Bench Memos

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Whelan, Bench Memos & NARAL


For the record (from The Corner).

The Abortion-Clinic Stuff May Not Be Dying Though


WASHINGTON – (KRT) – In 1991 John Roberts was a young federal official confronted with a growing crisis in Wichita, Kan.

Anti-abortion protesters in Wichita were attempting to shut down the city’s abortion clinics.

The “Summer of Mercy” protests heightened community tensions, so much so that a federal judge in Wichita ordered U.S. Marshals to keep the clinic open.

Roberts, representing the administration of President George H.W. Bush, had a choice: let the judge’s ruling stand, or fight it. He chose to intervene.

Fourteen years later, that challenge of a court decision is receiving new scrutiny as Roberts next month faces confirmation hearings for the U.S. Supreme Court.

With activist groups on the right and left scrutinizing his every past action, the Summer of Mercy and Roberts’ role in it is gaining new national interest.

Supporters say his decision shows respect for the law. Critics charge him with putting ideology over public safety.

“John Roberts challenged rather than protected the notion of women’s safety,” said spokesman Ted Miller of NARAL Pro-Choice America, an abortion-rights group opposed to Roberts’ nomination. “He had the option to remain neutral, but instead he chose to put the government on the side of violent protesters.”

In August 1991, Judge Patrick Kelly had seen enough.

More than 2,000 arrests had been made since Operation Rescue started its protests in July. Protesters had broken an agreement with Kelly not to block clinic entrances. Fighting with police, throwing themselves in front of cars, the demonstrators were putting a strain on local police.

So when clinic owner George Tiller and others petitioned for protection, Kelly ordered in federal marshals.


Waiting for Corrections


The NYT issued corrections regarding their misrepresentation of Judge Roberts’s Rancho Viejo decision. It’s time for “Marketplace” and Robert Reich to follow suit.

The “Smear” Word Again


Shows up in a liberal Boston Globe column re: NARAL. Though this is how Scot Lehigh wraps up: That’s something partisans on both sides too often excuse in members of their own party or in their ideological allies. But just as it was wrong for Swift Boat Veterans for Truth to wage a campaign of character assassination against Democratic nominee John Kerry last year, so too it is wrong for NARAL to smear John Roberts as someone who somehow supports, condones, or excuses violent extremists.

Dangerous Roberts


Kate Michelman:

By all indications Roberts might vote to overrule Roe. To imperil the lives and rights of millions of women, he would not have to. Roberts need only vote like a shadow of the conservative he’s always claimed to be.


Jonathan Chait on NARAL & the Left


In the LATimes:

Roberts is widely regarded as extremely intelligent. Unlike conservative ideologues such as Antonin Scalia or Clarence Thomas, he prefers not to rewrite legal doctrine with sweeping new decisions. He is not the sort of nominee who you’d think should start a culture war.

Unfortunately, somebody forgot to tell that to NARAL Pro-Choice America, which has launched a new television ad assailing Roberts. The ad itself is highly misleading. It berates Roberts for arguing, during his tenure in George H.W. Bush’s Justice Department, that the 1871 Ku Klux Klan Act could not be used to stop antiabortion protesters. NARAL’s ad interprets this argument to mean that Roberts would be “a justice whose ideology leads him to excuse violence against other Americans.”

Read what he has to say about the Right though. too. Hint: He brings up “disproportionately poor, uneducated, and easy to command.”



Wow. The Washington Post is pretty tough on NARAL in a Friday editorial. As it should be. Still, I didn’t expect it.



RE: Luttig


My Luttig example doesn’t apply now, given Gerry’s last post.

Arlen Specter


has asked NARAL to abort the “blatantly untrue and unfair” ad.

Roberts on the Role of Judges--Overturning Wrong Precedent


In the April 2003 hearing on his nomination to the D.C. Circuit, John Roberts succinctly explained that the Supreme Court should accord no deference to wrong precedent: “[O]bviously if the decision is wrong, it should be overruled. That’s not activism. That’s applying the law correctly.” (p. 71)

The Left, by contrast, embraces a sort of Brezhnev doctrine in which the Court’s illegitimate power grabs in its favor are sacrosanct and any effort to overturn them is mislabeled as activism. Thus the bizarre “Nietzschean vision” (in Scalia’s apt phrase) of stare decisis set forth by the Court in Planned Parenthood v. Casey (declining to overturn Roe) but promptly abandoned by it in Lawrence v. Texas (overturning Bowers v. Hardwick).

While many on the Left will claim that Roberts’s general proposition is controversial, it is in fact elementary and flows directly from the justice’s oath of office. As the ultraliberal Justice Douglas put it, “A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.”

By the way, it has been thought that an exception to this general rule might be necessary for “decisions that have become so embedded in our system of government that return is no longer possible” (Scalia’s phrase). But any such decisions are, at best, extremely rare and, as I intend to show in an essay one of these days, are in fact demonstrably non-existent. Stated somewhat differently, I will explain how it is possible to overturn any wrong decision, constitutional or statutory, without causing any serious disruption.

Do I Have the Right URL?


Human Events looks like the Democrats’ anti-Roberts war room right now.

Answering the Questions


First, we know Roberts won’t answer all the Schumer-like questions asked him because no nominee has or would (Bork went further than any, but I doubt he would have taken all of Schumer’s bait). And Roberts’s advisors are repeatedly asserting the Ginsburg Rule, which I reject, as it is not a rule at all but a weak precedent for avoiding most questions put to the nominee.

I think Ramesh’s view will predominate as a practical matter among conservative (and most Republican) senators who seek specific answers about specific cases. They will vote for Roberts short of some debacle, and regardless of his unwillingness to answer a laundry-list of questions. So, I’m not sure what these senators seek to accomplish with a line of questioning that will prove unhelpful in discerning Roberts’s judicial philosophy.

Gerry’s position is certainly very logical, but I believe if he were a senator he would find himself voting against virtually every nominee, perhaps even a Michael Luttig if Luttig refused to answer Schumer-like questions. Gerry is extremely persuasive in setting forth the role of a senator, but the role of a nominee (especially a sitting federal judge) would, I believe, frequently conflict with his demands.

But this does go to my earlier (second) point, with which we agree (and I am not the only one to voice it), i.e., that the tactic of Republican presidents nominating individuals to the Supreme Court with thin records–which is, I believe, Gerry’s primary concern–should be denounced. It may well deny political opponents opportunities to attack a nominee, but it also denies the rest of us some certainty about a nominee’s judicial philosophy as well. It’s a big risk and one that, in the end, usually benefits the anti-constitutionalists.

Thanks for engaging.

Re: Linda Greenhouse on NARAL Ad


While I agree the Greenhouse piece is lame for burying the analysis on the anti-Roberts ad, it does deserve praise for finding liberals to criticize NARAL:

Frances Kissling, President of Catholics for Free Choice said she was “deeply upset and offended” by the advertisement, which she called “far too intemperate and far too personal.”

Kissling said the ad “does step over the line into the kind of personal character attack we shouldn’t be engaging in.”

She added: “As a pro-choice person, I don’t like being placed on the defensive by my leaders. Naral should pull it and move on.”

Former Acting Solicitor General in the Clinton Administration, Walter Dellinger, sent a letter to the Judiciary Committee yesterday saying ad was “unfair.” (Last night on ABC News, he said it was “misleading”)

Ramesh on Mark


Ramesh’s post makes me want to clarify my earlier response to Mark Levin, the one in which I dream of being a U.S. senator. Now I should like to dream that I have been nominated to the Supreme Court.

Ramesh would vote for Robert Alt, even if Robert refused to say much at his hearings. I am not sure if Ramesh is thinking exactly along these lines, but, sure, the important thing is for a senator to know somehow where a nominee stands on the issues that matter most. Then a nominee scrupulous of answering at a hearing can still be evaluated by the conscientious senator.

For example, someone as promiscuous in sharing his opinions about what constitutional law ought to be as . . . well, me, could say nothing whatsoever at his hearings, and still get an up or down vote from conscientious senators. No doubt at all where I stand on the issues. At least since my last Bench Memos post . . .

More About Making Cases


Here is a quick preliminary response to Mark Levin’s main challenge to those (such as myself) who call for broad questioning of a judicial nominee. The example at hand happens to be John Roberts. But Mark’s question transcends Roberts. Mark’s question has to do with what is generally permitted (under relevant judicial codes of conduct) and what is generally the responsibility of senators charged by the Constitution with a grave responsibility: “advice and consent” to lifetime appointments to the federal bench. He asks specifically what I would do if Roberts refused to answer a bunch of questions. I do not know what I would do. But I can say a bit about what I think a senator’s responsibilities are.

1. I have said before that if the relevant rules governing judges are as clear and as clearly applicable as (I think) Mark supposes they are–and if they clearly mean for someone in Roberts’ position to decline to answer–then Roberts should decline to answer.

2. I doubt very much they are so clear, though I have yet to study them with care.

3. If I were a senator I would refuse to consent to any nominee about whom I could not learn enough to conscientiously discharge my constitutional responsibility. If the reason is a nominee’s interpretation of prevailing judicial ethics, so be it: I still cannot consent. My responsibility as a senator is to follow the Constitution, and what I honestly believes it requires of me. It binds me at least as much as we are supposing prevailing judicial canons bind the nominee. And the Constitution is the supreme law.

4. If I were a senator I would judge that “name, rank, and serial number”
were not nearly enough for me to judge a nominee’s fitness, and so I would not consent to the appointment of such a nominee. A nominee’s training, character, competence, and commitment to honestly doing the job are necessary but not sufficient to garner the consent of at least this (hypothetical) senator. In other words, I do not think that the Constitution requires me to sign off on any competent lawyer who has good character. Not nearly.

5. In fact, the Constitution I swore to protect and defend when I took office has, in my conscientious judgment, some pretty definite things to say about some important matters. Let me be specific about the three leading issues in what some call today’s “culture war”: secularism, abortion, same-sex marriage. The first two have been imposed upon the people by the Supreme Court. These impositions have been grotesques distortions of the Constitution. The third is in the offing. Lawrence v. Texas signals that. If the Supreme Court imposes same-sex marriage upon the people, it too would be a grotesques distortion of the Constitution.

6. On the first two matters the Supreme Court has greatly harmed the common good of our society. On the third, they are poised to do the same.

Believing the foregoing to be true, I wonder just how it is that I–as a senator–would be living up to my responsibilities to the Constitution and to the people were I to say: “Mr. Nominee, you have told us nothing definite about what you think the Constitution says about secularism, abortion, same-sex marriage. At least, I do not know where you stand. Very well. I consent to your lifetime appointment to the Supreme Court. I pray you do the right thing there.”

For Mark


I’ll let Gerry handle your question about examples. Let me put in my own answer to the question: “[I]f Roberts used the canon of judicial ethics or impartiality as bases for refusing numerous Schumer-like questions, as I expect he will, would Gerry et al. continue to support his nomination or not?” My own answer would be: certainly. Let’s say Bush had nominated Robert Alt. (Now there’s an idea. . .) And let’s say, as long as I’m dreaming, that I’m a senator. I’ve asked Alt questions that he sincerely believes that he cannot in good conscience answer. His position is not a crazy one. People of good will and (generally!) sound mind can hold it. I disagree with his conclusion, and would probably say so as a senator. But that disagreement would not keep me from concluding that Alt’s confirmation would almost certainly improve the Supreme Court and, therefore, from voting for it.

The NYTimes Corrects the Record


Today the New York Times issued the following corrections concerning its coverage of John Roberts’s now-infamous dissent from denial of a petition for en banc review in Rancho Viejo v. Norton:

An article on July 22 about efforts by the White House to shore up support for Judge John G. Roberts Jr. among social-issue conservatives, a full year before he was nominated for the Supreme Court, referred incorrectly to his dissent in a case before the United States Court of Appeals for the District of Columbia Circuit, involving the arroyo toad. (The error was repeated in articles on July 23 and on Tuesday.) Judge Roberts said the court should rehear the case and consider whether the Interior Department had properly invoked the Endangered Species Act in this circumstance. He did not say the federal government lacked the power to block a California real estate development because it endangered the toad.

An article on July 20 about preparations by advocacy groups to oppose Judge Roberts also referred incorrectly to his dissent. He did not question the constitutionality of the Endangered Species Act.

Now it’s time for NPR’s Marketplace and Robert Reich–and all others who have made this mistake–to correct the record as well. These mistakes should never have occurred, as the meaning of Roberts’ opinion should be clear to anyone with a modicum of legal training who actually read the opinion. With luck, I won’t have to post on this issue again.

Re: Making the Cases


I appreciate Gerry’s response, especially the part where he agrees with me. But Gerry also writes, in part:

“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.”
I think this response demonstrates the problem with demanding answers to certain questions we’ve debated at length here. While I don’t expect Gerry or anyone else to present several examples of the kind of non-specific responses that would be acceptable, how about one, two, or three such examples? And once we get those examples, we can examine them. But this still doesn’t respond to my question: if Roberts used the cannon of judicial ethics or impartiality as bases for refusing numerous Schumer-like questions, as I expect he will, would Gerry et al. continue to support his nomination or not?

I understand Schumer and Boxer’s point, which is, as Richard Epstein argues, to create a circus atmosphere at the hearings in hopes of embarrassing Roberts. But that’s not satisfactory for us. It seems to me that asking Roberts questions that we know (generally) he won’t answer–because of the cannons of judicial ethics and concern for impartiality–is folly.

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.


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