Bench Memos

NRO’s home for judicial news and analysis.

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.

Roberts and Judicial Restraint


The Los Angeles Times features today this op-ed of mine on the Roberts nomination, titled “A model of judicial restraint, not activism”



Tim Russert just said on The Today Show that he thinks the White House will not announce the O’Connor replacement until after John Roberts is confirmed, the thinking being there is no distraction from Roberts. So much for my he-should-announce-right-away theory.

Roberts & Katrina


It’s official: The Left will use Katrina against John Roberts. Cornyn’s being polite when he calls it “a stretch.”

When the Dust Settles


When the dust settles from the weekend whirlwind, it should be clear that the Court is not on the verge of any dramatic transformation. I do not mean by this observation to dishonor or disparage Chief Justice Rehnquist and his legacy. On the contrary, it is precisely because the nominee to the new vacancy that has developed cannot be markedly better than Rehnquist in his voting record that the transformation that many of us hope for and the Left fears is not around the corner.

Let me explain. Before last weekend, it appeared that Roberts would replace O’Connor. Now Roberts and a nominee-to-be-named-later will replace O’Connor and Rehnquist. If one ignores for vote-counting purposes the irrelevant fact that Roberts will be casting his vote as Chief Justice rather than Associate Justice, and if one makes the reasonable-best-case assumption that the nominee-to-be-named-later will vote by and large as Rehnquist would have, then it should be evident that this past weekend’s developments do not portend any change in the Court’s voting from what we expected last week.

Stated somewhat differently, even if Roberts and the next nominee vote like Scalia and Thomas, Kennedy will remain the swing vote on the Court.

Real transformation—building a Court that is faithful to the Constitution and that respects the right of the people to govern themselves through their elected representatives—will come only when Stevens, Kennedy, Souter, Breyer, or Ginsburg is replaced by a proponent of judicial restraint. Of course, the existing vacancies need to be filled properly in order to make that possible.

Delay Is Still Futile


Now seems a useful time to remind Senate Democrats that delaying the confirmation of Justice O’Connor’s successor cannot be expected to yield the Left any advantages, notwithstanding the fact that O’Connor’s resignation is effective only upon her successor’s confirmation and notwithstanding the likelihood that the Left will dislike her successor more intensely than it disliked her.

As I explained more fully here, even if O’Connor were to take part in oral arguments in controversial cases, she would not be able to participate in the final decision in any case rendered after her successor’s confirmation. Because controversial cases will take many months after argument, it is a virtual certainty that in any case in which O’Connor’s vote were decisive, delaying her successor’s confirmation would serve merely to disrupt the Court by requiring that the case be re-argued.

For this reason and for the reasons that led her to conclude that she should resign, it is far from clear that O’Connor would have any interest in taking part in any oral arguments. As my former OLC colleague Marty Lederman reminds us, Justice Thurgood Marshall initially submitted a resignation, like O’Connor’s, contingent on his successor’s confirmation, but removed the contingency when the nomination of Clarence Thomas encountered delay. O’Connor might see fit to take a similar action, especially if she were to discern that Senate Democrats were using the contingency in her resignation as a reason to delay her successor’s confirmation.

Why Roberts as Chief Justice?


Amidst—and with profound respect for—the celebration of Chief Justice Rehnquist’s life and legacy and the mourning of his loss, I would like to reflect briefly on the President’s new, and excellent, nomination of John Roberts to succeed his former boss as Chief Justice.

This nomination is interesting because the short-term political arguments against it are substantial. Although the initial nomination of Roberts to replace O’Connor was generating more Democratic opposition than some initially anticipated, it was proceeding on track. A cautious approach would have let it proceed. Instead, the new nomination has already led to some delay in the hearing, and it will also give Senate Democrats some seemingly neutral (but spurious) arguments to hide behind in opposing Roberts.

The new nomination also re-opens the matter of replacing O’Connor. Although the arguments for “maintaining the current balance” on the Court are contrived and intellectually bankrupt, they undoubtedly have some political sound-bite appeal. The President impressively ignored these arguments when he first nominated Roberts, and he deserves our trust that he will do so again and select the candidate he regards as best qualified for the position.

Why, then, did the President make this new nomination? My guess is that the White House’s Plan A from months ago was premised on a Rehnquist resignation and that Roberts was the President’s leading contender for Chief Justice. With Rehnquist’s death this past weekend, the President simply reverted to Plan A—and, by replacing Rehnquist with one of his former clerks, also paid special honor to the Rehnquist legacy. A collateral benefit, of course, is that the pool of candidates regarded as suitable for the now-open Associate Justice position is significantly larger than the pool would have been for the Chief Justice position.

If my speculation is correct, this is further encouraging evidence that the President makes these decisions with the long term in mind and bases them heavily on principle rather than politics.

Not Brown


Orin Kerr doesn’t think Bush will nominate Janice Rogers Brown. He explains why here.

Of This, I Have No Doubt


From a National Organization for Women e-mail:

Dear Activists:

With the death of Chief Justice William Rehnquist, the Senate Judiciary Committee has postponed the Roberts hearing. The protests for September 6 & 7 are cancelled. As soon as the hearing schedule is announced, we will develop a new protest schedule.

In the meantime, tell everyone in the DC Area to sign up for NOW’s DC-Zaps so that they can be informed about local actions! They can sign up here:

And don’t forget to visit our Save the Court page:

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