Bench Memos

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The Hurricane Seat


If I had a dollar for everyone today who said to me: “So Pickering then…”

The American Center for Law and Justice on Rehnquist


We are saddened by the death of Chief Justice Rehnquist whose tenure leaves an indelible mark on the legal and cultural landscape of this nation.

The Chief Justice served this country with distinction and his tenure as Chief Justice will be remembered for its precision and order. He embraced the political and cultural issues of the day and sought to bring a constitutional understanding that was consistent with the framers of the Constitution.

Chief Justice Rehnquist approached each case with honor and integrity a hallmark that will certainly contribute to his lasting legacy on the court.

It has been my privilege to argue regularly before the high court and appear often before the Chief Justice. He agreed with the ACLJ’s position in numerous cases including the distribution of religious materials at airports, the creation of student-led Bible clubs on public school campuses, the ability for religious organizations to use public school facilities after hours, the protection of the First Amendment rights for pro-life demonstrators, and ensuring that minors could exercise their First Amendment rights by participating in political campaigns.

Chief Justice Rehnquist, who served on the high court for 33 years and as Chief Justice since 1986, clearly understood the importance of the First Amendment protections outlined in the Constitution. His death marks the end of a historic era that spanned decades and saw the high court tackle many of the most significant cultural and political issues of the day. He will be truly missed.


Speaking of Nonsense on Fox


In the wee hours of the morning, I had the displeasure of dealing with the contemptible Professor Alan Dershowitz and his vicious personal attack on Chief Justice Rehnquist on Fox News literally moments after the nation learned of his death. While I was thinking worse, I had the good judgment to limit my verbal characterization of Dershowitz as a disgrace and a jerk.

The Hurricane Seat?


Kathryn mentioned Tim Russert raising this on MTP this morning and Lanny Davis later said on Fox News that George Bush should nominate someone from the moderate, center of the country because of the hurricane. This follows Susan Estrich’s claim last evening that the seat should be filled by Edith Clement because she is a woman, and from Louisiana. I’ve heard of the supposed woman and minority seats on the court, but a hurricane seat? These commentators make clear that hurricanes aren’t the only things full of ill wind.

The President on Rehnquist


From the top of the hour:

Our nation is saddened today by the news that Chief Justice William Rehnquist passed away last night. Laura and I send our respect and deepest sympathy to this good man’s children, Jim, Janet, and Nancy. We send our respect to all the members of the Rehnquist family.

William H. Rehnquist was born and raised in Wisconsin. He was the grandson of Swedish immigrants. Like so many of his generation, he served in the Army during World War II. He went on to college with the help of the G.I. Bill. He studied law at Stanford University. He graduated first in his class, that included his future colleague, Sandra Day O’Connor. Judge Rehnquist, and his late wife, Nan, raised their family in Phoenix, where he built a career as one of Arizona’s leading attorneys. He went on to even greater distinction in pubic service as an assistant U.S. attorney general, associate justice of the Supreme Court, and for the past 19 years, Chief Justice of the United States.

He was extremely well respected for his powerful intellect. He was respected for his deep commitment to the rule of law and his profound devotion to duty. He provided superb leadership for the federal court system, improving the delivery of justice for the American people, and earning the admiration of his colleagues throughout the judiciary.

Even during a period of illness, Chief Justice Rehnquist stayed on the job to complete the work of his final Supreme Court term. I was honored and I was deeply touched when he came to the Capitol for the swearing-in last January. He was a man of character and dedication. His departure represents a great loss for the Court and for our country.

There are now two vacancies on the Supreme Court, and it will serve the best interests of the nation to fill those vacancies promptly. I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist. As we look to the future of the Supreme Court, citizens of this nation can also look with pride and appreciation on the career of our late Chief Justice.

More than half a century has passed since William H. Rehnquist first came to the Supreme Court as a young law clerk. All of his years William Rehnquist revered the Constitution and laws of the United States. He led the judicial branch of government with tremendous wisdom and skill. He honored America with a lifetime of service, and America will honor his memory.

May God bless the Rehnquist family. Thank you all very much.


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.)


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