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Bench Memos

NRO’s home for judicial news and analysis.

It Was Early-Morning Wishful Thinking



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Make sure you’re all rested for the long September.

Re: Dionne



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I am not sure the Dionne column is quite so defeatist, Kathryn. Rather, I think Dionne is shrewdly laying the predicate for one of the potential lines of attack, He concludes:

The paradox of the Roberts nomination is this: Roberts seems untouchable because of his shrewd and extensive preparation for this critical moment in his life. He could be derailed only if he proves to be too shrewd, too smooth and too evasive.
Given that we all know that a) the White House will not release documents from the SG’s office, b) Roberts will not answer questions that bear on issues that may come before the Court, and c) he will do so in a “smooth” fashion (as he did at his prior confirmation hearing), Dionne is leaving open the possibility of opposing Roberts on precisely this basis. We saw something similar with Bork. He was attacked for his scholarly writings, yet when he distanced himself from some of the writings, he was accused of a “confirmation conversion.” Given that a frontal attack on Roberts’ views or experience is unviable, they’ll go after him for refusing to disclose and being “too shrewd, too smooth, and too evasive.” Of course, I hope I am wrong, and that Roberts sails through with single-digit opposition–but don’t bet on it.

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I Don’t Think E. J. Has a Fight In Him



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Clearing it Up



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From the AEI website (linked in Jonathan’s post) – “Professor Cass Sunstein argues in his new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, that the best approach is a form of cautious incrementalism. He suggests that judges build on their precedents, but show a reluctance to strike down the decisions of the elected branches.“

Well, that clears it up for me. And lest anyone forget, there’s “The Constitution 2020.” Hopefully George Will will be armed with this information (I have no expectation Jeffrey Rosen will).

StopJohnRoberts.Com



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A group calling itself ProtectOurCourt.Org, “an online campaign started by grassroots activists who are former staffers to the Wesley Clark for President campaign” and ran StopJohnBolton.Com, has prepared an anti-Roberts ad focused on school prayer. (Link via HB.)

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Sunstein at AEI



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Speaking of “the Senate Democrats’ favorite legal thinker,” Professor Sunstein will be speaking at the American Enterprise Institute in the midst of the Roberts confirmation debate. On September 13, Sunstein will lecture on the topic, “How Should the Supreme Court Interpret the Constitution?” at a forum sponsored by the AEI-Brookings Joint Center for Regulatory Studies. Based on this summary, it appears the talk will be based on Sunstein’s new book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. After Sunstein’s talk, George Will and Jeff Rosen will comment.

Six Degrees of Guilt by Association



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Settle in for a long stay in front of the tube come September 6 — at least if Democratic Senators listen to Cass Sunstein. In that Washington Post piece today, Sunstein outlines the Roberts’ cross-examination we shall probably have to endure. And “endure” is the right word. In fact, it might last until the Christmas recess.

Sunstein’s basic strategy is simple. Roberts, he says, is some kind of conservative. But we do not know which kind. Very well then, Sunstein advises, let’s start at the beginning. Let’s leave no question unasked to see just what kind of conservative John Roberts is.

Some conservatives, Sunstein says, oppose rulings which make medical records private. Judge Roberts: are you in favor of making people’s medical records public? How do you feel about faxblasting the pictures from grandma’s lower GI Series? Not in favor? Ahem. OK, then, let’s move on.

Sunstein says that some conservatives hold that the Court “has no legitimate basis for prohibiting…racial segregation” at the national level. Judge Roberts: was Jim Crow your favorite constitutional character growing up? No? Don’t be evasive now, Judge. Do you have any African-American friends?

Sunstein says that some conservatives oppose Court rulings which recognize one’s right to live with one’s own family. Judge Roberts: do you favor government policies which take kids away from their parents and siblings, and make them live with, say, Keith Richards? Come on, Judge. Be candid. You have always preferred the Stones to the Beatles, haven’t you?

Judge Roberts: some conservatives think that South Park is really funny. Do you? How about the movie “Team America”? Some conservatives cheered so much that they blew lunch when the commandos wiped out Alec Baldwin, Matt Damon and all those other Hollywood pinkos? What was your reaction to that mass execution, Judge Roberts? Be honest. Use additional sheets, if necessary.

Judge Roberts: some conservatives (like Mark Levin on NRO) are now saying that Cass Sunstein has become a joke. Do you agree?

Re: Sunstein



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I agree with Mark that there is much that is amusing about Cass Sunstein’s op-ed. I think it’s worth emphasizing, though, that Sunstein expressly states that it was “reasonable” for Roberts to “raise[] questions about the constitutionality of some applications of the Endangered Species Act.” This concession from a leader of the Left should undermine those who have been trying to make the arroyo toad the mascot of their opposition to Roberts. It would also seem to compel the concession that it would be reasonable to raise more general questions about the scope of Congress’s Commerce Clause power.

Re: Roberts & Hamdan



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As I have previously discussed, Gillers and his two co-authors fail to deal adequately with the many obvious difficulties in their position that Judge Roberts should have recused himself from the Hamdan case. Indeed, they do not even address the possibility that elevation of a judge within the federal judicial system might be materially different from a judge’s seeking employment outside that system. I will not repeat my previous observations here but would like to highlight two additional problems with the Gillers position:

1. If, as Gillers maintains, the realistic prospect of elevation should have required Roberts to recuse himself from cases of importance to the administration, why wouldn’t the fact of elevation likewise require ongoing recusal? In other words, why wouldn’t the Gillers position require that Roberts, once confirmed and appointed to the Supreme Court, sit out all cases of importance to the president, to whom he would presumably be indebted for his appointment?

To illustrate the point: Let’s assume that a federal judge was negotiating a book contract with a publisher. It would seem uncontroversial that the judge would recuse himself from any case involving the publisher during the negotiations. But let’s move forward in time and assume that the negotiations resulted in a contract. Obviously the judge’s recusal obligation would extend to the period covered by the contract and presumably for at least a reasonable time after. In other words, where the prospect of a benefit requires recusal, the actual conferral of that benefit does as well.

The logical corollary to the Gillers position–that Roberts would have to recuse himself as a justice from cases of importance to this administration–is belied by 200-plus years of American history. Does Gillers maintain that this unbroken practice is wrong? If not, it would appear to follow as a matter of logic that his underlying position must be wrong.

2. If, as Gillers maintains, the fact of an interview required Roberts’s recusal in Hamdan, is it Gillers’s position that all the other federal judges who interviewed for the Supreme Court are also required to recuse themselves from cases of importance to the administration? Presumably these judges remain on the short list for the next vacancy. It is of course true that no additional resignations have been announced. But O’Connor had not announced her resignation at the time Roberts was interviewed, so that point does not distinguish Roberts’s situation in Hamdan from that of the other judges who interviewed.

Roberts & Hamdan



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If Roberts should have recused himself in the Hamdan case once he was asked to interview with the White House as a possible nominee to the Supreme Court, why is being asked to be interviewed the focus? It seems to me, as the logic goes, if you know that you’re being looked at as a possible nominee, even without having been asked to be interviewed, you’d have to recuse yourself — which means that all judges on the potential nomination list would be recusing themselves. And from what are these judges to recuse themselves? All cases involving the Executive Branch, since the president IS the Executive Branch? And if this is the standard, why has it only now been discovered? Seven of nine of the current justices were former federal appellate judges, and to the best of my knowledge, none of them recused themselves from any cases because of some perceived conflict of interest when they were under consideration.

Sunstein



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Want another laugh? Read Cass Sunstein’s op-ed in today’s Washington Post.

The professor is a moving target. He argues for precedent when he agrees with the Court’s results, he argues for a living and breathing Constitution when he believes the Court is mired in the Constitution’s text, he argues for judicial restraint when the Court strikes down congressional laws he likes, and he repeatedly mischaracterizes originalist jurisprudence. I guess this explains why he’s the Senate Democrats’ favorite legal thinker. (He also used the title of one of the chapters of my book for the title of his book. But, then again, my publisher insisted on a title for my book that was used in a movie about aliens.)

Rotunda on Recusal



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Law professor Ronald Rotunda, a noted expert on legal ethics and constitutional law, disagrees with those legal academics who argue Judge Roberts should have recused himself in the Hamdan case once he was asked to interview with White House officials about a potential Supreme Court opening. His letter to Judiciary Committee Chairman Arlen Specter–apparently written in response to a request from Specter (contrary to this insinuation)–is available here. I am not an expert on such matters myself, but it seems to me Rotunda makes a strong case.

As one might expect, the folks at the Center for American Progress have a different view of the Rotunda letter, and are all exercised about Rotunda’s former employment with the Department of Defense. Yet what’s interesting about the various posts on this issue at Think Progress, particularly those by Judd Legum, is their complete lack of substance. Legum does his best to impugn Rotunda’s motives, but never addresses the substance of his remarks. In my mind, this simply reinforces the strength of Rotunda’s arguments.

A Women Thing



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The Toledo Blade on John Roberts and women, in a piece that

In Roberts’s News Today



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The Supreme Court nominee’s grammar is better than mine.

I’ve never used “slumgullion.”

Though he ought to have to take the WFB test. Then we’ll see!

Kudos to the Times



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Have to give credit where credit is due, even when it is due to the Old Grey Lady. Here we are, on the cusp of the Big Constitutional Showdown (a/k/a the Roberts’ Hearings), and the New York Times runs a tongue-in-cheek editorial against Roberts. Or, should I say, “toad-in-cheek”?

Cheeky editorialist Adam Cohen peers into the face of the arroyo Southwestern toad, and sees the future of our country. John Roberts, we are told, does not really care what happens to this “hapless” creature, a tiny thing which does not like the road at all. At least according to a case about the Endangered Species Act that Judge Roberts handled. The arroyo toad spends its whole life in California. Though Roberts did not understand why this is so, he thought it was a big deal. The toad’s sedentary habits put it beyond the reach of Congress’s power over “interstate commerce”. And so, maybe Congress cannot protect our little friend form the nasty developers who want to kill it.

All this makes Roberts “very dangerous”. Roberts holds (get ready!) “extreme states rights views”. Lest you scratch your head wondering, Cohen explains: these are the views that kept Dred Scott in slavery and, you know, led to the Civil War, in which many toads, and some people, lost their lives.

Turns out that Roberts is one of those “conservative judicial activists” — the “most dangerous kind”. They’re the kind that specialize in taking rights away, unless you are lucky enough to be a state. The good activist is the “liberal” kind, for they specialize in “creating” rights like the right to privacy. This makes them very, very safe, unless you are unlucky enough to be an unborn child.

But, if you are an arroyo Southwestern toad: kick back, order another Margarita, check out the chicks. Life is good. You are safe.

Jonathan Adler is worried about this “disingenuius editorial.” Chill, Jonathan. It’s no more disingenuous than Younfg Frankenstein, though not quite as funny. Order up another gin and tonic. It’s late August, and the NY Times is having some fun.

More on Cohen



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In reference to the Cohen editorial mentioned below.
Among Cohen’s more egregious sleights-of-hand is to suggest Roberts’s confirmation would severely restrict federal power. “Having one more justice who supports weakening Congress could make an enormous difference.” Yet Justice O’Connor has voted to restrict federal power in every recent commerce clause case, including the medical marijuana case, expressing a far more restrictive view of Congressional power than anything Roberts has ever written. So Cohen ignores O’Connor’s votes in Commerce Clause cases, instead focusing on sovereign immunity and statutory interpretation cases in which she voted with the federal government. In other words, Cohen’s argument boils down to “Because Roberts suggested he agrees with O’Connor here, he might disagree with O’Connor over there.”

This isn’t enough for Cohen, who goes on to make the ridiculous charge that “If Judge Roberts votes with the most conservative justices, the court could start to revive the spirit of the Lochner era, gutting a wide array of laws that protect Americans from harm.” This is just ridiculous — and Cohen’s too smart not to know it. Modest limits on congressional authority to regulate local matters hardly amounts to “Lochnerism.” The Lochner court invalidated a wide array of federal, state and local legislation. The federalism cases, on the other hand, limit federal regulatory authority while preserving — and in some cases enhancing — state and local regulatory authority. I’d go on, but I have work to do, so go read the Althouse post.

NYT on Roberts (Again)



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The NYT’s Adam Cohen has a particularly disingenuous editorial suggesting John Roberts may be a “judicial activist.” Largely relying on Roberts’ infamous dissent from denial of en banc review in Rancho Viejo, Cohen warns Roberts displays dangerous signs of activist tendencies. Ann Althouse ably dissects the editorial here. I’ve also challenged the NYT’s previous misrepresentations of this case here and here.

Naral’s New Ad



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He’s a Closet Confederate!



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Could everyone just stop writing for the month of August? Otherwise you wind up with pieces like this one about JR in the WashPost.

Reviewing Judicial Review



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Robert Alt’s pronouncement about the originalist view of judicial review is simply not accurate. In fact, it is a subject of much debate (and writing). Unfortunately, Robert quotes only part of Art III, Sec 2, which actually states, in the next to last paragraph:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other cases before mentioned [see Art III, Sec 2, Par 1], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

You simply cannot discuss the context of judicial review by ignoring an integral part of Article III. Robert says, “This more generalized statement of judicial power is not without limits–it is properly circumscribed by the understanding of judicial power at the time of the framing.” That may be so (whatever that means), but more importantly, it’s circumscribed by Article III itself.

Moreover, during the Constitutional Convention, there was discussion about the Supreme Court’s being part of a council of revision, based on a proposal by James Madison, in which it would participate in vetoing legislative acts before they would become law. But it was quickly abandoned, including by Madison himself, because they didn’t want the Court involved in legislative functions. Now, I understand the difference between law-making and judicial review, but the framer’s simply did not grant the judiciary the broad power to veto, i.e., strike down, congressional acts.

And the fact that the framers enumerated specific areas of judicial authority, and authorized Congress to determine both the structure and, in essence, the extent of its appellate authority, suggests not a broad grant of power to the judiciary, but a limited one.

I am not persuaded that the framers granted the judiciary the power Robert argues for. And yet, the judiciary can’t be a co-equal branch if it has almost no authority in determining constitutional questions. Furthermore, I believe a strong argument can be made that judicial review is an implied power. After all, if a court can’t adjudicate and interpret it has no effective authority. The reason judicial review is so hotly debated, even here among conservatives, is because the issue was not a primary focus at the Convention, and its boundaries have been determined by the judiciary itself. And not surprisingly, the judiciary has concluded that its power is supreme.

As an aside, I would urge the visitors to this site to read Federalist 78 in its entirety (it’s too long to provide here). And I think most will agree that Alexander Hamilton was wrong when he concluded that, in essence, judicial review (our phrase) would not mutate into judicial supremacy.

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