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Bench Memos

NRO’s home for judicial news and analysis.

That USA Today article on AG Gonzales



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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



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Questions



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The AG talks about hearings and questions to USA Today.

Delays



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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



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Re: Hopes and Fears



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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



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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



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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



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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



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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”



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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



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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



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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.

Small, Annoying Mistake



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Both the PFAW and Alliance for Justice reports on Judge Roberts claim that the vote for rehearing the “hapless toad” case (Rancho Viejo) was 7-2. Maybe so, but neither group knows this. Although only two judges on the court wrote dissents from the decision, this does not mean only two judges voted for rehearing. As the D.C. Circuit handbook explains: “An order granting rehearing en banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish” (emphasis added). In other words, judges can vote for rehearing, but then keep their votes private when the order is released. For all we know the vote was 6-3 or 5-4. I know this is a tiny detail, but the mistake still annoys me every time I see it.

An Important Birthday, Spoiled



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One week after Constitution Day, another important date in constitutional history will come around. September 24 is the 250th anniversary of the birth of the great chief justice, John Marshall. At a hotel near Marshall’s Richmond home (which has been kept up wonderfully by the Association for the Preservation of Virginia Antiquities) there will be a gala dinner on the 24th under the auspices of the John Marshall Foundation. Black tie, moderately pricey tickets, almost worth the drive to Richmond, until one sees that the featured speaker, and recipient of the Inaugural Award of the John Marshall Medal in Law, will be . . . Justice Anthony Kennedy. I understand that the organizers of such events strive to be nonpartisan, and eventually they’ll probably get around to every one of the justices. But the inaugural medal to Justice Kennedy? On the quarter-millennium birthday of the greatest jurist in American history? What a letdown. I’ll stay home and save the gasoline.

Scalia on “Moderate” Interpretation of Constitution



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The AP reports on comments made by Justice Scalia at Chapman University in California:

Scalia . . . railed against the principle of the “living Constitution,” saying it has led the Senate to try to appoint so-called politically “moderate” judges instead of focusing on professional credentials and ability.

“Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?” he said, to laughter and applause.

Scalia didn’t make any direct references to the looming confirmation battle for Supreme Court nominee John Roberts, but he did allude to it.

“Each year the conflict over judicial appointments has grown more intense,” he said. “One is tempted to shield his eyes from the upcoming spectacle.”


It Was Early-Morning Wishful Thinking



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Make sure you’re all rested for the long September.

Re: Dionne



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I am not sure the Dionne column is quite so defeatist, Kathryn. Rather, I think Dionne is shrewdly laying the predicate for one of the potential lines of attack, He concludes:

The paradox of the Roberts nomination is this: Roberts seems untouchable because of his shrewd and extensive preparation for this critical moment in his life. He could be derailed only if he proves to be too shrewd, too smooth and too evasive.
Given that we all know that a) the White House will not release documents from the SG’s office, b) Roberts will not answer questions that bear on issues that may come before the Court, and c) he will do so in a “smooth” fashion (as he did at his prior confirmation hearing), Dionne is leaving open the possibility of opposing Roberts on precisely this basis. We saw something similar with Bork. He was attacked for his scholarly writings, yet when he distanced himself from some of the writings, he was accused of a “confirmation conversion.” Given that a frontal attack on Roberts’ views or experience is unviable, they’ll go after him for refusing to disclose and being “too shrewd, too smooth, and too evasive.” Of course, I hope I am wrong, and that Roberts sails through with single-digit opposition–but don’t bet on it.

I Don’t Think E. J. Has a Fight In Him



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Clearing it Up



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From the AEI website (linked in Jonathan’s post) – “Professor Cass Sunstein argues in his new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, that the best approach is a form of cautious incrementalism. He suggests that judges build on their precedents, but show a reluctance to strike down the decisions of the elected branches.“

Well, that clears it up for me. And lest anyone forget, there’s “The Constitution 2020.” Hopefully George Will will be armed with this information (I have no expectation Jeffrey Rosen will).

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