Bench Memos

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More Questions


Re: Andy’s comment, the Constitution’s advise and consent role belongs to the Senate. It has nothing to do with what the nominee testifies about (or chooses not to answer). If the nominee’s answers are unsatisfactory, the Senate can vote him down or just leave him hanging. It happens all the time. But I am interested in pursuing this line of thinking a bit further.

If, as asserted, the Senate’s advise and consent power trumps ethics rules adopted by the judiciary to manage its own conduct, does it trump an executive branch attorney’s ethical obligations as well? Should Roberts answer all questions about his confidential and privileged communications? They’re no more or less important than judicial ethics rules (whether silly or otherwise, they exist). Both are intended to protect their respective institutions. (As an aside, my prosecutor friends are the first to insist that Congress not interfere with their investigations by conducting oversight hearings, which is also part of Congress’s constitutional authority, i.e. legislating and appropriating. I tend to agree with my prosecutor friends in this regard.)

If the Code of Judicial Conduct doesn’t help in drawing lines, at least for the nominee, then what are the lines, if any? Every question must be answered, short of making sworn promises about ruling a particular way on a particular case? Beyond reference to one case, Roe v. Wade, the proponents might want to flesh this out a little more for the rest of us. (Obviously, there are and will remain fuzzy areas, but I’ve not seen much by way of examples.)

Also, why question a nominee in a way that ensures a non-responsive answer? Despite what’s debated here, the fact is that Roberts will not answer certain questions that he believes would result in him running afoul of the ethics rules. What’s the point? Moreover, should senators who ask the questions urged by some here, but which go unanswered, vote against Roberts? A laundry-list of Schumer-like questions, which Matthew and others (I believe) support, will get us nowhere. If we want to know what makes Roberts tick, there’s a myriad of questions that can be asked which would be far more useful and informative and avoid ethical problems. In the end, this is the only approach that will work.

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


In this July 27 article, the New York Times claims that John Roberts in December 1981 “wrote a blistering critique [of affirmative action], saying the ‘obvious reason’ affirmative action programs had failed was that they ‘required the recruiting of inadequately prepared candidates.” (The New York Times repeats that charge in a July 28 article.) But Roberts’s actual comment in his December 22, 1981, memo was clearly directed at a single specific program in a municipal police department that Arthur Flemming, the outgoing Chairman of the U.S. Commission on Civil Rights, claimed had been sabotaged. There is absolutely no basis for reading Roberts’s comment as applying to all affirmative-action programs.

This same article discusses Roberts’s position that Title IX applied only to specific programs, but, like the Washington Post article that I dissect here, fails to disclose that Roberts’s position rested squarely on a very recent Supreme Court ruling.

Is it mere chance that these articles misrepresent Roberts’s statements on affirmative action, Title IX, and a meeting with Martin Luther King Jr.’s widow? Or is the liberal media working with the Left to stir up opposition from civil-rights groups?


Questions and Judicial Ethics


Reacting to my article today, a number of correspondents raise the judicial ethics points addressed by Mark in his piece, and also being discussed here on Bench Memos by Ramesh, Robert, Gerry and perhaps others. I must say that I just do not see this as a much of an obstruction to asking nominees about their views on prior precedents.

The objection based on judicial codes of conduct I find particularly unpersuasive – and yet another example of how lawyers seem to think they have license to regulate the country in the name of regulating themselves. I am especially sensitive to this from long service as a prosecutor, watching the defense bar use the codes of professional conduct that apply to the legal profession to try to thwart the executive branch’s constitutional law enforcement mission – an agenda pursued with no small amount of success (which should not be surprising given that judges who decide such claims are also lawyers and similarly figure lawyers should run the world).

The professional code, for example, is sometimes construed to hold that a lawyer who deals with an unrepresented party who is adverse in interest is ethically obligated to do nothing more than advise that party to obtain counsel (DR 7-104(A)(2)); and that when dealing with a represented party, a lawyer may not properly interview that party absent consent of counsel (DR 7-104(A)(1)). Of course, if those interpretations were applied to prosecutors, it would mean that criminal suspects could not be interviewed or interrogated even under circumstances where such questioning is perfectly permissible under the Constitution – in addition to being socially desirable. It would mean, implicitly, that such codes were capable of nullifying constitutional powers.

To the extent code-based regulations conflict with constitutional prerogatives (or even statutory duties), those code-based regulations must give way. The senate’s advice and consent function is a constitutional duty. It can’t be trumped by a judicial code. Period. And there’s no reason to think there’s any real danger of that anyway, because the code and the senate’s function can easily live in harmony.

Of course I don’t take issue with the notion that judges have to remain impartial. But that simply means they have to have an open mind about applying the law as they understand it to the facts – meaning, among other things, a willingness to change their minds or alter their prior views if there are persuasive grounds to do so. Giving a view about the legal reasoning of a precedent does not render one disqualifiable in a future litigation in which that precedent arises again. If it did, judges who have previously ruled on questions that recur would be obligated to recuse themselves lest their impartiality be questioned.

A nominee who told us that, for example, he thought Roe was poorly reasoned would not be telling us anything more than what the Supreme Court itself has said. Moreover, it would not bind the nominee to take any particular position if a case arose in which the Roe precedent was relevant.

Further, it cannot be the case that it is proper to ask a nominee whether, as a matter of general philosophy, he thinks a judge is free, under the guise of shaping the contours of the so-called right to privacy, to find new rights not enumerated in the Constitution, but that it is somehow improper to ask him what he thinks of the reasoning of a prior case in which a court, under the guise of shaping the contours of the so-called right to privacy, purported to find a new right not enumerated in the Constitution. That would elevate form over substance and reduce an important process – one in which Americans have a vital interest – to a game.

This society did not have to navigate itself to a place where, effectively, the courts are the final word on any policy and any law in which they choose to be the final word. Who would have thought, even two years ago, that the military, taking enemy prisoners in the middle of a shooting war, would have to worry about being hauled into court to explain themselves? We now have precisely that worry for no better reason than that the courts said so. What assurance do we have that they will not be micro-managing bombing targets tomorrow? Or that they won’t say the Constitution protects polygamy, private heroin consumption, or euthanizing mentally retarded infants? None. No one knows what they will say tomorrow, but we do know that once they say it our society has decided that that’s the last word – no matter how unpopular or unreasonable it may be.

We’ve made them a super legislature. It’s not the way I would have designed it, but that’s the way it is. OK, fine. But then don’t tell me those seeking the gig should not be vetted just like everybody else who aspires to a policy-making position gets vetted. If they are going to rule us, I want to know more than where they were Summa Cum, whether they’ve paid all their parking tickets, and when they last eye-balled the nanny’s green card. I also want to hear more than a bunch of vague generalities about their worldview – because unlike other legislators, I don’t get to vote this one out of office if I’m misled. I want to know what their views are. You can’t ask them about pending cases or future cases because that undermines the integrity of the judiciary? Fair enough. But you can’t tell me they can’t be asked about prior cases either.

The Relevant Comparison,


Mark, is not between a nominee’s past law-review articles and his past judicial decisions (assuming he has been a judge), but between a nominee’s law-review articles and his statements in a confirmation hearing. I don’t think this latter distinction can bear the weight that it would require to justify a no-answer rule.

Another Question About Questions


Robert Alt’s response to my post on questioning judicial nominees is very sensible and very largely right. The whole of it deserves a more careful and lengthy response than I can here offer. This intervention is just a request for clarification of Robert’s position.

Robert deploys a remarkable counterfactual in aid of his point. He imagines that Gerry Bradley is nominated to the federal bench. He imagines (he thinks) that I have been very hard on Roe in a scholarly article or at a Congressional hearing, all but saying that it should be overruled. (Note to Robert: no need to imagine: it’s true. And that is one reason why my
nomination is and will remain a counterfactual.) Thus far I think that
Robert maintains I could still be a qualified nominee. Thus far described I would not be unsuitable due to bias or prejudice or the appearance of impartiality. Robert even adds that, if I were nominated tomorrow, it would be a “fine” idea. (I am now forwarding Robert’s post to my Dean.)

Robert still doubts that I should answer questions about reversing Roe at my (hypothetical) confirmation hearings. He cites the code of conduct for judges. I surely agree with him that, if the code clearly prohibits me from answering, there’s an end to it. No overriding moral norm (of candor or full self-disclosure) would prevent me from politely declining to answer. And I would cite the code to the Senator asking. My question to Robert is whether he rests his case right here; the positive law rather clearly requires reticence, and that law should be observed. If the premise about clarity is correct, then I agree.

But then the code would be a little silly, or at least idle. It would seem to be merely about appearances, even about incomplete or misleading
appearances. For my views on reversing Roe would remain unmistakable. I
would still surely possess views which would ….what? make me biased if I were to state them here, today, at my hearing. Can’t be that. Or, create the appearance of bias if I stated them here today? Maybe, but don’t forget that my views on Roe remain in the public domain; they’ve never have been publicly retracted or modified.

Repeating my anti-Roe views at the hearing probably does add something to the appearance and reality of my “bias” in any abortion case coming up to the Court. But not very much, I think. Not enough to really worry about. My question to Robert, now is: if you mean to rely upon “policy” or the “point” or the sense of the law to clarify uncertain language, is this incremental appearance of bias the point?


Roberts vs. Rehnquist


Numerous commentators have by now remarked on John Roberts’s wry sense of humor, as revealed in memoranda released from his service in the Reagan administration. My favorite jibe of his so far is one I haven’t seen mentioned elsewhere. In 1994 in a now-defunct law journal called the Public Interest Law Review (edited by The Weekly Standard’s Terry Eastland), Roberts published an article reviewing the 1992-93 term of the Supreme Court. (My thanks to Gerry Bradley for tracking down the article in his library, as mine didn’t have the journal.)

In the course of the article Roberts, who had recently left the Solicitor General’s office and returned to private practice following the election of President Clinton, wrote critically of the decline that had occurred over the preceding several years in the number of cases heard and decided by the Court. Then came this deadpan put-down of the justices who had engineered this change: “Speculation as to the reasons for the significant drop in decided cases abounds. Most observers are properly unwilling to credit one obvious explanation, that this is what you get when you give people complete job and salary security and tell them to decide for themselves how much work to do.”

That phrase “properly unwilling” achieves the intended effect with a sidelong glance–just enough obliqueness to give Roberts an “out” if someone accused him of having been harshly critical of the Court. Those who are “properly unwilling to credit” this explanation would include, obviously, the elite lawyers of the Supreme Court bar who appear before the justices frequently–such as Roberts himself at the time. But it is hard not to believe that Roberts himself liked the “obvious explanation.”

But the jibe raises an interesting question. Most students of the Court recognize the drop in the number of fully argued cases on the Court’s docket–from about 150 a year to about 85–as one of the chief aims of Chief Justice Rehnquist, who appears to have believed that the Court’s workload was too heavy when he was elevated from associate to chief nineteen years ago. Will Roberts, who once clerked for Rehnquist before he became chief, struggle to reverse this trend and re-expand the number of cases on the Court’s docket? At one point in his article, he remarks on the disapproval Justice Byron White often expressed of the trend of the shrinking docket–and on how that voice would now be stilled with White’s 1993 retirement. Perhaps Roberts will see himself picking up the fallen banner of Justice White, making the case within the Court for a fuller docket and especially for settling “conflicts among the courts of appeals,” a need particularly noted by White in his day.

This is all admittedly speculative–another reason to ask Roberts lots of questions!–but if I read these tea leaves correctly, we could see a battle in future of Roberts vs. Rehnquist, the protégé vs. the mentor. It might be interesting to watch.



I’ll take a shot at Ramesh’s point, which I believe Matthew made the other day, about the illogical of treating differently a law review piece from a judicial determination. They are quite different. Authors of opinion pieces, like law review articles, are only bound by the limits of their imagination (tempered by the watchful eyes of their editors and potential critics). Judges are (supposed to be) bound by the law and facts before them. Indeed, there is an entire set of rules imposed on a judge that he is required to follow in adjudicating cases, and the manner in which he does or does not adhere to them is important as well — including constitutional limits. The writer and the adjudicator have two different roles. That’s not to say that law review articles aren’t worth reviewing to try to discern a nominee’s judicial philosophy, but they’re not as compelling, to my way of thinking, as a judge’s jurisprudence.

re: “Dumb Ass Questions”


A Date Is Set


(Partial) Reply to Alt


I’m not addressing the question of whether a nominee is bound not to provide the type of answers that are in dispute here by the Code of Conduct for U.S. judges. If it is true that they are so bound, then the problem is with the code. Its position is silly. Alt doesn’t even really try to make it seem less silly. It attempts to distinguish between two situations that do not involve a real difference that should concern anyone. It accepts the possibility that a professor with a long paper trail including calls for the overturning of Roe can be chosen by the president and backed by conservative senators for that reason. But it treats a nominee who says the same things in his testimony as unethical. (Is our nominated professor supposed to answer a question about whether he still agrees with his past writings? Doesn’t either answer to that question make the inconsistency worse?) It seems to me that no very strong case can be made that one of those scenarios threatens judicial impartiality and the other doesn’t. If you’re worried about judges’ pre-judging pending or impending (or theoretically, conceivably impending) cases, or “appearing” to do so, you’d have no necessarily greater reason for worry in the second case than in the first. The distinction is entirely the result of the code, and that’s an indictment of the code, not a reason to believe in the reasonableness of the distinction.

Rome & Roberts


Media Distortions of Roberts’s Executive-Branch Record


NRO has just posted my essay exposing the gross distortions in a single Washington Post article of Roberts’s record as a special assistant to Attorney General William French Smith. Time permitting, I intend to write a series of follow-up posts on Bench Memos pointing out similar distortions in other articles in major newspapers.

“Dumb-ass questions contest”


This is a great idea.

“Do we have to follow Nan Aron off a cliff?”


Dems get a clue? From the Legal Times:

Liberal interest groups could not have imagined that they’d be on the outside looking in during what was supposed to be a battle over President George W. Bush’s first Supreme Court nominee.

But that’s what has essentially happened, as Senate Democrats chart a more moderate course without them.

“Why do we have to fight? Just to fight?” asks one Democratic staffer. “Perhaps we should just declare victory and move on,” he says, noting that Judge John Roberts Jr. is almost certainly better than other people whom Bush might have been expected to nominate, such as U.S. Court of Appeals Judges J. Michael Luttig and Janice Rogers Brown.

“Do we have to follow Nan Aron off a cliff?” he adds, referring to the veteran judicial campaigner who heads up the Alliance for Justice.

For Senate Democrats, the apparent disavowal of longtime shoulder-to-shoulder allies such as the Alliance for Justice and People For the American Way can be viewed as a political move, a bid to appeal to the mainstream.

That has left those interest groups with a similar choice: whether to join their Democratic brethren and perhaps burnish their own credibility with moderates, or to ratchet up the rhetoric over a nominee who seems a sure bet to be confirmed in order to fire up their liberal base — and risk alienating everyone else.

Response to Bradley: A Question of Timing & Context


In Gerry’s last post, he states: “I do not see why it is categorically wrong to ask a nominee: do you have a settled view on this, Mr. Nominee, and if so would you publicly state what it is?” Now, I think we can agree that the question is not whether it is wrong to ask the question, but rather whether it is wrong to answer the question. Here, context matters. Thus, if Gerry wanted to issue a statement, perhaps in testimony to Congress, stating that as a law professor, he firmly believes that Roe was wrongly decided, and that he agrees with the school of interpretation that says that stare decisis should carry less or little weight in constitutional cases, thereby arguing that Roe should be on the Supreme Court chopping block anytime it comes up, that’s fine as a matter of ethics law. [I should note that I have never chatted with Gerry about either of these issues, so this really is just a hypo, and is not meant to actually speak for his views on the issues.] But if the President were tomorrow to appoint Gerry to the federal courts—a fine idea, I might add—he becomes a nominee, and is bound by the Code of Conduct for U.S. Judges, which admonishes nominees not to express opinions about pending or impending cases. Then there is a serious issue about whether he could make the same statement.

Admittedly, there is a double standard here. A judge can issue a statement in a judicial opinion, in which he or she makes it perfectly clear that a certain legal theory is frivolous, thereby creating a binding precedent which provides litigants with a solid insight into the fact that the judge is unlikely to side with the opposite view in the future, even if their case is pending or impending before the judge. (Of course, Justices Stevens and O’Connor have shown that consistency is a hobgoblin which fastidiously avoids them.) But that same judge is not supposed to go out to give a speech opining on the very same issue if cases are pending or impending. Again, context matters: in one case the judge is exercising judicial power and actually judging the case, in the other, he or she is seen to be prejudging cases outside the context of the bench.

I think Gerry was correct in his previous post, in which he suggested that the questioners and the respondent will both dance around how the questions are asked and answered in attempts to assure everyone that the questions do not go to future cases. But we all know that the claim that they are not seeking information about how the nominee would judge future cases is a fraud, and, given questions that Senators actually asked nominees such as Estrada (some of which I mention here), it is a poorly orchestrated fraud. The questions are intended and designed to elicit how it is that the respondent will judge the next hot-button Roe-like case to come before the court. And the desire to get answers is not limited to Schumer, but extends to writers on this very page, who think that nominees should be forced to say what they think about Roe and gay marriage, almost assuredly not out of some academic interest, but because they know that these issues are impending before the court, and they want assurances that the judge will rule in a manner with which they agree. This is precisely what the Code and recusal statutes attempt to avoid: the appearance that a judge has already made up his or her mind about pending or impending cases.

Of course, this does not mean that we are hamstrung, and cannot know anything about how the nominee would approach cases. Indeed, we can know more. We can ask questions about legal philosophy and methodology (some of which I outline here <>), which at once will be more helpful in revealing how it is that the nominee will address novel, expansive, living Constitution-type claims, while not violating the letter or the spirit of the ethics codes. Conservatives should be more concerned about philosophy than outcomes. For example, I am reasonably sure that Judge Harvey Wilkinson would answer the Roe question to the satisfaction of many conservatives, but I think that conservatives should find it troubling that his legal philosophy, as expressed in a law review article he wrote, suggests a very expansive view of substantive due process and privacy rights—one which would create a constitutional right to personal appearance. Here, asking the pointed Roe-like questions would be far less illuminating than asking him about his thoughts on how we determine the scope of unenumerated rights, such as those that he sought to have recognized in his article.

Accordingly, I believe that there is a reason to treat a nominee differently than judges or academics who have previously made their opinions known. Furthermore, I believe that conservatives and liberals who want to know what a nominee believes about certain cases are far better served by asking questions about the judicial philosophy and methodology that infuse the decisionmaking process. This way, the questioners can learn more, and the nominee is not asked to give his precise views about cases which are likely to come before the court.

No illusions


The conventional wisdom has it Roberts will be confirmed without much of a fight. In Roll Call this week, GOP pollster David Winston says don’t bet on it [sub required]. Two weeks before John Roberts was named, one shrewd conservative laid out the “stages of battle” to come no matter the nominee:

1. Nominee is named. Dems say they will be open-minded and fair but have important questions. (Honeymoon period.)

2. Dems express concern over “issues that have been raised.”

3. There will be a personal accusation, at first anonymous; Dems say the charge must be investigated and taken seriously.

4. First Dem senators will state they cannot support nominee.

5. On substance nominee is labeled “extreme,” with media and Hollywood now in full-throated opposition.

6. Dem senators say they need more time and information.

7. Leftwing groups demand filibuster.

The Left (correctly) sees this confirmation as about not only John Roberts, but about the next nomination, the one after that, the 2006 senate elections, and 2008. No way they step out of the way like good sports.

Our Allies on the Left


The Left faced a choice between two strategies in dealing with the Roberts nomination. But unable to embrace either of those two strategies, it has instead adopted a third course that is likely to prove most beneficial to conservatives.

The first strategy would have been premised on the widespread assumption that Roberts will be confirmed. Under that strategy, Democrats would try to paint as moderate a picture as possible of Judge Roberts in order to set up the fight over the nominee for the next Supreme Court vacancy. In that scenario, Roberts would be confirmed by a huge margin—90-10 or better. When the next vacancy develops, Democrats would then use their votes for Roberts to portray themselves as reasonable and would attack the next nominee on the ground that he is no John Roberts.

The second strategy would have been to launch an all-out war on the Roberts nomination. Under that strategy, Democrats would, from the outset, have labeled Roberts an extremist. They would have used every opportunity to mobilize their base to try to defeat the Roberts nomination and, failing that, to inflict serious political injury on the administration in the process.

The third course—whether it deserves the label of “strategy” is dubious—that the Democrats have in fact adopted is one of using document demands and other maneuvers to try to delay the Senate’s confirmation of Roberts, in the hope that ammunition to use against him will develop in the meantime. This strategy gives every promise of backfiring. Set aside for now whether the White House has adopted a coherent position on which documents from Roberts’s past service in the executive branch should be made available. It now appears that these documents will, on the one hand, show that Roberts is a strong conservative (insofar as any political label can properly be applied) on constitutional and legal policy issues, but, on the other, not give Roberts’s enemies any significant ammunition to use against him.

What all this will mean in the end, I think, is very encouraging for conservatives. Here’s my admittedly somewhat hopeful, but (I think) realistic, set of predictions:

1. By a large margin, the American public will recognize that Roberts deserves confirmation.

2. Left-wing groups will nonetheless push Senate Democrats to vote against Roberts, so he will probably receive no more than 60-70 votes in favor of his confirmation.

3. The American public will therefore increasingly understand that Senate Democrats are not reasonable and will discount their screeching about the next nominee.

4. The next nominee, no matter how conservative, will not be perceived as markedly more conservative (or less deserving of confirmation) than the John Roberts that Americans come to know from the documents that are made available.

Oh, Margaret!


Margaret Carlson today strikes me as just not getting what the courts are about, which…is our problem today, of course. If how John Roberts prays on Sunday or where he prays on Sunday is going to have a direct efffect on how he rules in a specific case, you’re still going to know what you need to know about him by asking questions of him re: his judicial philosophy.

I will say one thing though, and I’ve said it before here. I don’t think the whole “bigoted”/”anti-Catholic” angle necessarily helps conservatives strategically. It’s broader than hating Catholics–it’s a hostility to a bulk of America. Conservative-leaning people who are guided by faith in God. Some Senate Dems would put a test in place that would screen out these types of folks if they could. And they should be called on it if they try.

Ramesh’s Question About Questions


In sorting through the question about questions (by Senators to a judicial nominee), we should bear in mind that John Roberts is the exceptional candidate. I mean here that, for him to be led into revealing where he stands on Roe, federalism, same-sex marriage, the church-state issue du jour–or on a lot of other issues–we would learn something we do not already know. It would be news. And it might seem to some (though not to
me) that Senators were prying, or compromising his openness and impartiality.

But most nominees to the federal bench have committed themselves on matters about which Roberts has either been silent, or has spoken only in roles which refract his own opinions and beliefs. Almost any professor nominated to the bench will have spoken more or less definitively on such matters. Most sitting judges nominated will have, too. Even politicians sometimes get called to the bench. They have been known to shoot their mouths off, too.

The point is that we know what these folks think of so many issues on which Roberts’S views remain mysterious. There should be little doubt, for example, where Mike McConnell would come out on church-state issues, or where Mike Luttig would stand on partial-birth abortion, or where Oririn Hatch stands on abortion laws more generally. Do they all lack some requisite judicial objectivity? Openness? Impartiality? If we discovered somehow that Roberts has similarly definite views, would he?

The limit of any restrictive account of Senatorial questioning is right here: no sound account will implicitly disqualify so many obviously qualified nominees, including so many sitting judges. And, if possessing publicly stated views on important but perhaps controversial issues does not disqualify a nominee (it shouldn’t), I do not see why it is categorically wrong to ask a nominee: do you have a settled view on this, Mr. Nominee, and if so would you publicly state what it is?

Amar Misrepresents Roberts


In the NYT UC Hastings law prof Vikram David Amar misrepresents Judge John Roberts’s much-discussed dissent in the Rancho Viejo case by referring to Roberts’s “controversial opinion that Congress lacks the constitutional power to enact the Endangered Species Act.” As I’ve already noted, this is simply not so. Roberts called for rehearing en banc to resolve the intercircuit conflict, as well as “to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.” He never said that “Congress lacks the constitutional power to enact” the ESA. I have the utmost respect for Professor Amar, so this error may have been inadvertent (perhaps even the result of the NYT’s editing process). It is a misrepresentation of Judge Roberts’s written opinion nonetheless.


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