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Cornyn on Ginsburg



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My NRO essay today on extremist aspects of Ruth Bader Ginsburg’s record at the time she was nominated to the Court reminds me that I’ve been meaning to defend Senator Cornyn against a charge that he misrepresented Ginsburg’s record. In this op-ed in the Washington Post, Cornyn wrote:

Before becoming a judge, Ginsburg expressed her belief that traditional marriage laws are unconstitutional but that prostitution is a constitutional right. She also wrote that the Boy Scouts and Girl Scouts are discriminatory institutions, and that courts must require the use of taxpayer funds to pay for abortions–hardly views Americans would consider mainstream.
I have no interest in picking a fight with lawyer (and Manhattan Institute scholar) Peter Huber, whom I like and whose sterling brilliance I admire. But Huber, who served as a law clerk to Ruth Bader Ginsburg when she was a judge on the D.C. Circuit, took issue with Cornyn’s comments in a recent letter to the editor. Huber’s loyalty to his former boss is, I suppose, commendable. But it is Huber’s rebuttal to Cornyn’s comments, not Cornyn’s reading of Ginsburg’s record, that is “tendentious” or at least mistaken. Consider:

1. Huber says that the Ginsburg report took no position on whether the Boy Scouts’ and Girl Scouts’ supposed perpetuation of stereotyped sex roles was unconstitutional. Cornyn never said it did.

2. Huber leaves the impression that Ginsburg was merely pointing out that traditional marriage laws and laws against prostitution are “arguably” unconstitutional. For the reasons that I explain in my essay, I do not believe that is the most natural reading of Ginsburg’s statements. Indeed, if, as Huber says, Ginsburg’s report was merely intended to describe the changes “needed to make federal law gender-neutral,” why would she even raise these constitutional arguments? A fair reading of her recommendation that the federal laws against prostitution be repealed suggests (or certainly leaves wide open the possibility) that her constitutional argument provides at least part of the basis for that recommendation.

3. Huber claims that Cornyn was mischaracterizing Ginsburg’s “legislative recommendations as broad pronouncements about what’s constitutional and what isn’t.” But that’s not at all what Cornyn did. Rather, Cornyn cited a mix of Ginsburg’s constitutional and policy positions to show that Ginsburg had views that Americans wouldn’t consider “mainstream.”

In sum, Cornyn’s treatment of Ginsburg’s record was fair and accurate. And, for what it’s worth, Ginsburg has been far less fair in dealing with those with whom she disagrees, as her ridiculously crude attack against originalists shows.

Arkes, Clement, and Bush



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With the greatest respect for my friend Hadley Arkes, I have to say I’m deeply troubled by his piece on NRO today. Hadley is convinced that the White House played a deft game of decoying the press in the direction of Judge Edith (Joy) Clement, thus smoothing the way for the evening announcement of the Roberts nomination last week. He notes at the end a regrettable aspect to this, namely “the wounding of Joy,” however much a consolation may await her in a future nomination.

But what exactly is Hadley’s evidence that the White House engaged in this tactic of misdirection? Only that “the word had been let out at the White House” about a Clement nomination, according to the reporters calling Hadley all day long last Tuesday. I’m skeptical. Hadley is closer to the scene than I (by several hundred miles), and there may be something else he is prudently not saying, but there are all sorts of ways that a game of “telephone” could have been started, with Clement suddenly “known” to be the pick, without anyone at the White House deliberately retailing the story.

My main reason for skepticism is that I find it hard to believe that George W. Bush, a man of often strikingly tender feelings and great kindness, would have willingly overseen such a tactic by his White House, or would not even now be terribly angry upon learning it had been done without his knowledge, given the “wounding” of Judge Clement that Hadley suggests occurred. And at such a price, the advantage in throwing the Democrats “entirely off balance,” with a day’s worth of wasted energy on the prospect of Clement, was a completely ephemeral one, as a president as politically smart as Bush would have known if anyone proposed this tactic to him.

Again, Hadley may know something else he is not saying and perhaps should not say. But his article gives me no reason to believe that the White House was behind a “head fake” toward Clement as they paved the way for Roberts. Now if President Bush worked this out with Joy Clement beforehand, and got her permission to use her as a decoy while pledging to keep her in mind for a future nomination, that would be both as Machiavellian as Hadley’s story, and as ethical as I believe the president to be.

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The Secret Handshake



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When I joked yesterday about the Federalist Society’s (non-existent) secret handshake, I was poking fun at the conspiracy kooks out there. So predictable is the New York Times, that it wrote this in its editorial today:

“The American public has little to go on in evaluating his politics or legal philosophy. But at the same time, leaders of conservative groups seem to know enough to declare that they are delighted with his selection and confident that he will side with them on the court. This should not be a matter for discussion only among the members of cloistered clubs who know the secret handshake.”

Speaking of secret operations, I think the New York Times editorial board’s deliberations would qualify.

White House Confirmation!



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This morning, White House Chief of Staff Andy Card told Bill Bennett that John Roberts “a conservative”–not once, but four times on Bennett’s nationally syndicated radio show, Morning In America.

Polling Roberts



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USA Today:

51% of Americans expect “a major fight” over Roberts in the Senate. But by 59% to 22%, those surveyed say he should be confirmed for the job.

Roberts’ favorable-unfavorable ratings are a muscular 46%-13%; 19% haven’t heard of him.

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Nonsense on Stilts



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That Jonathan Turley piece in yesterday’s LA Times that’s come up a few times here is remarkably silly. Turley breathlessly reports Senator Durbin’s account of a private meeting between Durbin and Judge Roberts in which Durbin supposedly flustered Roberts by asking “what he would do if the law required a ruling that his church considers immoral.” Turley says that Roberts’s supposed answer—that he would recuse himself—is the wrong answer, raises “difficult questions of fitness,” and dramatically transforms the whole confirmation process.

Turley’s essay is nonsense on stilts. Turley seems to reject the elementary idea that there might be extraordinary circumstances in which a judge would have to recuse himself in order to avoid being actively complicit in evil. Would Turley himself, as a judge, order a coercive abortion if, hypothetically, that was what the law required? But there is no reason to believe that Roberts would anticipate any such circumstances.

Turley’s transparent effort (in concert with Durbin, evidently, as Kathryn notes) to concoct an issue is yet another illustration how ridiculous and desperate the Left is.

The Senator and the Nominee



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Jonathan Turley confirms Durbin was his leak on what has become the “religious test” conversation with Judge Roberts. Though Durbin’s office is denying the accuracy of Turley’s account.

Testing Catholics



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In addition to the points already made by Mark and Kathryn, I note that Rule 610 of the Federal Rules of Evidence provides: “Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.” There appears to be no “Catholic exception” – I’ve double checked.

Of course, the rules of evidence only apply at significant searches for truth, like the trial of a gambling indictment or a disgruntled employee’s workplace harassment complaint. They do not govern hearings at which esteemed members of the U.S. Senate, when not comparing U.S. soldiers to Pol Pot, decide who is worthy to sit on the U.S. Supreme Court.

Questions



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“You wouldn’t run for the United States Senate or for governor or for anything else without answering people’s questions about what you believe. And I think the Supreme Court is no different.” — Sen. Evan Bayh (D-In.), CNN “Inside Politics,” July 25, 2005

Bring It On. . .



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I can see it now:

“Judge Roberts, are you now, or have you ever been, a member of the Federalist Society?”

It will be interesting to see which Senators will be goaded into this line of questioning about the Federalist Society, a highly respected group of conservative and libertarian lawyers “founded on the principles that the state exists to preserve freedom, that the separation of governmental power is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” In other words, principles that the vast majority of Americans agree with and admire.

It was founded in 1982 largely in response to the problem that “law schools and the legal profession are strongly dominated by a form of orthodox liberal ideology,”and that these liberal views are largely “taught simultaneously with (and indeed as if they were) the law.”

The Society seeks to promote awareness of the principles of our constitutional system such as “individual liberty, traditional values, and the rule of law.” It sponsors forums to do so all around the country, and to an exceptional degree includes diverse and dissenting points of view, in the interest of healthy intellectual exchange and openness.

I think many people participate in Federalist Society events (and probably forget to pay dues sometimes), are friends of the Society, support it, and help pass the word so that interested law students and young associates in law firms will have exposure to all the excellent educational and professional opportunities it offers.

SShh



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Let me urge my fellow Federalist Society members that no matter how hard they’re pressed, don’t give up the secret handshake.

Testing



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Dick Durbin and others seem to be getting close to the line, so here’s a reminder: the Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Enough of the badly disguised Catholic bashing (and by that I mean, practicing Catholics).

Another One for the Common-Sense File



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Senator Obama was worried that Judge Roberts might be so super-smart that he might lack something more important than brains: common sense. Senator, add this item to the growing “common sense” file on Judge Roberts.

From the New York Daily News:

On Friday, the U.S. Court of Appeals for the District of Columbia released a decision in which John Roberts, now Supreme Court nominee, was the dissenting voice in a 2-1 ruling. Said ruling reversed a gun-possession conviction because police had, according to the court, overstepped their bounds in searching the trunk of the suspect’s car. To be more precise, the car the suspect was driving (with a suspended license).

The cops opened the trunk after a records check showed that the vehicle bore stolen temporary license tags. And, lo and behold, they found a .25-caliber pistol.

Showing more common sense than did his colleagues, Roberts wrote, “Stolen tags often accompany stolen cars.” He also wrote: “The best [the suspect] could do was tell the officers . . . that the car belonged to his girlfriend. Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework.”

NARAL vs. John Roberts



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Beyond the Internet: Bench TV



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Here’s Ed Whelan debating Nan Aron on MSNBC earlier.

Durbin: There You Go Again. . .



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Judicial Confirmation Network just issued this press release on Dick Durbin’s latest repeat offense.

Testing Catholics



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In addition to the points already made by Mark and Kathryn, I note that Rule 610 of the Federal Rules of Evidence provides: “Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.” There appears to be no “Catholic exception” – I’ve double checked.

Of course, the rules of evidence only apply at significant searches for truth, like the trial of a gambling indictment or a disgruntled employee’s workplace harassment complaint. They do not govern hearings at which esteemed members of the U.S. Senate, when not comparing U.S. soldiers to Pol Pot, decide who is worthy to sit on the U.S. Supreme Court.

Check out MSNBC at 12:15



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Ed Whelan will be on MSNBC live from 12:15 to 12:45 debating Nan Aron.

Re: ZZZ



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It is a testament to the stature and influence of the Federalist Society that so many on the Left appear to care whether John Roberts was ever a Federalist Society member. Today’s front-page (!?!) article in the Washington Post explores this question further.

The article quotes me as speculating that Roberts “probably realized pretty quickly he could take part in [Federalist Society] activities” without being a dues-paying member. For the record, I would like to clarify that I have absolutely no basis for any insights on this matter. The point I made to the reporter (in a conversation that I understood to be “on background”) was that the Federalist Society typically has a two-tier pricing system for its events–a lower price for members and a slightly higher price for non-members–and that speakers at its events are, as I understand it, typically admitted free. If I made the speculative comment that the article attributes to me, it was in a context that made clear to the reporter that I had no knowledge about anything related to Roberts’s membership or non-membership. It is misleading that the quote is used in a manner that might suggest otherwise.

“No Catholics Need Apply”?



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Is Dick Durbin looking at a religious test for judges again? (I’ve always found the “No Catholics Need Apply” moniker misleading though—it’s any religious person who doesn’t agree with Dick Durbin he’s got beef with. Religion just one trick in his bag.)

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