it means to be a judicial conservative–as opposed to a liberal–is that judicial conservatives do not impose their own policy preferences from the bench.

Judge Roberts has already testified under oath before the Judiciary Committee two years ago that nothing in his personal views would prevent him from impartially and fairly adjudicating cases involving abortion. Senators can ask him that question again if they want, but we already know the answer.

“Legal analysis” questions: With respect to legal issues such as whether Roe v. Wade was correctly decided, Judge Roberts must refuse to answer questions from Committee members. As clearly stated by Sen. Joe Biden and then- Supreme Court nominee Ruth Bader Ginsburg in her 1993 Judiciary Committee hearings, to answer such questions on issues that will come before the Court in the future undermines the independence of the Court and would violate canons of judicial ethics. Judge Roberts accordingly must refuse, like all prior nominees, to answer such questions.

If any nominee were to answer such questions, as Justice Ginsburg put it, he would “act injudiciously” by giving “hints, forecasts, [or] previews” of how he might rule. This can give rise to expectations on the part of litigants and the public that can undermine both the fact and appearance of a justice’s being impartial once an actual case with real parties comes before the Court.

Cutting Through the Spin


When liberals say…

* civil rights, they mean racial quotas and forced busing.
* reproductive rights, they mean underage girls should get abortions without notifying their parents.
* equal pay for women, they mean government bureaucrats determining your pay.
* environmental protection and worker rights, they mean the government has unlimited power to regulate private property and business.
* church-state separation, they mean your town can’t display a Menorah or Christmas crèche during the holidays.

If confirmed, Roberts will benefit the country by not being a judicial activist:

* First and foremost, Roberts won’t allow bureaucrats to seize ordinary people’s private property.
* He won’t redefine traditional marriage.
* He won’t strike ‘under God’ from the Pledge of Allegiance.
* He won’t force the Boy Scouts to hire openly homosexual Scoutmasters.
* He won’t favor criminals’ rights over victims’ rights.
* He won’t protect simulated child pornography on the Internet.
* He won’t allow Congress to legislate in areas where the Constitution doesn’t grant it authority.
* He won’t ban the death penalty.
* He won’t permit the politicians to regulate what we say about them at election time.
* He won’t allow government to treat people differently because of their skin color.
* He won’t hamstring the military and intelligence services in the War on Terror.
* He won’t block school choice for kids trapped in failing schools.
* He won’t eliminate the right to gun ownership.


Attention C-SPAN Junkies


On Thursday morning from around 8:30 to 9:15 Eastern time, Ed Whelan will be on C-SPAN’s Washington Journal program discussing how the Roberts nomination bears on the issue of assisted suicide—suicide of human beings, not of the Democratic party. The launching point of the discussion will be the upcoming Supreme Court case of Gonzales v. Oregon, which presents the question whether the federal Controlled Substances Act preempts Oregon’s law purporting to allow physicians to prescribe and dispense drugs to an individual for the purpose of enabling that individual to commit suicide.

Roberts and the Ginsburg Standard


In trying to deny that it would be appropriate for Roberts to invoke the Ginsburg Standard–”no hints, no forecasts, no previews” about any issues that might come before the Court–the Left is now claiming that Ruth Bader Ginsburg was some sort of consensus candidate. It is not clear what logical bearing that claim has on a nominee’s ethical obligations to preserve both the fact and appearance of impartiality. But the claim is in any event wrong.

It is apparently true that Senator Hatch indicated to President Clinton that he believed that Ginsburg would face a much easier confirmation process than some of the other candidates Clinton was considering and that he himself would support her. But Hatch made clear that he believed that a president is entitled to considerable deference in selecting a Supreme Court justice and never suggested that Ginsburg was the sort of nominee that Hatch himself would select. In other words, Hatch was helping Clinton identify a nominee whom Clinton would like and who would be confirmed without substantial difficulty. Any Senate Democrat who adopted the same perspective with President Bush would have John Roberts at the top of his list.

As Hatch explained several weeks ago in an NRO essay (italics added):

President Clinton sought my input without my demanding it because he believed it would help him fulfill his constitutional responsibility for making judicial nominations. He did so not because Senate Republicans threatened filibusters or demanded some kind of veto power over his nominations. We did not try to impose a “consensus” standard or insist that a nominee meet some super-majority “widespread support” threshold.
Some have apparently cited a passage in a book by Hatch in which Hatch supposedly takes credit for calling Ginsburg to Clinton’s attention. I haven’t read the passage, and, in the tradition of politicians’ memoirs, it may well be that Hatch makes such a claim. But, especially in light of the Clinton administration’s very aggressive efforts to nominate female judges, one would have to be very naïve to believe that Ginsburg wasn’t on the Clinton White House’s radar screen from the outset. In any event, the point doesn’t affect the nature of the assistance that Hatch sought to provide.

As I have previously shown, Roberts is by any measure far more “mainstream” than Ginsburg was. The fact that Senate Democrats are far more hostile to him than Senate Republicans were to Ginsburg says much about Senate Democrats and nothing about Roberts. And it also says nothing about the appropriateness of Roberts’s invoking the Ginsburg Standard.

Voting Rights & Roberts


Edward Blum and Abby Thernstrom

VIA FACSIMILE (202) 224-9102

The Honorable Arlen Specter, Chairman

The Honorable Patrick Leahy, Ranking Minority Member

United States Senate

Committee on the Judiciary

224 Dirksen Senate OB

Washington, DC 20510

August 30, 2005

Dear Senators Specter and Leahy:

We are writing to you as coauthors of a forthcoming book on the Voting Rights Act to be published by the American Enterprise Institute Press and as co-directors of the Project on Fair Representation.

One of us, Abigail Thernstrom, is a political scientists and Vice-Chair of the United States Commission on Civil Rights. In 1987 she published Whose Votes Count? Affirmative Action and Minority Voting Rights (Harvard University Press) which won four prestigious awards, including the American Bar Association’s Certificate of Merit, one of the ABA’s two annual book prizes.

The other author, Edward Blum, is a Visiting Fellow at the American Enterprise Institute where he studies civil rights law and policy in the electoral process. Prior to this position, he served as Chairman of the Campaign for a Color-Blind America, Legal Defense and Education Foundation where he supervised the legal challenge to racially gerrymandered voting districts throughout the nation.

Our purpose in writing you is to draw your attention to a handful of op-eds and articles, written by us and enclosed, that examine the political and constitutional justification for sections 5 and 2 of the Voting Rights in the context of massive racial change over the last four decades. These issues will likely be discussed during the upcoming Judiciary Committee hearings on the nomination of Judge John Roberts to the Supreme Court.

As you will see in our Wall Street Journal op-ed of July 15, entitled “Do the Right Thing,” the emergency conditions that existed in the Deep South in 1965 to justify the imposition of the radical penalty of preclearance are long over. Federal approval of all election-related changes (from polling place relocations to new districting lines) was justified in an era of egregious violations of Fifteenth Amendment rights. But today, voter registration and election participation rates of blacks are nearly identical to those of whites. Furthermore, our preliminary state-by-state election analysis of those jurisdictions covered by section 5 suggests that white support of minority candidates is no different in Georgia or Alabama than it is in Massachusetts, Arkansas, and other jurisdictions that do not need permissions from remote federal authorities before using, say, new districting maps arrived at through democratic processes.

Preliminary analysis of election data in these section 5 jurisdictions also shows white crossover support for minority candidates is consistently high enough to elect minorities in statewide contests. Moreover, racial polarization rates are low enough to ensure minority success in both Democrat and Republican primaries. The fact that Georgia has elected an African American to the office of Attorney General and Texas has elected a Hispanic and an African American to statewide office speaks volumes to the changes in racial attitudes since the 1965 act was passed. There are over 9000 African American elected officials in the United Sates today. There would undoubtedly be an even larger number if black candidates were more willing to run in majority-white settings.

It is our belief that section 5 and the amended section 2 of the Voting Rights Act are grave constitutional infringements on basic federalism principles. Any concern Judge Roberts may have expressed about either of these provisions is justified in light of the Court’s recent jurisprudence. We are not alone in this opinion. In fact, during Senate floor debate on Feb. 27, 2004, Senator Kennedy spoke out against reauthorizing section 5 until a complete congressional inquiry has been completed, noting: “Critical analysis of issues surrounding preclearance of minority language provisions of the Voting Rights Act have not yet been fully examined and analyzed carefully to reflect the current status of laws, court decisions, enforcement actions, and society. The Supreme Court has made it clear in recent years that it will require Congress to establish a detailed record through hearings and legislative findings in order to ensure that provisions such as these survive constitutional scrutiny.”

We hope that you find our writings of value as you explore Judge Robert’s views on the constitutionality of certain provisions of the Voting Rights Act.

Sincerely yours,

Edward Blum Abigail Thernstrom

Visiting Fellow Co-Chair, U.S. Commission on Civil Rights

American Enterprise Institute Lexington, MA

Washington, DC (781) 861-7634

Articles enclosed: “Do the Right Thing.” Wall Street Journal. 07-15-05

“After 40 Years, It’s Time to Move On.” Richmond Times Dispatch. 08-01-05.

“Roberts, Misjudged.” Los Angles Times. 08-11-05.

Color Inside the Lines.” Legal Affairs. Nov. 2003.


John Roberts’s “Seclusion”


Some Congressional Black Caucus members are “concerned” about John Roberts’s “secluded” upbringing in Northern Indiana. They think he should be asked about it. After all, one congressman said, if Roberts’s “only knowledge” of black folks is from movies and the Six O’Clock News, “that is a problem.”

It sure is. In fact, any 50-year-old American who has never actually met an African-American –you know, really and in person –is absolutely unqualified to sit on the Supreme Court. That is because such “seclusion” could only mean that the person has been comatose since infancy.

A bigger problem, though, is members of Congress whose “only knowledge” of Northern Indiana seems to be gleaned from Norman Rockwell paintings and from Knute Rockne: All American (starring Pat O’Brian as the legendary Notre Dame coach and, you guessed it, Ronald Reagan as doomed running back George Gipp).

None of the Black Caucus members actually live in northern Indiana, as I do. Maybe some have driven through on the highway. If so, they might have noticed that a short drive past LaLumiere–Roberts’s high school–is Gary, Indiana, where, even in Roberts’s youth, lots of black folks dwelled. And not just Michael Jackson, who has been on the Six O’Clock News quite a bit lately.

Anyway, what we really need to know is this: John Roberts, have you ever
attended a bar mitzvah? If not, why?

The Perfect Spokesperson for the Left


Kim Gandy, president of the National Organization for Women, demonstrated recently that she is both humor-impaired and vicious, as she misconstrued a two-decades old joke that Roberts made about lawyers as a joke about women and labeled Roberts a “Neanderthal.” In a segment yesterday on Roberts and abortion on C-SPAN’s Washington Journal, Gandy also showed that she is severely truth-impaired. To cite three (of many) examples:

1. On two occasions (once after being specifically corrected), Gandy asserted that the current Court is only 5-4 in support of the basic Roe regime. The Court is 5-4 on partial-birth abortion (a topic that was discussed at some length on the segment), but Gandy’s assertion expressly went to the broader Roe regime. The 5-4 lie is apparently commonplace among abortion activists, as this refutation indicates.

2. Gandy asserted that partial-birth abortion is almost always used only in cases of severe fetal abnormalities. But this lie was exploded more than eight years ago, when the executive director of the National Coalition of Abortion Providers repudiated what he called “the party line” and disclosed that “in the vast majority of” the 3000-5000 annual instances of partial-birth abortion, the barbaric act is done to “a healthy mother with a healthy fetus that is 20 weeks or more along.” (See here for extensive detail on this and other points, including underlying documentation.)

3. Long after NARAL has withdrawn its mendacious anti-Roberts ad, Gandy alleged that Roberts’s participation in the Bray case demonstrated that he supported the unlawful conduct at issue.

By the way, Gandy appeared on the C-SPAN segment along with Family Research Council’s Cathy Cleaver Ruse, who did a wonderful job presenting the pro-life and anti-Roe perspective. The contrast between Gandy and Ruse was striking across the board.

That USA Today article on AG Gonzales


USA Today’s account of AG Gonzales’s remarks is so garbled and self-contradictory that it is difficult to believe that it could be an accurate reflection of what Gonzales actually said. In any event, Senate Democrats would reach a new low in politicizing the judiciary if they were to question Roberts about his personal views on abortion. And in order to maintain both the fact and appearance of impartiality, Roberts should adopt the Ginsburg standard—”no hints, no forecasts, no previews”—regarding issues that might come before him.

Confederate Criticism Aside




The AG talks about hearings and questions to USA Today.



If they can get away with it, Senate Dems are going to use the late-coming Reagan docs (reminder: the release was a bad move from the beginning) as an excuse to prolong Roberts’s confirmation. Here’s Chuck Schumer: “Everybody makes mistakes, but blame is not the point here; a thorough evaluation of the nominee’s views is. If these documents reveal significant information about Judge Roberts’ views and we are not getting them until the eve of the hearings, there could well be a need for additional time to question the nominee.”

I Guess It’s Good News


Re: Hopes and Fears


In response to Gerard Bradley’s post below, let me clarify my hopes about the Roberts confirmation. First, I hope Judge Roberts sails through with few votes against him because, objectively, he is unquestionably qualified and deserving of confirmation and I hope for the day when the confirmation process operates as it should, and the confirmation of individuals like Roberts is no longer contested. Now I recognize this is a faint hope, but I’m not sure I read the politics in quite the same way as Professor Bradley. First, I think that if the president were to nominate another conservative to the court, there will be an effort to portray him or her as to the right of Roberts. Given that it is unlikely that the next nominee will have the same pedigree and depth of liberal support within the D.C. Bar as does Roberts, this effort will likely be successful. Thus, if there are 35-40 votes against Roberts, a subsequent conservative nominee will have a more difficult time getting confirmed. The best argument for hoping the Left musters 30-plus votes against Roberts is either a) this will represent the maximum number of votes the Left can muster against a nominee on ideology alone so subsequent conservative nominees will also make it through with equivalent vote tallies, or b) there will be a political backlash against some of those who vote against Roberts that will make moderate and/or “Red State” Democrats less likely to vote against subsequent nominees. These scenarios are possible, but speculative. Thus I would prefer that exceedingly qualified court nominees (of either party) sail through without substantial Senate opposition. In this respect, the Ginsburg confirmation is, and should be, the model. Alas, Professor Bradley and I probably agree that the likelihood of most Senate Democrats, let alone liberal activist groups, accepting this model in the near term is slim to none.

Re: Hopes and Fears


My forecast: The only “single-digit opposition” that Roberts is going to encounter is in the Senate Judiciary Committee–and that’s because there are only eight Democrats on the Committee. At this point, I think it likely that Roberts gets confirmed with somewhere between 55 and 70 votes. It’s possible that he’ll get more than that, but I see no reason to expect it.

Senate Democrats are walking the same tightrope that Tom Daschle fell off of. Their entire campaign and fundraising apparatus is pushing them hard left, at their electoral peril.

As a Supreme Court advocate, Roberts knew where to look for the five votes he needed. In his upcoming hearing, in order to get to 51, all he needs to do is hold his Republican base of support. The riskiest course of conduct would be for him to try to get a landslide vote: an extravagant effort to appease Senate Democrats (probably futile, in any event) could imperil the support of conservative senators.

I see the target as 51, rather than 60, because I think there is no prospect of a Democrat filibuster: The Democrats know that a filibuster of Roberts’s confirmation would trigger cloture reform.

AFJ’s “Decision” on Roberts


In an unusually clear display of the kabuki nature of liberal opposition to conservative judicial nominees, today Nan Aron of the Alliance for Justice “announced” AFJ’s opposition to John Roberts’ nomination to the US Supreme Court:

“Our decision today comes only after a dozen lawyers, working with us, have pored over thousands of documents and prepared an extensive analysis of his record…”

But AFJ’s announcement was a foregone conclusion. In mid April, more than two months before Justice Sandra Day O’Connor announced her retirement, Aron was interviewed on radio by Hugh Hewitt:

Hewitt: Do you oppose, and urge a filibuster for John Roberts?

Aron: Yes, we would.

Hopes and Fears


Jonathan Adler hopes that Roberts “sails through with single-digit opposition.” I don’t. Not because I think Jonathan is wrong in his take on E. J. Dionne or on the liberals in the Senate. In fact, I agree with Jonathan about all that.

The reason our hopes differ is this: Given the political realities of the spectacle looming before us, something will have gone way wrong for conservatives if nine or fewer Senators oppose Roberts. I will be very surprised — no, shocked — if Roberts sails through. I do not doubt he will confirmed. It is just that I expect twenty to thirty “no” votes.

But if John Roberts does sail through it will most likely be because the liberals conceded the battle in order to win the war. They will have successfully used Roberts to define conservatism down. They will have made the strategic choice to christen him by their votes as an “acceptable” or “mainstream” or “moderate” conservative, much like they now say O’Connor was. The thing is, they will have also used Roberts to marginalize those “extreme” conservatives — Bork, Scalia, Thomas, and the other nuts enamored of what they (the liberals) call “the Constitution in exile.” That is the constitution about which Cass Sunstein recently spoke, the one that is not safe for families, privacy, racial harmony, or for the arroyo southwestern toad.

RE: Reagan Docs


John Cornyn responds:

’Tens of thousands of documents have already been released—more than any Supreme Court nominee in history’

WASHINGTON—U.S. Sen. John Cornyn (R-Texas), a member of the Senate Judiciary Committee and a former Texas Supreme Court justice, made the following statement Tuesday regarding the National Archives and Records Administration’s announcement of the availability of additional documents:

“The National Archives and Records Administration has said these documents are likely to contain duplicative documents from previously released material, and if anything, their announcement only reinforces the fact that the Archive’s efforts to be thorough in the production of documents are unprecedented. Tens of thousands of documents have already been released—more than any Supreme Court nominee in history. And with each new release of information, it’s growing increasingly difficult for the President’s opponents to complain with a straight face about the need for more information.”

“Reagan Library Discovers Additional Roberts Records”


WASHINGTON, Aug 30 /U.S. Newswire/ – The Ronald Reagan Presidential Library, one of 11 Presidential Libraries that are part of the National Archives and Records Administration, has approximately 55 million pages of materials related to the Reagan Presidency. To date, the Library has opened 51,285 pages of records relating to Judge John G. Roberts.

In processing requests, the Library followed its standard search procedure by searching for Roberts records using his name. During the expedited processing of these records, the Library noticed a code, “CU AT 18,” associated with tracking sheets in the Roberts materials. The Library ran a search on that code, and on Monday, Aug. 29, discovered a large volume of White House Office of Records Management Subject case files that were entered into the system only by the code for John Roberts (instead of his name). Some of these materials will be duplicative of previously opened files.

The Library is now in the process of determining what documents within these case files relate to John Roberts. In order to make this material available as soon as possible, the National Archives has directed additional personnel from Washington, D.C. and other libraries to assist the Reagan Library staff in the expedited review of these records.

Kerr on New Anti-Roberts Ad


GW law professor Orin Kerr dissects the new anti-Roberts ad (mentioned here) on the Volokh Conspiracy. He generally concludes that the ad is likely to create a false impression about Roberts’s views.

The Alliance Speaks


The Alliance for Justice has released a 100-plus page report that, the Alliance claims, raises “serious questions” about Roberts’s fitness to serve on the High Court. Of course, Nan Aron promised to oppose, and urge a filibuster of, Roberts months ago, so we know what conclusion the Alliance will reach. For those interested, the report is here.


Sign up for free NRO e-mails today:

Subscribe to National Review