Bench Memos

NRO’s home for judicial news and analysis.

Lack of Thought at Think Progress


There’s an old saying that when a lawyer has the law on his side, he should pound the law. When he has the facts on his side, he should pound the facts. But when neither law or facts are on his side, the lawyer should pound the attorney on other side. Think Progress’ Judd Legum has this routine down pat, as he demonstrates in his string of ad hominem attacks on my colleague Ronald Rotunda. Today Rotunda had an op-ed in the Washington Post defending Judge Roberts against phony charges that he violated judicial ethics when he failed to recuse himself in the Hamdan case. Rather than address the merits of Rotunda’s argument, Legum attacks Rotunda’s ethics (as he has before). Legum makes several errors in the process of impugning the integrity of a well-respected scholar, yet fails to offer any substantive critique of Rotunda’s views. First, he glosses over the byline to Rotunda’s article, which makes clear that, contrary to Legum’s charge, he did not work on “the exact subject of the case in controversy.” Second, while quoting a Legal Times story on Rotunda’s alleged conflict, Legum fails to note Rotunda’s response, published in the September 5 Legal Times in which he makes clear that a WSJ report he worked on military commissions was wrong: “I’m proud that I was able to work for my country. While I was at the DOD, I was not assigned to the Hamdan case. I don’t know if the DOD has any official policy regarding judicial recusal, but I know I didn’t work on that, either.” In other words, the source of the alleged conflict is simply not there. Over the course of several posts seeking to impugn Rotunda’s integrity, Legum has yet to address any of the substantive points made in Rotunda’s op-ed or his 15-page opinion letter to Senator Arlen Specter on the recusal question. As Rotunda wrote the Legal Times ” where I worked can’t affect the untidy little fact that my opinion merely quoted the case law. That exists no matter where I used to work, and it undermines any charge that Judge Roberts violated the federal recusal statute.”

Don’t Forget about Judge Owen


It strikes me that there is, in addition to Judge Edith Jones, (at least) one more possible nominee who not only responds to the call in some corners for another woman on the Court, but also appears to be a solid choice on the merits, both in terms of credentials and philosophy: Judge Priscilla Owen.
That said, I am inclined to agree with what other Bench Memos bloggers have been saying, namely, that a President who campaigned on judges, and who got votes by praising Justices Scalia and Thomas, should not (and, in my view, will
not) give in to silly calls for “moderates” or “balance-preservers.”


WSJ on Judge Luttig


Somehow I retain the capacity to be shocked by lazy and sloppy journalistic assertions. Take this example from today’s Wall Street Journal story (by Jeanne Cummings and Jess Bravin) on the Supreme Court vacancies: Judge Luttig of the Fourth Circuit, the story nakedly asserts, “has been outspoken against abortion rights.”

The only problem with this assertion is that no evidence exists to support it. Judge Luttig has issued rulings for both sides in the abortion battle and, in so doing, has always carefully limited himself to the judicial role. Various pro-abortion groups have been “outspoken against” Judge Luttig for upholding certain democratically enacted regulations of abortion, but it is simply not accurate or fair to assert that he has been “outspoken against abortion rights.”

As I have previously discussed regarding Judge Roberts, there is zero reason to believe that a Justice Luttig would adopt a “pro-life” reading of the Constitution, under which permissive abortion laws would be unconstitutional.

Has A Disaster Ever Worked So Easily into Talking Points?


An e-mail just out from the Feminist Majority:

Dear Feminist Activists

Roberts’ nomination to Chief Justice of the Supreme Court is the latest outrage of the Bush Administration and we must vigorously oppose it. URGENT ACTION NEEDED

Step 1: Please give an emergency contribution to the Feminist Majority to Save the Court for Women’s Lives.

Step 2: Email your Senators to urge them to oppose Roberts for Chief Justice.

Step 3: Learn how you can volunteer to Stop Roberts.

Our opposition to Judge Roberts has only grown. As an associate justice it was serious enough that Roberts would be a solid vote against women’s right and civil rights. As Chief Justice, Roberts would be in the nation’s top judicial leadership position to roll backwards the legal gains made by women and people of color over the past 40 years. His record indicates he would greatly weaken anti-discrimination statutes in employment and education; ignore wage discrimination; gut Title IX; water down voting rights; cut back affirmative action; eliminate the right to privacy (which he has mocked); and reverse Roe v. Wade.

As the Gulf Coast and New Orleans tragedy reveals, our nation still has a deep race and class divide. We must have a federal judiciary that will not unravel the legal gains and guarantees decades of civil rights and women’s rights struggles have produced.

We again call on President Bush to choose a moderate woman jurist to fill Sandra Day O’Connor’s historic seat. He did not win a mandate to appoint right-wing judges who would reverse women’s progress. Americans deserve to know who the President is appointing for both vacancies before a vote occurs.

Finally, the Bush Administration must release documents and papers from Roberts’ years as deputy solicitor general. Women have a right to know where this nominee stands. The stakes for a generation of women are too high for the Senate to confirm a stealth nominee.

We need your help more than ever. The nation is rightly focused on the Hurricane Katrina tragedy, what everyone can do to help the hurricane survivors, and the shockingly botched federal rescue and relief efforts. We also must work hard to prevent a right-wing take over of the Supreme Court. With two vacancies and a Republican-dominated Senate, the fight is extremely hard.

Please, at this critical moment in history, consider making an emergency contribution to the Feminist Majority. We will immediately put your contribution toward organizing grassroots efforts against Roberts, and preparing for the potential fight over Bush’s nominee to fill Justice O’Connor’s seat.

Women, who have the most to lose, must be the strongest voice in the Supreme Court fight. The stakes are too high to sit on the sidelines.

Take action today – email your Senators to urge them to vote NO on Roberts for Chief Justice.

And, sign up to volunteer to Stop Roberts. We especially need people willing to participate in demonstrations against Roberts in Washington, DC during his hearings. But we will also provide ample opportunities to take action online and in your own communities.

For Women’s Lives,

Eleanor Smeal
Feminist Majority

No Chief Justice Scalia


I’ve been surprised that some folks seem to think that Justice Scalia might be the least bit disappointed at not being named Chief Justice. Although I claim no inside knowledge, it seems to me highly implausible that Scalia would have had any particular interest in being Chief Justice. As a matter of duty, he would have accepted the position if asked, but he would not have welcomed the administrative and other burdens that being Chief entails (not to mention the bother of another confirmation hearing). The idea that Scalia has been engaging in some sort of “charm offensive” to position himself to be named Chief is simply silly.

Those who are regretful on Scalia’s behalf should also have in mind that, as a matter of crude life-expectancy statistics, Roberts can be expected to serve as Chief for about two decades longer than Scalia could have (since he is nearly two decades younger).






David Kusnet, a veteran of the campaign to smear Robert Bork, offers largely good advice to Democrats on how to deal with John Roberts. 1) “[Q]uestioning whether his Catholic faith would influence his decisions on the bench would be wrong in every way.” 2) “Democrats would also do well to avoid elaborate explorations of Roberts’s views on such legal theories as ‘original intent’ and ’strict construction,’” since these topics could “prompt debates about liberal activism.” 3) Democrats should try to paint Roberts as an enemy of workers, someone who would use limits on congressional power over interstate commerce to remove their protections. 4) They should use his memos from the 1980s to paint him as someone with “more passion against grammatical errors than social ills.” The perception that Bork was more concerned about abstractions than people, he writes, was fatal. I’m not so sure that the commerce-clause attack will work; it seems pretty easy for a justice to explain that the Supreme Court hasn’t come close to undoing any worker protections and would not be likely to.

Me, Too


Ramesh says that he “agree[s] with almost every word” of Bill Kristol’s article today. (Ramesh supplies the link). I agree with Ramesh: Kristol gets it just right. In a Roberts-for Rehnquist swap, conservatives — especially those who are most keenly concerned about secularism, abortion and the gay agenda — cannot achieve a net gain, and may get less than a wash. After all, Rehnquist dissented in Roe and his willingness to overturn it never slacked. Now is the time for the President to put the pedal to the metal. Now is the time for Bush to nominate a conservative whose philosophical commitments are (as the dead-tree NR editorial on Roberts put it) more overt” than are Roberts’. Al Gonzales is surely not of that description, but I can think of two other Texans who are: Edith Jones and Emilio Garza.

Judicial Choices


Justice Ruth Bader Ginsburg on the Chief


Chief Justice William H. Rehnquist was the fairest, most efficient boss I have ever had. . . . In his leadership of the U.S. Judiciary and his superintendence of the Supreme Court, William H. Rehnquist used to great effect the tools Congress and tradition entrusted to him. A plain speaker without airs or affectations, the chief fostered a spirit of collegiality among the nine of us perhaps unparalleled in the court’s history. He regarded an independent judiciary as our country’s hallmark and pride, and in his annual reports, he constantly urged Congress to safeguard that independence.

“On the obligation key to judging, he cautioned that a judge steps out of the proper judicial role most conspicuously and dangerously when the judge flinches from a decision that is legally right because the bottom line is not the one ‘the home crowd wants.’ I held him in highest regard and affection, and will miss him greatly.”



I agree with almost every word of his article today.

Public Supports Roberts


Gallup reports that Americans support the confirmation of Judge Roberts 52 percent to 26 percent. 22 percent of poll respondents had no opinion.

“To Know John Roberts Jr., Think Ronald Reagan”


Kennedy Wants to Know Now


Sen. Edward Kennedy, D-Massachusetts, said, “Before the Senate acts on John Roberts’ new nomination, we should know even more about his record, and we should know whom the president intends to propose to nominate as a replacement for Sandra Day O’Connor.”
–making it sound like each candidate won’t be looked at on his own merit.



The Ediths: Take Two


Strategically, it makes sense for the President to announce his nominee very shortly after Judge Roberts is confirmed as Chief Justice. As Ramesh has argued over on The Corner, it will be easier to confirm strong nominees seriatim than with multiple vacancies at a time. Given the White House just finished reviewing potential candidates before announcing Roberts, it should be easy to settle on a nominee. If I were asked to make a prediction, I’d say Edith Brown Clement is the most likely nominee, with Edith Jones and Priscilla Owen also making the short-list. RedState’s Erick hears similar things.

Tribe on Rehnquist


Harvard’s Larry Tribe on William H. Rehnquist, “Gentleman of the Court.” “While it may be too soon to assess the chief justice’s enduring impact, it is not too soon to reflect on why so many who served with him as colleagues, worked for him as law clerks or appeared before him as advocates are already prepared to render a verdict of greatness and to tell the world how deeply his passing is mourned.”

It’s to Laugh


Here’s a serious contender for most disingenuous sentence published today, from a New York Times editorial about the nomination of John Roberts to be chief justice: “Like the president, this page worries about activist judges who might use the Constitution as a cloak for their desires to remake society in the mold of their own political preferences.”

Who are these guys and what have they done with the editors of the Times?

The Age Factor


ConfirmThem has a breakdown of potential nominees by age.

Shaky Ethics Charge


My George Mason colleague, Ronald Rotunda, dismisses the phone ethics complaint against Judge Roberts for failing to recuse himself after interviewing with the White House in today’s Washington Post.


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