Bench Memos

NRO’s home for judicial news and analysis.

DailyKos Is Happy


Indeed, a poster there takes some solace in the hope that the Right will undo the Roberts nomination:

LATimes Gives It a Try


Today there’s a story in the Los Angeles Times about Roberts’s ties to the 1996 Romer case: “Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm’s pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.”

Methinks the LATimes is trying to start something here–if the Left can’t destroy him maybe they can get some of those right-wing whackos to help, is the thinking?

I suspect (call it an educated guess) his role in the case is relatively slight.


Can We Be Decent About This, Please?


Reporters digging through Roberts adoption records is similar to the same kind of unfair, intrusive, irrelevant nonsense that surrounded the Bill Pryor nomination–the Disney Smear and the Miguel Estrada nomination–he’s not Hispanic enough (what does that even mean?).

They’re Estrada-ing Roberts already–using his wife and his children if that’s what it takes.

Nevermind decency. Let’s talk shop. Dems: You better condemn that line of inquiry, and fast. 2006 is election year, and don’t play with the kids. On a Supreme Court nomination? People aren’t going to miss that.

Revealing the Inner Secrets of The Federalist Society


The Federalist Society offers this response (no secret password required) to the New York Times’s recent article describing it as “a conservative legal group whose influence is the source of ever-swelling myth, mystery, insinuation, denial and debate.”

And Same to You, John


Judge Bill Pryor talking about John Roberts:

Many Senate Democrats opposed Pryor’s nomination, and Pryor had been through a bruising hearing before the Senate Judiciary Committee that June. The next morning, Pryor said, Roberts told him, “Bill, I’m here to tell you, you will some day be confirmed.”

Pryor laughed and added, “I wasn’t so sure he was right, but he ended up being right.” The Senate just two months ago made Pryor’s place on the court permanent on a 53-45 vote.


re: It’s Fishing Time!


I love this quote:

“We, of course, oppose him coming right out of the block,” says Nancy Keenan, from NARAL Pro-Choice America, “and we’re not fuzzy about that.”
Translation: We weren’t waiting for a reason and still probably don’t have one. But we oppose him, darnnit.

It’s Fishing Time!


“He Is a Very Impressive Man”


Roberts gets the Bill Clinton endorsement.

I imagine him privately mischievously bummed about that.

It’s a Boy. Deal.


ZZZZZZ. The Where’s-the-Girl?-I-Wanted-a-Girl whines continue. And this time the complaint, too, is that there is not enough whining.

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.


Sign up for free NRO e-mails today:

Subscribe to National Review