Bench Memos

NRO’s home for judicial news and analysis.

Let’s Be Franck About Will


I do not know what to make of George Will’s Thursday column. I am willing, though, to defer to Matt Franck and his “impish” read of it, as a send-up of liberal pabulum on the Constitution. I am willing because deferring to Matt is usually good policy and because, well, I don’t know what to make of Will’s column.

Two things I do know have to do with “originalism,” the Fourteenth Amendment, and race discrimination — Plessy, Brown and all that. We will never understand what the relevant history has to tell unless we first understand that the framers and ratifiers of that Amendment meant, intended, and expected that Congress — not the Court — would be the primary guarantor of its protections. And we know this, too: The “original understanding” of the Equal Protection Clause included the understanding that Congress (at least) could outlaw racial segregation in the states — as the debates over various civil rights proposals through Reconstruction make quite clear.

Action in the Lower Courts


Today the U.S. Court of Appeals for the Fourth Circuit issued its long-awaited decision Padilla v. Hanft. The decision, upholding the detention of Jose Padilla, appears to be a big victory for the federal government. Of note, the court’s opinion (available here) was written by Supreme Court short-lister Michael Luttig.


The Battle Shifts?


Based on this story in today’s NYT, it appears that Senate Democrats may ease up on the confirmation of John Roberts to focus their fire on whomever the President nominates to replace Justice O’Connor. This seems like a shrewd move on their part. Judge Roberts is certain to be confirmed, and it could be difficult to mount back-to-back campaigns opposing a nominee. On the other hand, activist groups have already expended a fair amount of ammo on Roberts, and the public may not be so quick to forget if the Dems suddenly change gears (especially with groups like the Committee for Justice running independent ad campaigns in support of nominees). Their decision is complicated by the fact that we don’t yet know who Bush will nominate for O’Connor’s seat.

Bored with Roberts or Just a Brilliant Disguise?


Are Senate Dems resigned to the next chief? Kirkpatrick@NYTimes:

“Has anything come up before the hearings that is a showstopper for Roberts? The answer is no,” said Senator Richard J. Durbin of Illinois, the Democratic whip, who, as a member of the Judiciary Committee, voted against confirming Mr. Roberts to a federal appeals court seat two years ago.

George Will’s Bit of Fun


Oh what a clever imp George Will is in his Thursday column! He leads on his readers with questions apparently meant to be serious, and then lets us in on the joke in the final sentence: “Or is this the fallacy of the false alternatives?”

Only then did I see that this had been the pattern of the whole column–to present, in the guise of questions for Roberts, a string of ill-constructed alternatives to which no sensible person would agree to be confined in construing the Constitution.

First, citing evidence (pretty good evidence, too) that the framers of the 14th Amendment did not mean to reject all uses of racial categories by state governments, Will asks, “So what help are ‘historical grounds’ when construing the Constitution?” Huh? Does Will really mean to suggest that if history doesn’t dictate our preferred policy outcomes, we should reconsider taking history seriously? I should have gotten the joke right way, but I was too slow.

Next, he contrasts the prevailing view of the “cruel and unusual punishments” clause of the 8th Amendment–that its meaning changes with society’s “evolving standards of decency”–with Justice Scalia’s statement that the “whole purpose” of a Constitution “is to prevent change,” and asks, “Is Scalia wrong?” Has it occurred to Will that both views might be wrong–or more precisely, radically incomplete as accounts of the Constitution and of judges’ role thereunder? Surely it has occurred to him. But at this point I’m still, foolishly, taking Will seriously.

Next Will repeats the standard praise of adherence to precedent, remarks that there are times when precedent should be abandoned, and asks Roberts when that abandonment should occur. Isn’t the answer obvious–and hasn’t Roberts already given his answer–that one overturns precedents when they are wrong? But wait. Will has slipped into his question a mention of overturning of Plessy v. Ferguson and hence of racial segregation. Now I begin to see. He’s having us on. Didn’t he begin the column by suggesting that history shows Plessy to have been right? And doesn’t he know that Brown didn’t formally overrule Plessy anyway? Sure he does. Tee hee.

Next Will sets up a false alternative between devotion to the text of the Constitution and inquiry into the “intent” of its framers, by imagining that there is some difficulty in discerning whether “speech” and “press” include people’s “handwritten notes.” I’ll have to use that stumper in my next exam.

Continuing on the subject of the First Amendment, Will again poses a choice between two alternatives no one would accept as the only ones available–suggesting that in the 1798 debate over the Sedition Act, one side’s view of the meaning of a “free press” represented “originalism” and the other didn’t. Read it yourself if you don’t believe me. It’s a hoot.

I knew I was seeing that patented George Will smirk behind it all when I got to his question whether Roger Taney’s opinion in Dred Scott was “(a) originalism and (b) activism?” Ho ho. Of course it was both, wasn’t it? But it was bad originalism, false originalism, mendacious originalism, as it was exposed to be by the dissents of Justices McLean and Curtis, and most famously by Abraham Lincoln (no mean originalist he). That’s why it was activism!!

Go read the laugh-out-loud final paragraph for yourself. Just remember that not many days ago, George Will had kind words to say on behalf of judicial activism. Who knew he was such a comic? James Lileks, call your office.


Flunked Out of Logic


Many thanks to K-Lo for bringing Richard Cohen’s ridiculous article to my attention. His claims about the need to experience failure to relate to the failures in our society—itself the sort of demeaning fare that one expects from the media elites–are the kind pabulum soundly crushed in most introduction to rhetoric classes on the first day. (You can almost hear the every-professor: Only those with particular experience can have an informed opinion? Really? Then who can offer an opinion about suicide, other than from the observers’ perspective?) No, Richard, we don’t need more college failures on the bench; we need less of them writing for the Washington Post.

Edith Jones


I can’t help noting that lots of smart people see Judge Edith Jones’s stock soaring. Her nomination (like that of several other candidates) would be another master stroke by the President.

Everyman Richard Cohen Pinpoints the Scandal of John Roberts


Open Letter to Senator Leahy


My Ethics and Public Policy Center colleague George Weigel offers some advice to Senator Leahy on next week’s confirmation hearing. Here’s an excerpt:

As one Catholic to another, permit me to suggest that you also have an opportunity, indeed a responsibility, to insure that Catholic-bashing, overt or subtle, does not spill over into the Judiciary Committee’s deliberations from the activists’ battle-of-the-blogs and the food fights on cable TV.

What’s Next II


The syntax of Bradford Berenson’s post “What Next?” makes it hazardous to attribute any particular one of the views he recounts to him. So let me say that one of the positions Brad articulates is worth emphasizing. It is the curious situation–which happens to be ours–of having so many solidly conservative jurists who register high on the “identity politics” scale. Just start with women from Texas (Owen, Jones) and work from there until you get to Janice Rogers Brown in California. These possible nominees all have more overt philosophical commitments on the social issues than does John Roberts (which is not to say that Roberts won’t turn out to be as conservative as they; we’ll have to wait and see). And here I disagree with at least one voice in “What’s Next?”. The Roberts nomination represents an affirmation of genuine merit and quality, to be sure. But anyone can see its obvious political appeal, too, and it lies in his philosophical modesty. Roberts is and always was very, very confirmable.
And so we have this funny situation again: encouraging a Republican president to be politically brave precisely by nominating a Latino or a woman or a woman of color–so long as it one of the many who have demonstrated commitments on some (or all) the key social issues.

Whod’a thunk it.

What Next?


The past is prologue. Amidst the speculation about the President’s next choice for the court, it is important to remember that the President is now making the same decision he made just six weeks ago: whom to appoint to replace Justice O’Connor. Some people believe the President felt comfortable appointing John Roberts, a white male, only because he felt certain he would have another opportunity to make a “diverse” appointment. I’m not aware of any evidence for this view, other than the President’s own sincere commitment to diversity on the federal bench, which in fairness cannot be discounted.

But there is another interpretation, cherished by the President’s conservative admirers. It is that, as with other big decisions of his presidency, President Bush was able to keep his eye resolutely on the ball and focus on the big, the fundamental, the important things, determinedly refusing to take stock of second and third-order considerations. These observers see the Roberts nomination as a reminder of the sometimes forgotten power of quality and old-fashioned merit. Roberts’ character, intellect, and obvious qualification as one of the finest legal minds in the country have effectively trumped partisan politics, petty politics, and identity politics. The grousing about his race and gender in the wake of his appointment was mild and short-lived. It was at best a footnote, completely overwhelmed by praise for his abilities and qualifications. There is, it turns out, safety in quality.

The President is also keenly aware that his Supreme Court picks are an important part of his governance of the nation and his legacy to it after he leaves office. He understands what is at stake and deeply appreciates the importance of restoring power to the political branches by appointing judges who appreciate the passive virtues. Thus, in addition to neutral merit and qualification, the Roberts nomination can also be seen as a triumph of the President’s ability to put his governing philosophy ahead of his short-term political interests. (Lo and behold, it turns out that, in this area, too, good policy is good politics, and the perceived sacrifice of short-term political interests was revealed as illusory.)

If this interpretation is correct — that the President made his decision to appoint Justice O’Connor’s replacement based solely on merit and judicial philosophy in the long-term best interests of the nation — then it seems reasonable to suppose that he will make the same decision the same way the second time around. Nothing says this will point him to another white male, as the short list of the country’s best available conservatives surely includes women and minorities, but it means the white males won’t be categorically excluded from consideration either.

If that’s so, here are a couple of new names to keep your eye on as dark horse candidates if the President tries to replicate the Roberts model: Steve Colloton, a judge on the Eighth Circuit, and Jeff Sutton, a Judge on the Sixth Circuit. Both are brilliant former Supreme Court clerks; both have long records of public service, Colloton primarily as a prosecutor and Sutton primarily as a Supreme Court and appellate advocate; both are widely respected, right to left, with plenty of supporters among Democrats of good faith; both are supported by influential home-state Republican Senators on the Judiciary Committee; both are young men in their mid-40s; and both were originally appointed by this President and thus are seen as part of the Bush judicial “family.” Some controversy attended Judge Sutton’s confirmation, because he is closely identified based on his work as an advocate with the Supreme Court’s new federalism jurisprudence. Colloton sailed to confirmation with no problems at all. Whether their time is now or in a future Republican administration, they’re worth adding to the evolving lists of credible candidates.

RE: Mel Martinez


He is, of course, a trial lawyer. I can imagine the Manhattan Institute op-eds coming out of that nomination?

“Hurricane Roberts”


Kennedy on Roberts & Katrina


In today’s Washington Post:

“What the American people have seen is this incredible disparity in which those people who had cars and money got out and those people who were impoverished died,” Sen. Edward M. Kennedy (D-Mass.) said in an interview . The question for Roberts, he said, is whether he stands for “a fairer, more just nation” or for “narrow, stingy interpretations of the law to frustrate progress.”

“divided and confused”


Fred Barnes’s spot-on description of Dems.

“The right wants a woman”


I feel like The Hill has written me off.

Mel Martinez for SCOTUS


John Cornyn is the senator who gets the press mentions, but this might not be completely crazy.

The Chairman, By the Way


Grabbed Judge Roberts to guarantee Specter some extra airtime Tuesday, bringing up the idea of Roe as a “superprecedent.” Roberts isn’t talking to the press, so we don’t really know if the nominee laughed.

Thank You, Chairman, for Agreeing with the Quota-on-the-Court Folks



“It is desirable to have a balance on the court. And two women, I think, are a minimum,” Specter said. “My preference would be to see that kind of diversity maintained, but I don’t believe anybody ought to tie the president’s hands.”
This, though, comes as no surprise.

It’s Not Just Women Who Should Be Freaked By John Roberts, You See


But women of color, more narrowly, I’m told this morning by Another white male, he is! Figures, nominated by that evil white man in the White House who caused the hurricane just to hurt blacks.

(That’s the hurricane John Roberts played no small role in.)

“But did anyone ever seriously mention a woman of color for the job?”

No. No. I know what you’re thinking.

“Controversial ideologue Janice Rogers Brown was floated by some extreme conservatives, but she was never a real contender given that her nomination to the Court of Appeals set off a national fight over the filibuster–a time-honored means of challenging the majority party through extended debate–and almost shut-down the U.S. Senate.”

You extremist! If you’re a white male just write yourself out any possibility of being named to the Court. I think I may be talking to you Mike Luttig. Yeah, you, too McConnell. Near everybody’s Girl Crazy now.

But, as my sistas note, Janice Rogers Brown doesn’t count. As a woman or as a “woman of color,” is my translation.


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