Bench Memos

NRO’s home for judicial news and analysis.



RE: Luttig


My Luttig example doesn’t apply now, given Gerry’s last post.


Arlen Specter


has asked NARAL to abort the “blatantly untrue and unfair” ad.

Roberts on the Role of Judges--Overturning Wrong Precedent


In the April 2003 hearing on his nomination to the D.C. Circuit, John Roberts succinctly explained that the Supreme Court should accord no deference to wrong precedent: “[O]bviously if the decision is wrong, it should be overruled. That’s not activism. That’s applying the law correctly.” (p. 71)

The Left, by contrast, embraces a sort of Brezhnev doctrine in which the Court’s illegitimate power grabs in its favor are sacrosanct and any effort to overturn them is mislabeled as activism. Thus the bizarre “Nietzschean vision” (in Scalia’s apt phrase) of stare decisis set forth by the Court in Planned Parenthood v. Casey (declining to overturn Roe) but promptly abandoned by it in Lawrence v. Texas (overturning Bowers v. Hardwick).

While many on the Left will claim that Roberts’s general proposition is controversial, it is in fact elementary and flows directly from the justice’s oath of office. As the ultraliberal Justice Douglas put it, “A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.”

By the way, it has been thought that an exception to this general rule might be necessary for “decisions that have become so embedded in our system of government that return is no longer possible” (Scalia’s phrase). But any such decisions are, at best, extremely rare and, as I intend to show in an essay one of these days, are in fact demonstrably non-existent. Stated somewhat differently, I will explain how it is possible to overturn any wrong decision, constitutional or statutory, without causing any serious disruption.

Do I Have the Right URL?


Human Events looks like the Democrats’ anti-Roberts war room right now.


Answering the Questions


First, we know Roberts won’t answer all the Schumer-like questions asked him because no nominee has or would (Bork went further than any, but I doubt he would have taken all of Schumer’s bait). And Roberts’s advisors are repeatedly asserting the Ginsburg Rule, which I reject, as it is not a rule at all but a weak precedent for avoiding most questions put to the nominee.

I think Ramesh’s view will predominate as a practical matter among conservative (and most Republican) senators who seek specific answers about specific cases. They will vote for Roberts short of some debacle, and regardless of his unwillingness to answer a laundry-list of questions. So, I’m not sure what these senators seek to accomplish with a line of questioning that will prove unhelpful in discerning Roberts’s judicial philosophy.

Gerry’s position is certainly very logical, but I believe if he were a senator he would find himself voting against virtually every nominee, perhaps even a Michael Luttig if Luttig refused to answer Schumer-like questions. Gerry is extremely persuasive in setting forth the role of a senator, but the role of a nominee (especially a sitting federal judge) would, I believe, frequently conflict with his demands.

But this does go to my earlier (second) point, with which we agree (and I am not the only one to voice it), i.e., that the tactic of Republican presidents nominating individuals to the Supreme Court with thin records–which is, I believe, Gerry’s primary concern–should be denounced. It may well deny political opponents opportunities to attack a nominee, but it also denies the rest of us some certainty about a nominee’s judicial philosophy as well. It’s a big risk and one that, in the end, usually benefits the anti-constitutionalists.

Thanks for engaging.

Re: Linda Greenhouse on NARAL Ad


While I agree the Greenhouse piece is lame for burying the analysis on the anti-Roberts ad, it does deserve praise for finding liberals to criticize NARAL:

Frances Kissling, President of Catholics for Free Choice said she was “deeply upset and offended” by the advertisement, which she called “far too intemperate and far too personal.”

Kissling said the ad “does step over the line into the kind of personal character attack we shouldn’t be engaging in.”

She added: “As a pro-choice person, I don’t like being placed on the defensive by my leaders. Naral should pull it and move on.”

Former Acting Solicitor General in the Clinton Administration, Walter Dellinger, sent a letter to the Judiciary Committee yesterday saying ad was “unfair.” (Last night on ABC News, he said it was “misleading”)

Ramesh on Mark


Ramesh’s post makes me want to clarify my earlier response to Mark Levin, the one in which I dream of being a U.S. senator. Now I should like to dream that I have been nominated to the Supreme Court.

Ramesh would vote for Robert Alt, even if Robert refused to say much at his hearings. I am not sure if Ramesh is thinking exactly along these lines, but, sure, the important thing is for a senator to know somehow where a nominee stands on the issues that matter most. Then a nominee scrupulous of answering at a hearing can still be evaluated by the conscientious senator.

For example, someone as promiscuous in sharing his opinions about what constitutional law ought to be as . . . well, me, could say nothing whatsoever at his hearings, and still get an up or down vote from conscientious senators. No doubt at all where I stand on the issues. At least since my last Bench Memos post . . .

More About Making Cases


Here is a quick preliminary response to Mark Levin’s main challenge to those (such as myself) who call for broad questioning of a judicial nominee. The example at hand happens to be John Roberts. But Mark’s question transcends Roberts. Mark’s question has to do with what is generally permitted (under relevant judicial codes of conduct) and what is generally the responsibility of senators charged by the Constitution with a grave responsibility: “advice and consent” to lifetime appointments to the federal bench. He asks specifically what I would do if Roberts refused to answer a bunch of questions. I do not know what I would do. But I can say a bit about what I think a senator’s responsibilities are.

1. I have said before that if the relevant rules governing judges are as clear and as clearly applicable as (I think) Mark supposes they are–and if they clearly mean for someone in Roberts’ position to decline to answer–then Roberts should decline to answer.

2. I doubt very much they are so clear, though I have yet to study them with care.

3. If I were a senator I would refuse to consent to any nominee about whom I could not learn enough to conscientiously discharge my constitutional responsibility. If the reason is a nominee’s interpretation of prevailing judicial ethics, so be it: I still cannot consent. My responsibility as a senator is to follow the Constitution, and what I honestly believes it requires of me. It binds me at least as much as we are supposing prevailing judicial canons bind the nominee. And the Constitution is the supreme law.

4. If I were a senator I would judge that “name, rank, and serial number”
were not nearly enough for me to judge a nominee’s fitness, and so I would not consent to the appointment of such a nominee. A nominee’s training, character, competence, and commitment to honestly doing the job are necessary but not sufficient to garner the consent of at least this (hypothetical) senator. In other words, I do not think that the Constitution requires me to sign off on any competent lawyer who has good character. Not nearly.

5. In fact, the Constitution I swore to protect and defend when I took office has, in my conscientious judgment, some pretty definite things to say about some important matters. Let me be specific about the three leading issues in what some call today’s “culture war”: secularism, abortion, same-sex marriage. The first two have been imposed upon the people by the Supreme Court. These impositions have been grotesques distortions of the Constitution. The third is in the offing. Lawrence v. Texas signals that. If the Supreme Court imposes same-sex marriage upon the people, it too would be a grotesques distortion of the Constitution.

6. On the first two matters the Supreme Court has greatly harmed the common good of our society. On the third, they are poised to do the same.

Believing the foregoing to be true, I wonder just how it is that I–as a senator–would be living up to my responsibilities to the Constitution and to the people were I to say: “Mr. Nominee, you have told us nothing definite about what you think the Constitution says about secularism, abortion, same-sex marriage. At least, I do not know where you stand. Very well. I consent to your lifetime appointment to the Supreme Court. I pray you do the right thing there.”

For Mark


I’ll let Gerry handle your question about examples. Let me put in my own answer to the question: “[I]f Roberts used the canon of judicial ethics or impartiality as bases for refusing numerous Schumer-like questions, as I expect he will, would Gerry et al. continue to support his nomination or not?” My own answer would be: certainly. Let’s say Bush had nominated Robert Alt. (Now there’s an idea. . .) And let’s say, as long as I’m dreaming, that I’m a senator. I’ve asked Alt questions that he sincerely believes that he cannot in good conscience answer. His position is not a crazy one. People of good will and (generally!) sound mind can hold it. I disagree with his conclusion, and would probably say so as a senator. But that disagreement would not keep me from concluding that Alt’s confirmation would almost certainly improve the Supreme Court and, therefore, from voting for it.

The NYTimes Corrects the Record


Today the New York Times issued the following corrections concerning its coverage of John Roberts’s now-infamous dissent from denial of a petition for en banc review in Rancho Viejo v. Norton:

An article on July 22 about efforts by the White House to shore up support for Judge John G. Roberts Jr. among social-issue conservatives, a full year before he was nominated for the Supreme Court, referred incorrectly to his dissent in a case before the United States Court of Appeals for the District of Columbia Circuit, involving the arroyo toad. (The error was repeated in articles on July 23 and on Tuesday.) Judge Roberts said the court should rehear the case and consider whether the Interior Department had properly invoked the Endangered Species Act in this circumstance. He did not say the federal government lacked the power to block a California real estate development because it endangered the toad.

An article on July 20 about preparations by advocacy groups to oppose Judge Roberts also referred incorrectly to his dissent. He did not question the constitutionality of the Endangered Species Act.

Now it’s time for NPR’s Marketplace and Robert Reich–and all others who have made this mistake–to correct the record as well. These mistakes should never have occurred, as the meaning of Roberts’ opinion should be clear to anyone with a modicum of legal training who actually read the opinion. With luck, I won’t have to post on this issue again.

Re: Making the Cases


I appreciate Gerry’s response, especially the part where he agrees with me. But Gerry also writes, in part:

“Roberts is asked a question which he refuses to answer, and explains why he must refuse to answer it. His explanation goes beyond the grounds for refusing which I (among others on NRO) have criticized as being inadequately justified: a literal reading (if that) of canons of judicial ethics, notions that a prospective justice should say nothing that implies his stance in a pending or future case, etc. This broader explanation is, in fact, an adequate response to the question posed. If plausible (and more so if convincing), Roberts’s response, while not the type of “answer” the Senator sought, would be a bad basis on which to oppose him.”
I think this response demonstrates the problem with demanding answers to certain questions we’ve debated at length here. While I don’t expect Gerry or anyone else to present several examples of the kind of non-specific responses that would be acceptable, how about one, two, or three such examples? And once we get those examples, we can examine them. But this still doesn’t respond to my question: if Roberts used the cannon of judicial ethics or impartiality as bases for refusing numerous Schumer-like questions, as I expect he will, would Gerry et al. continue to support his nomination or not?

I understand Schumer and Boxer’s point, which is, as Richard Epstein argues, to create a circus atmosphere at the hearings in hopes of embarrassing Roberts. But that’s not satisfactory for us. It seems to me that asking Roberts questions that we know (generally) he won’t answer–because of the cannons of judicial ethics and concern for impartiality–is folly.

Making the Cases


Mark Levin’s most recent post (Making the Case) repays careful re-reading.

In the first paragraph he makes the point that, if Senators may legitimately ask about all sorts of things, then they might well be justified in opposing Roberts should he refuse to answer. He suggests that there is a tight symmetry between what they may ask and what he must answer. I don’t think it works quite that way. Mark’s suggestion deserves a fuller response than I can now give, but one possibility that Mark seems not to contemplate is this: Roberts is asked a question which he refuses to answer, and explains why he must refuse to answer it. His explanation goes beyond the grounds for refusing which I (among others on NRO) have criticized as being inadequately justified: a literal reading (if that) of canons of judicial ethics, notions that a prospective justice should say nothing that implies his stance in a pending or future case, etc. This broader explanation is, in fact, an adequate response to the question posed. If plausible (and more so if convincing), Roberts’s response, while not the type of “answer” the Senator sought, would be a bad basis on which to oppose him.

Mark’s second paragraph is right on. Roberts is the nominee, and he will be confirmed. But there is a growing list of reasons why the president’s choice of him now–instead of a Mike Luttig or an Edith Jones or an Emilio Garza –may backfire on conservatives next trip down the advise-and-consent trail. Mark is right, too, that much of what is being said in defense of Roberts also may come back later to haunt conservatives. One way to make the best of it now is to make two (or more) cases–not one. Conservatives should think and write and act as if Luttig or Jones or Garza is before the Senat–as if there were two nominees. Defend Roberts, to be sure, but do so on grounds (insofar as the grounds go beyond the particulars of Roberts’ biography) that imply nothingnegative about the other nominee–Garza, Jones, Luttig–who
we have imaginatively put before the Senate.

Reich Misrepresents Roberts


Robert Reich had a commentary on NPR’s “Marketplace” yesterday discussing federalism and the Roberts nomination. Reich noted that federalism is one of the most important legal issues confronting the Supreme Court. Alas, most of the rest of his commentary was riddled with errors, including the oft-repeated false claim about Roberts’ views of the Endangered Species Act and the commerce clause. I’ve sent a letter to the editor of Marketplace, which is reproduced below:

Robert Reich’s August 10 commentary on Judge John Roberts contained numerous factual inaccuracies. First, and most important, Reich misrepresents Judge Roberts opinion in the Rancho Viejo v. Norton case challenging the scope of the Endangered Species Act under the Constitution’s commerce clause. Judge Roberts did not “argue[] that the federal government didn’t have the power to set national environmental rules that would limit real estate development.” That position was taken by Judge David Sentelle. In the opinion to which Reich refers, Judge Roberts called for the entire U.S. Court of Appeals for the D.C. Circuit to rehear the case en banc. He did not argue that the federal government lacks constitutional authority to regulate environmental matters–in this case, activities threatening the endangered Arroyo Toad. Rather, he noted that the D.C. Circuit’s jurisprudence on the matter was incoherent and in direct conflict with the rationales adopted by the other circuits in addressing the issue. Judge Roberts made explicit that cleaning up this doctrinal confusion was his reason for urging en banc review of the case and noted that such review “would also afford the opportunity to consider alternative grounds for sustaining” the regulation at issue. Even if Roberts had echoed the Sentelle view (and, again, he did not), this would have no impact on federal environmental regulations governing commercial activity, and would not have the impacts on the business community that Reich suggested.

More broadly, the biggest corporate concern with federalism concerns the doctrine of preemption. This is not a question of what the federal government has the power to do. Rather, it concerns how broadly to interpret federal regulatory statutes, and whether such statutes should preempt potentially conflicting state rules. While the Supreme Court often splits on such questions, it rarely does so along traditional ideological lines. Justices Scalia and Breyer are among those most likely to find a federal regulatory statute preempts state law, whereas Justices Stevens and Thomas are those most likely to side with the states on such questions. Thus, it is also inaccurate to claim that it is “prevailing conservative orthodoxy” that the Supreme Court should “refus[e] to require that federal law preempt state law.” Rather, conservatives are split on this question.

Alas, there were even more mistakes in the piece. The Supreme Court did not “strike down” California’s medical marijuana law. Rather, it said that the federal government could prohibit medical use of marijuana even if California sought to legalize it. If anyone “struck down” California’s law, it was Congress, not the Court. In addition, contrary to the introduction’s suggestion these federalism questions do not involve “the same type of federal intervention” as was involved in the Schiavo case. The latter involved congressional intervention into state legal proceedings. The issues Reich discussed involve a) the extent of legislative regulatory power under the commerce clause and b) whether given federal statutes preempt state laws concerning the same subject matter. These are quite different things.

Federalism questions are certainly important to American business, and I am glad to hear them discussed on Marketplace. I hope that Marketplace will correct the record on these points and that future Marketplace reports and commentaries on these issues are more accurate.


Jonathan H. Adler

Hogberg Responds


David Hogberg responses to my comments below. He writes:

Whether Deep Ecology was influential when ESA was instituted is not that relevant. What matters is whether it influences environmentalists’ view of and use of the ESA now, which it clearly does. Also, the point of including the Deep Ecology Foundation was not so much to make them into huge players as to reinforce that these groups buy into Deep Ecology, assuming that the Foundation isn’t going to give to groups that don’t, at least in part, share its vision.

My response: I’m still not sure I’m convinced. Tobacco companies have given money to various libertarian groups over the years, but would it be fair to tar these groups by suggesting they “share” the tobacco industry’s “vision” (thereby implying such groups accept the industry’s view on other matters, such as the link between smoking and disease)? I don’t think so. The most one could say is that tobacco companies like something that libertarian groups do–such as defending an individual’s right to smoke. This position is consistent with the tobacco industry’s “vision,” but that doesn’t mean much. Supporting progressive taxation and public education is “consistent with” Marx’s Communist Manifesto, but few folks who support such policies are Communists or “share” Marx’s ideological vision. So, it may be fair to say that the Foundation for Deep Ecology likes some of what some environmental groups do–but not all that much given the paltry level of their contributions–but I do not think this is a particularly powerful critique, and I maintain it’s not particularly accurate to say these groups “share” the Foundation’s “vision.” In short, I think there are many reasons to attack the ESA–and to attack environmental groups use of the ESA–but I don’t think an alleged connection to deep ecology is it.

Making the Case


Schumer, Specter, and now Boxer, who takes her demand for answers a step further. If Roberts refuses to answer questions of the laundry-list sort Boxer will ask (and some here have endorsed), should he be filibustered or otherwise defeated? It seems a logical response to those who insist on such a process. If there’s no prohibition to answering the questions, as the argument goes, then failing to answer would seem an obstruction of the Senate’s role, no? I also believe Boxer’s reaction underscores Novak’s point about the Left’s approach to this nomination.

I do grow increasingly troubled by the president’s decision not to nominate an originalist with a long record, like the outstanding Michael Luttig. I think it will be more difficult to nominate and confirm such a candidate to a second vacancy. I truly hope I am wrong. Moreover, I am uncomfortable with some of the arguments Republicans senators, Roberts’s handlers, and even some conservatives are making on behalf of Roberts, many of which fall into the category of technical points and process (e.g., his pro bono work in Romer totaled only five hours, etc.). While Roberts may be restrained to speak, we are not. And as a whole, our side doesn’t seem very enthusiastic about explaining the substantive objections to judicial supremacy to the greater public. I dare say that it would have been easier to make the case had a Luttig been nominated.

Re: Counting to Five


I largely agree with Mark’s assessment. I would also not discount another reason for the attacks on Roberts: Groups like PFAW and the Alliance for Justice need a big fight to continue to raise money. One shouldn’t discount the substantial interest that the various interest groups themselves have in a knock-down, drag-out fights over each and every Supreme Court nomination.

Roberts and “Access to Justice”


Walter Olson dissects PFAW’s latest attack on Judge Roberts: that he opposes “access to justice” because he voted to deny legal fees to the Institute for Justice. As Olson notes, Roberts applied settled law in denying IJ’s fee claim. Moreover, if this was such a travesty, why isn’t IJ complaining? Perhaps because this is another manufactured non-issue.

RE: Endangered Roberts


I’d make some qualifications to the Hogberg and Kafkova piece on green opposition to Roberts.

First, it is important to note that many of the environmental objections to Roberts are based on a sloppy interpretation of his Rancho Viejo opinion. Roberts did not so much question whether activity threatening the “hapless toad” could be regulated as he questioned the poor reasoning of the D.C. Circuit’s opinion–reasoning that conflicted with that of other circuits. While I believe there is a basis to question reach of the ESA under the commerce clause, Roberts’s opinion did not directly address the question. I’ve discussed this before on NRO’s Bench Memos (see here and here). Suggesting or implying that the environmental critique is factually accurate (even though misguided) misrepresents Roberts opinion. The simple fact is we do not know his views on the limits of the commerce clause.

Second, I’m not sure about the article’s emphasis on Deep Ecology. For instance, while Deep Ecology folks like the ESA, I’m not sure it’s accurate to say the the ESA is the result of the deep-ecology worldview. Deep Ecology was not yet influential when the ESA was enacted. Moreover, the ESA would not contain exemptions for threats to human life and disease-bearing insects were that the case. More broady, while the Foundation for Deep Ecology is a bad outfit, I don’t think they’re that big a player. One million dollars in grants? That’s nothing. And it’s grants over the last several years to the environmentalist groups are even more paltry. I think it takes more than that to document a link between Deep Ecology and mainstream environmentalists groups. The article is certainly correct that there are many problems with the ESA (including its environmental effects), but I don’t think a purported link to Deep Ecology is the cause.

Re: Counting to Five


But, Mark, what you discuss is not what I’m disputing. Novak says that “Luttig, Jones or Owen going on the court [in place of Rehnquist] would cement a conservative majority.” That’s flatly wrong.

Of course Novak can count to five. But he hasn’t done so here. And his failure to do so is, I think, emblematic of a certain irrational exuberance in some quarters on the right.


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