Bench Memos

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Red Herring


Here are two reasons why the hand-wringing over Roberts and religion is misplaced.

One: Does anyone doubt that if Roberts were pro-choice that we would not be having this discussion? If Roberts said tomorrow that Roe was safe, do you think any liberal senator will say: “Now hold on there, Judge. Are you basing that on your religion? Some Catholics favor permissive abortion because, they say, the soul is not infused until some time well after conception–maybe forty days later. If you think that, Judge, I’ll have to vote against you for ignoring the separation of church and state.”

Do you think any conservative senator will say it?

Two: Would someone please identify one moral norm that might be involved in some decision a Justice Roberts would be called upon to render, but that moral norm cannot be known by unaided reason? Does not John Roberts’s
own Catholic Church say of the norms thatmight be so implicated: They are
written on the human heart? They are naturally knowable? They do not
depend upon revelation or religious authority? They are available to all reasonable persons–religious or not? In fact, name one moral norm that a Justice Roberts might apply in a case that was not, until a generation or a little more ago, the common morality of America and of America’s law?

What exactly, then, is it about Catholicism that we should be so worried about?

Roberts, Religion, and Recusal


Over at “Mirror of Justice,” Professor Steve Bainbridge has a detailed, definitive discussion and analysis of the “Roberts’s religion” dust-up. Bainbridge is as clear and perceptive as Hitchens is (on this issue) misguided and as Cuomo is embarrassingly confused.


Roberts, Quotas, and the Voting Rights Act


Law professor Richard L. Hasen argues in a Los Angeles Times op-ed today that Roberts’s DOJ records from the early 1980s show that he was “hostile to expansive voting rights legislation.” What Hasen means by this inflammatory phrase is that Roberts and the Reagan administration opposed a change to section 2 of the Voting Rights Act–the adoption of the so-called “effects” test–on the ground that it would establish a racial quota system for electoral politics, “a notion we believe is fundamentally inconsistent with democratic principles.”

Hasen does not make any effort to refute Roberts on the merits. Instead, he asks: “How many fewer minority legislators would be in office in Congress and in state and local legislatures if Roberts’ position had prevailed in 1982?” Similar questions can, of course, be asked of any racial quota. Posing the question hardly suffices to resolve the broader question of the legitimacy of quotas.

Hasen also raises the specter that, if/when Congress reauthorizes the preclearance provisions of section 5 (which are set to expire in 2007), Justice Roberts might rule that the reauthorization is unconstitutional. Why, Hasen asks, given Roberts’s views on section 2, would “he look charitably on a renewed Section 5″? The answer, as it happens, is provided in the very documents that Hasen has been reviewing. As Roberts explained in 1982, section 2 and section 5 “are addressed to different problems. It makes sense to have an effects test [in section 5] for election law changes in certain areas which suffer from a history of election law discrimination. Section 2 is not so limited.”

On civil rights, the real battle between Roberts and his critics was and is over racial quotas. Scaremongering, distortions, and misplaying the race card should not be allowed to obscure that.

Roberts’s documents show that he embraced the “bedrock principle of treating people on the basis of merit without regard to race or sex.” The Left’s vision, as Roberts recognized way back then, treats people not as individuals but as members of castes or social groups and focuses “on advancing particular groups as groups.”

Girl Crazy


My latest syndicated column up elsewhere on NRO is on the nutty it-should-have-been-a-chick post-Roberts announcement cries–which I would have ignored if it weren’t coming from supposedly serious people (Sandra Day O’Connor, United States senators).

For the record: Most of the hate mail I’ve gotten about it has come from men. Trying too hard to please the wrong women, if you ask me.

“High Court Nominee Sides With Restraint”


This, my friends, is the headline so very many who voted for George W. Bush this fall were yearning for (some lusting).


A Successful Day at PFAW


Orrin Kerr:

Congratulation to the People for the American Way for getting their entire collection of John Roberts talking points into a single “news” article in the Legal Times.

Dems & Docs: Go, Lanny!


From The Hill:

The push for documents, however, could have its share of pitfalls for Democrats, especially if they are perceived as overreaching in what they demand from Roberts, other Democratic strategists noted.

“Arguing over whether or not he has to turn over every memo that he wrote in the Justice Department in the Reagan administration … is what I would describe as an instinctively partisan issue that has nothing to do with what the American people care about,” said Lanny Davis, a former special counsel to President Clinton who is now a lobbyist with Orrick, Herrington & Sutcliffe.

Roberts Answers


Here’s his Q&A with the Senate Judiciary Committee, on the NYTimes site–part 1 & 2. And here’s the Times write-up. (Here’s an alternative link to the questionaire.)

It Takes a Village


I just checked out Kathryn’s link to the PFAW ad. Yes, there is a picture of a guy or two in hard-hat regalia. And I take it on faith that they are demanding Roberts’ memos. But, no, Kathryn, those are not real construction workers. (Who would expect them in a PFAW ad?) They are the
Village People.

Breaking News


WASHINGTON (Reuters) – As a young aide to Attorney General William French Smith in the early 1980s, Supreme Court nominee John Roberts embraced the conservative Reagan administration’s efforts to limit judicial power and certain civil rights remedies, according to memos released on Tuesday.
Translation: He did his job!

Translation: Slow news day.

Roberts and Catholicism


E.J. Dionne Jr’s op-ed in the Washington Post today argues in favor of questioning John Roberts on how his Catholic faith might affect his judicial decisionmaking. Here’s the most telling passage:

“Former New York governor Mario Cuomo is, like Kerry, a Catholic Democrat who has tangled with his church’s leaders on the politics of abortion. Cuomo wondered during a recent phone conversation how those bishops who tormented Kerry would react if Roberts said that his religious views would not affect his rulings on abortion cases. To defend such a stance by Roberts, Cuomo said, ‘the bishops who went after Kerry would have to say that it’s different for a judge, but that would be very hard to explain.’ Indeed.”
“Indeed”!? Surely American bishops can be expected to understand and to explain the elementary point that judges, unlike legislators, are bound to determine the meaning of the law, not to engage in policymaking. The fact that American bishops have not criticized Scalia and Thomas for failing to adopt a “pro-life” reading of the Constitution amply testifies to the point.

Privilege Claims


This Washington Post story is very misleading in its downplaying privilege claims differences between the Clinton and Bush dministrations. The Clinton administration frequently misused attorney-client privilege and executive privilege to conceal evidence from criminal investigators — a matter settled by U.S. v. Nixon during Watergate and subsequently enforced against Clinton by the Eighth Circuit. (Incidentally, I find aspects of U.S. v. Nixon problematic, but that’s not relevant here.) Among other things, Clinton was trying to prevent law enforcement from questioning several of his White House staffers who were indeed government lawyers, but who were also assisting Clinton in his personal capacity in the context of a criminal investigation. (Moreover, there’s a crime-fraud exception to the privilege, which was also relevant in the Clinton case.) Clinton even tried to concoct a new privilege — the Secret Service Protective Function Privilege — which was also rejected by the courts.

The Los Angeles Times the other day attempted to make the same point as the Post, drawing a false comparison between the Clinton and Bush Administrations. Clinton was attempting to protect himself from allegations of obstruction and perjury by asserting privilege claims belonging to the executive branch; Bush is trying to protect the constitutional prerogatives of the executive branch in the same manner of most of his predecessors, bar Clinton.

Construction Workers Demand


the release of Roberts DOJ documents!! (See PFAW ad.)

Trying to Be Adult About This


Senate Dems say they won’t take out the Bolton appointment on Roberts.

I’m Not Looking to Pick on Arlen Specter or Anyone Here, But...


…what exactly is the point of waiting all these weeks before the Roberts hearing starts? There will be plenty of e-mails where that Smeal one came from–nice rallying tools. Wouldn’t August 8 hearings make much more strategic sense?

He’s Bork I Tell You!!!!


An e-mail that went out from the Feminist Majority last night:

Dear Feminist Activist, [That's me!]

The coalition opposing John Roberts for the Supreme Court is growing. Leading in the opposition to Roberts are women’s groups, convinced from his record he will vote to reverse the right to privacy and Roe v. Wade, and he will undermine federal protections for women’s clinics from violence. Among the groups opposing Roberts are the Feminist Majority, the National Organization for Women, NARAL Pro-Choice America, the National Abortion Federation,, National Council of Jewish Women, National Coalition of Persons with Disabilities, Rainbow PUSH Coalition, Americans United for Separation of Church and State, the National Latina Coalition for Reproductive Health, ADA Watch, and the Religious Coalition for Reproductive Choice.

What Is Roberts Hiding?
The White House has now released Roberts’ files from when he was in the Reagan Administration. Despite demands by Democratic Senators, the White House still refuses to release papers from when Roberts was deputy solicitor general under the George Bush, Sr. from 1989 to 1993. During this time, he was the co-author of a brief that said Roe v. Wade was wrongly decided (Rust v. Sullivan) and he defended Operation Rescue and a convicted clinic bomber (Bray v. Alexandria).

In a front page story today, the Washington Post reports that after carefully studying the released papers from his Reagan days that Roberts was in the “the vanguard of a conservative political revolution in civil rights, advocating new legal theories and helping enforce the Reagan administration’s effort to curtail the use of courts to remedy racial and sexual discrimination.”

The papers just released reveal Roberts was for narrowly construing women’s rights and civil rights. He was for limiting racial integration via busing, and would narrow Title IX and affirmative action. For example, in a memo to the attorney general in August 1982, Roberts said he agreed with a decision by a federal district court that limited Title IX, the landmark 1972 law prohibiting sex discrimination in federally funded education. Roberts argued Title IX should only apply to specific programs receiving federal aid, not entire universities. This argument was used by the Reagan Administration in Grove City v. Bell a 1984 US Supreme Court decision that gutted Title IX (which feminists led the fight to reinstate with the Civil Rights Restoration Act of 1987).

Roberts’ Selective Amnesia, Or the Meaning of the Word “Member”
Roberts has been linked to the ultra-conservative Federalist Society, a right-wing law group. Although Roberts says he has no memory of belonging to the Federalist Society, his name is listed in the 1997-98 leadership directory as a member of the steering committee of its Washington chapter. Other members of the Federalist Society, which does not release its membership lists to the public, include former Supreme Court nominee Robert Bork, former Christian Coalition president Donald Paul Hodel, Senator Orrin Hatch (R-UT), and Edwin Meese, a trustee of the right-wing Scaife Foundation, and past Solicitor General Theodore Olson. Al Ross, president of the Institute for Democracy Studies (IDS), provided the Federalist Society leadership directory to the Washington Post. The White House had denied reports that Roberts was a member, and had pressured news outlets to issue retractions. Even after the directory was revealed, the White House quibbled over whether Roberts was a “member.”

We will keep you updated on the Roberts fight. Women, who have the most to lose, must be the strongest voice in stopping Roberts. This time, for once, we must not be ignored.

Add your voice to ours by contacting your Senators and the Senate Judiciary Committee today and urging them to thoroughly question Roberts on the right to privacy, women’s rights, and civil rights.

For Women’s Lives,

Eleanor Smeal
Feminist Majority

Media Distortions of Roberts’s Executive-Branch Record—Part V


I’ve just reviewed the August 1981 memo from Roberts to the Attorney General that today’s Washington Post article (which I’ve critiqued in the two previous posts in this series) discusses. That memo concerns a meeting request made by Arthur Flemming, the chairman of the U.S. Commission on Civil Rights.

The Post’s discussion of the memo is extremely one-sided. It says that Roberts “derided” a report that Flemming passed along, but there is nothing in his language that is mocking. The Post clips its quotations from the memo in a manner unfavorable to Roberts. In its apparent effort to obscure that the battle is largely over quotas, the Post drops the word “quotas” from the memo’s reference to “the purported need for race-conscious remedies such as busing and affirmative action quotas.” Likewise, it fails to note that the “serious criticism” that Roberts says the report “is subject to” is its failure “to recognize the actual effect of race-conscious remedies,” including the fact that busing “has been ineffective in redressing racial imbalance.”

It is, of course, possible that the Post reporters are merely sloppy, but, as my previous posts and essay have documented, the evidence of bias seems very strong.

So, Wait. Are You Saying That He Is Conservative?


From the Media Research Center:

NPR’s Nina Totenberg, who has tagged Supreme Court nominee John Roberts as “very conservative,” “very, very conservative” and “very, very, very conservative,” as well as “a really conservative guy,” “a hardline conservative” and “a clear conservative,” to say nothing of being “a conservative Catholic,” on Inside Washington over the weekend relayed that after she “spent five hours reviewing all of his documents from when he worked in the Justice Department,” she “was actually quite surprised at how, how very, very conservative he was.” Apparently, she didn’t listen to herself.

Re: Left Behind


I posted on Saturday morning some predictions that an astute observer had passed along on Friday morning. Here’s the observer’s postscript:

As predicted, the Left’s strategy for attacking John Roberts is now coming into much clearer focus — and it will be even more personal and vicious than previously anticipated. In a weekend speech to Leftist legal elites, John Edwards derided Roberts as “a partisan for conservative causes” opposed to voting rights and remedies for discrimination on the basis of sex and race. Edwards, of course, voted to confirm John Roberts before he came out against him. Not to be outdone, the NAACP Legal Defense Fund’s Elaine Jones gave an even more inflammatory speech linking Roberts to the authors of Dred Scott and to John W. Davis, the New York litigator who opposed desegregation in the Brown v. Board of Education Supreme Court arguments. And, magically on cue this morning, the Washington Post features an extended “analysis” of Roberts’ role in “incendiary” civil rights policy disputes during the Reagan Administration.

The Post’s article makes it clear that the attempt to defeat Roberts by re-litigating the Reagan civil rights record is well underway. But the Left can only prevail in this effort if conservatives stand by and do not remind the public about the abuses and injustices the Reagan era lawyers sought to address — reverse discrimination against qualified non-minorities, expansive busing orders that were opposed by minority and non-minority parents alike, runaway liberal judges, civil rights extremists like Mary Frances Berry, and more. If allowed to dictate the boundaries of the debate, the Left will head to the gutter, redefining Roberts as an anti-civil rights extremist, instead of the principled jurist just about everyone perceived him to be a few weeks ago.

Media Distortions of Roberts’s Executive-Branch Record—Part IV


Let’s take a further look at this hit job in today’s Washington Post by reporters R. Jeffrey Smith, Amy Goldstein and Jo Becker.

The opening sentence of the article asserts that Roberts was part of a conservative civil-rights vanguard that was “advocating new legal theories and helping enforce the Reagan administration’s effort to curtail the use of courts to remedy racial and sexual discrimination.” (Emphasis added.) This sentence assumes the very issue in dispute: whether the mere existence of disparate results establishes “discrimination” that calls for a governmental “remedy”. Those who advocate racial quotas say (or assume) it does. Those like Roberts and Martin Luther King Jr. who embrace, in Roberts’s words from the time, the “bedrock principle of treating people on the basis of merit without regard to race” believe otherwise. Neither this principle nor the other main “legal theor[y]” embraced by Roberts and company—that the courts and the administration should enforce the laws as written and not impose their own policies—was, in 1981, new, though they both had been widely disregarded by the Carter administration (and are still obviously in disfavor on the Left).

I have already addressed the Post article’s mistaken charge that the Reagan administration sought to narrow, rather than preserve, the reach of the Voting Rights Act of 1965. Similar distortions abound.

For example, in support of its claim that Roberts tried “to limit the use” of the sex-discrimination provisions of Title IX, the article asserts that “Title IX had been interpreted to mean that all of a school’s funding could be cut off if it discriminated at all.” But Title IX in fact stated only that funding could be terminated “to the particular program, or part thereof, in which … noncompliance has been … found.” And, although the Carter administration sought to eviscerate this limiting language, in May 1982 a Supreme Court opinion (in North Haven Board of Education v. Bell) written by Justice Blackmun and joined by (among others) Justices Brennan and Marshall stated that “an agency’s authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitation of” of Title IX. Four months later, Roberts soundly relied on this Supreme Court opinion in explaining why the United States should not appeal a case involving the University of Richmond’s athletic program, which did not receive federal funds. Yet the Post reporters quote a Title IX activist’s false claim that this case was “revolutionary.”

The Post’s account of Roberts’s recommendation that the United States not intervene in a sex-discrimination case against the Kentucky prison system is equally shoddy. The article neglects to mention Roberts’s first two reasons for not intervening—(1) private plaintiffs were already bringing suit and there was no showing that the federal government’s involvement was needed, and (2) the case involved an expansive equal-protection theory and judicial interference with state prisons. On the third ground—the prospect that equal treatment could mean “no programs for anyone”—the article quotes a left-wing activist who complains that Roberts “basically implies that it would be too expensive to ensure equal treatment for women prisoners” and lets “financial interest … trump equality.” But Roberts’s point is obviously not that he thinks that it might be too expensive but that the state of Kentucky might well so conclude—in which case a litigation victory would be pyrrhic.

I am still awaiting documents that bear on some of the other assertions in the Post’s article. So please don’t assume that the fact that I haven’t addressed something in that article means that it’s accurate.


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