Bench Memos

NRO’s home for judicial news and analysis.

Rehnquist & Religion


From a Beckett Fund release:

“Farewell to a man of principle. The Becket Fund sometimes disagreed with him about what the Constitution meant, but we never doubted it was in safe hands.”

Statement by Kevin J. “Seamus” Hasson, Esq., Founder and Chairman of The Becket Fund for Religious Liberty. Complete statement below.

Under the Rehnquist Court, religious liberty got both better and worse.

Religious Liberty got better because Chief Justice Rehnquist helped to bring a measure of sanity to what had been a crazy Establishment Clause analysis. Before the Rehnquist Court, it was legal for the government to provide parochial school children with film strips, but not with projectors to show them, and with books, but not maps. This is what led Senator Patrick Daniel Moynihan to quip that a future case would have to be about atlases, which are books of maps. Thanks to Chief Justice Rehnquist, much, though not all, of the craziness has subsided.

Religious liberty got worse because the Rehnquist Court insisted on cleaning up the Free Exercise Clause, a Constitutional provision that is designed to be untidy. When the Free Exercise Clause was written, it was easy to let it mean what it said, because America was a Protestant nation with only a few Quakers, Jews and Catholics who dissented. Now that America is more religiously diverse, the Free Exercise Clause gives judges a case of Constitutional vertigo: is it now tempting to not let the Clause mean what it says because hundreds of religious groups will want exemptions from thousands of governmental laws? This was the fear that prompted Chief Justice Rehnquist to tidy up untidy territory.

Chief Justice Rehnquist opted for order over robust freedom of conscience, and we respectfully disagreed with him. Nevertheless, religious liberty is in his debt for the common sense he brought to Establishment Clause

The Chief


The Chief was a great lawyer, an excellent judge, and a good, decent man. Like his colleagues, and like all of his clerks, I admire him very much, and have great affection for him. He was light-hearted, witty, caring, and an excellent teacher. I hope that the political spin will not drown out what Americans should remember about the Chief: He was a dedicated public servant, committed to the rule of law and to the Court as an institution. He fundamentally transformed our conversations and thinking about the Constitution and the Court; he reminded us of important questions and principles that had, for a time, been neglected. He regarded himself as the bearer of a great trust, and of a heavy obligation of stewardship. He was faithful to that trust, and he fulfilled that obligation. God bless him.


George Will


George Will < a href="">recovers.

House Judiciary Committee Member


On Roberts: Red-State Democrats





More coverage in The Corner.

Rehnquist, R.I.P.


Wendy Long remembers him here.



A Catholic group is Podcasting commentary throughout the Roberts’s hearings.

What Specter Is Up To


Friday’s Washington Times has an interesting column by my friend Gary McDowell of the University of Richmond, charging Senator Specter with two offenses on the eve of the Roberts hearings. The first is an unreasoning animus against originalism, which “doomed” the Bork nomination in 1987 as far as Specter was concerned, and about which the senator appears to be preemptively alarmed in the case of John Roberts. On this score Gary and I are in perfect accord. Specter seems to have learned exactly nothing in the last 18 years.

The second, “even more distressing” sign from Specter, in Gary’s view, is his “institutional bullying” of Judge Roberts in his two recent letters to him. Gary reads those letters as threatening to judicial independence–and thus to constitutionalism more generally–inasmuch as Specter appears to be insisting that Roberts pledge that (in Gary’s words) “he would not dare exercise the power of judicial review to invalidate any of the legislative handiwork that might come from Congress.” This, I think, goes too far in its characterization of Specter’s current position.

I’ll leave aside for another time my disagreement with Gary about what the framers expected of the judiciary when it came to checking the Congress in the exercise of its powers. More to the point here, I think he has unduly universalized a fairly specific and narrow concern of Specter’s in these two letters to Roberts.

Senator Specter is only concerned that the Court might strike down those laws to which he is attached as an ideological matter. The only cases he cites as raising his concern about the Court’s lack of “deference” to Congress are those that turned back the agenda of the left–U.S. v. Lopez on guns in schools, U.S. v. Morrison on the Violence Against Women Act, a couple of cases concerning the liability of states to lawsuits under the Americans With Disabilities Act, and so forth.

Specter’s intent, we can be sure, is not to shield any and all acts of Congress from judicial invalidation. All we need ask ourselves is, what would be the senator’s reaction should the Court strike down the federal ban on partial-birth abortion, or the Defense of Marriage Act? Isn’t the answer obvious–that he would have no objections at all? That he would actually applaud such rulings, forgetting all about his recent discovery of the virtues of judicial deference?

My friend Gary McDowell treats Arlen Specter as though he were actually making a serious argument about the principle and scope of judicial review, and McDowell meets Specter head-on with a principled reply. But this gives Specter too much credit. He is really just a result-oriented ideologue, who wants the Court to uphold the laws he likes and strike down the ones he dislikes. It’s as simple as that.



Wow, John Dean is a Democrat witness against John Roberts. Impressive. Maybe Bill Clinton will be added. That way we can hear from the disbarred and the bar suspended.

Religious Tests


Beckett Fund sends a message to the Senate (in a letter that went out to senators today and will appear in the NYTimes Monday):

[U]sing fervent religious faith, of any tradition, as itself a disqualification for public office is unconstitutional. To repeat, any Senator of either party who resorts to
such tactics will be the subject of a prompt ethics complaint.

The Law Prof Letter


As Jonathan mentions, 160 law professors have signed–and surrounded with press and publicity–a letter in opposition to John Roberts. (Here is the letter.) Its author is, apparently, Erwin Chemerinsky, a reliably partisan professor of constitutional law at Duke.

Jon is too nice to say it, but I will: The letter is quite unimpressive. It is utterly partisan, and badly distorts and misreads nearly every source or item to which it refers. That newspapers are reporting the story as “160 law professors sign letter opposing Roberts,” without noting that many of those signing the letter have no expertise at all in constitutional law, and that a congregation of 160 professors is, as Jon notes, surprisingly small, reflects badly on the coverage. The real story here is that 160 law professors–very few of whom are experts in the matters discussed in the letter–have signed their names to what purports to be a statement by disinterested scholars but is really a cut-and-paste job of the People for the American Way’s talking points.

At Least No One Had the Nerve to Include NARAL


Democratic witnesses, a Hill staffer passes along:

John Dean
Karen Pearl, Interim President, Planned Parenthood
Wade Henderson, Executive Director, Leadership Conference on Civil Rights
Carol M. Browner, The Albright Group, Former Administrator, EPA
Beverly Jones, Lafayette, Tenn.
Anne Marie Tallman, President and General Counsel, Mexican American Legal Defense and Education Fund
Reginald Turner, President, National Bar Association
Marcia Greenberger, President, National Women’s Law Center
Coach Roderick Jackson, Birmingham, Ala.
Judge Nathaniel Jones, 6th Circuit Court of Appeals, Retired
Rep. John Lewis, (D-Ga.)
Susan Thistlethwaite, President, Chicago Theological Seminary

Plus three additional, not yet confirmed

Re: Academics Against Roberts


Jonathan is correct to observe that it is remarkable how few law professors signed the anti-Roberts letter. Indeed, now that I have reviewed the list of signatories (not online, when last I checked), what is most remarkable is how obscure the signatories are. I’d be surprised if any lawyer would recognize more than three or four of the names on the list.

Academics Against Roberts?


Yesterday law professors Erwin Chemerinsky (Duke) and Peter Edelman (Georgetown) released a letter signed by 160 law professors opposing the confirmation of John Roberts (coverage here). The real news is not that there are so many law professors on the letter, but so few. Given that the clear majority of legal academics lean to the left, it is notable that only a small fraction of the nation’s several thousand law professors were willing to sign on. (It may also be worth noting that only three months ago Chemerinsky said he thought Roberts would be a relatively non-divisive nominee, as compared to some potential alternatives.)

Rotunda Responds to Turley


In response to this USA Today op-ed on John Roberts, by GWU law professor Jonathan Turley, my colleague Ronald Rotunda penned the following letter to the editor.

Commentary writer Jonathan Turley complains that reporters, who have combed more than 50,000 pages of documents that relate to the years when Judge John Roberts was a lawyer, cannot draw a definitive portrait of the man.

But Turley, not a journalist but a law professor, tells us he is more gifted. He claims to know, with powers more clairvoyant than any ancient shaman, what lies ahead by looking at 20-year-old documents (“Roberts: The Before and The After,” The Forum, Wednesday).

Turley says that if Roberts is asked about the documents, he “can claim that he was merely representing a client.” Well, he was. Lawyers are supposed to make legal arguments for clients and tell the clients what the courts are likely to do. Roberts’ writings rarely gave policy advice. A law professor, of all people, should know that: We don’t judge lawyers by their clients.

Turley tells us Roberts must be against equal rights for women. But Roberts’ wife is a law partner in a Washington D.C. law firm. Turley criticized Roberts for the Reagan administration’s position on habeas corpus. Yet President Clinton later signed into law the Reagan administration’s position on habeas corpus.

The most important fact that Turley fails to mention is what we do know–Judge Roberts is one of the most qualified candidates in the history of the Supreme Court. His judicial temperament and intellect are praised by his peers and senators from both sides of the aisle. It is the custom, in recent confirmation hearings, to flyspeck the nominee. But we have enough documents that we don’t have to resort to Turley’s tea leaves.

The letter appears in today’s edition.

“This has got to get more visibility”


Katrina inconveniences the Left’s Get-Roberts Strategy:

But as they scramble to rally grass-roots supporters in the days before the confirmation hearings and the month before the Senate is expected to vote, some opposition groups worried that their efforts had failed to pierce the din of concerns about rising gasoline prices, casualties in Iraq, and, most recently, the hurricane devastation in New Orleans.

“Now there is this hurricane,” said Eleanor Smeal, president of the Feminist Majority Foundation. In exasperation, Ms. Smeal suggested Thursday that the Senate Judiciary Committee should postpone the confirmation hearings, scheduled to begin Tuesday, because the hurricane was distracting attention from debate on the nomination. “This has got to get more visibility,” Ms.
Smeal said. “We have to do something.”

A Profile in Conservative Headaches


Washington Post:

…Specter’s maverick streak appears as strong as ever. He has signaled plans to ask the nominee pointed questions, and he endorsed a Democratic call for the Bush administration to release more documents related to Roberts. Moreover, Specter says he will use the hearing as a forum to rebuke the current Supreme Court — particularly conservative Chief Justice William H. Rehnquist — for “insulting” Congress in rulings in which Roberts played no role.

This Sounds Bad If True



Yet Mr. Schumer, who ranks 14th out of 18 members of the committee according to seniority, said yesterday that he has already secured a pledge from Mr. Specter and the ranking Democrat on the committee, Senator Leahy, that he will be allowed as much time as he wants.

“I explicitly asked both Senator Specter and Senator Leahy would I get as many rounds as I needed, and they said yes,” Mr. Schumer said. “So I expect to have many more rounds than two …

Witnesses--From Chairman Specter


Below, please find the TENTATIVE list of Majority witnesses and presenters who are scheduled to testify at the Nomination Hearing of John G. Roberts, Jr., of Maryland, to be an Associate Justice of the Supreme Court of the United States. The presenters will introduce the nominee on Tuesday, September 6, 2005 and the outside witnesses are expected to testify on Friday, September 9, 2005.

NOTE: William Barr has been replaced with Dick Thornburgh.


* Sen. Warner
* Sen. Lugar
* Sen. Bayh

TENTATIVE Outside Witnesses

Panel 1

* Steve Tober, Chairman, ABA Standing Committee on the Federal Judiciary
* Tom Hayward, past-Chairman, ABA Standing Committee
* Pamela Bresnahan, ABA DC Circuit Representative/Investigator

Panel 2

* Dick Thornburgh, Attorney General 1988-1991
* Bruce Botelho, Mayor of Juneau, Alaska
* Jennifer Braceras, Commissioner on the U.S. Commission on Civil Rights and Visiting Fellow at the Independent Women’s Forum

Panel 3

* Catherine Stetson, Hogan and Hartson
* Maureen Mahoney, Latham and Watkins

Panel 4

* Elsa Cole, General Counsel, NCAA
* Peter Kirsanow, partner, Benesch, Friedlander, Coplan & Aronoff and Commissioner on the U.S. Commission on Civil Rights
* Diana Furchtgott-Roth, Hudson Institute

Panel 5

* Charles Fried, Harvard Law

* Christopher Yoo, Vanderbilt Law
* Patricia Bellia, Notre Dame Law

Panel 6

* Jay Sekulow, American Center for Law and Justice


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