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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.

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“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.)

ZZZ



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This Federalist Society thing seems like quite a distraction, and one due probably to a misfire strategy from the White House, making a big deal out of Roberts not being a member of the Federalist Society. I tend to agree with this guy:

“What matters is whether he hung out with them and not whether he signed the form or wrote the dues check,” said David Garrow, a law professor at Emory University. “What’s important is the intellectual immersion.”
Basically, that conservative lawyers know and think highly of Roberts is not irrelevant. It’s kinda helpful to know. That he participated in some FedSoc stuff over the years is normal. The group–which you’d think were right out of the Da Vinci Code it is given such an air of mystery and nefariousness in the MSM–obviously wasn’t a formative experience in the justice’s life. But the corrections-insisting about his “membership” seems like it has just provided–what’s that phrase, Desperate Dems?–with a very silly controversy in a nomination battle that doesn’t have much for them to work in their effort to oppose and obstruct.

Defending Miranda’s Right



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The New Republic’s latest issue showcases liberal tactics at their worst. Senior editor Michael Crowley hacks out a predictable hit piece on Manuel Miranda, chairman of the Third Branch Conference, who, as senior nominations counsel to the Senate Judiciary Committee and nominations counsel to Majority Leader Bill Frist, created many of the political messages and structures we are using today in the Supreme Court fight, including the Senate’s “Miranda Plan” for a Supreme Court nomination.

Miranda’s efforts helped transform an issue, once considered just below campaign-finance reform in importance, into a GOP winner. On October 3, 2003, Miranda told The Hill newspaper that Republican candidates would sweep the South and defeat Tom Daschle based on the message of obstruction of judges, and more importantly, he worked to make it so.

In part, he got everyone’s attention through the use of language that went past dry lawyer’s parlance and, in part, he did it by putting himself at risk where others might have cowered and wrung their hands.

A hit piece from TNR is, of course, a badge of honor for conservatives.
Two years ago TNR put my boss, Committee for Justice Chairman Boyden Gray, on its cover and went into a tizzy over his collaboration with religious conservatives in the judicial confirmation wars. It was a clumsy attempt to divide Gray from other conservatives and quell his enthusiasm for the fight. It didn’t work.

The current article on Miranda is similarly ham-fisted.

TNR hit pieces have three possible purposes: to play to its generally liberal audience, discredit or marginalize a target who has proven too effective, or to discourage that target.

Crowley no doubt satisfied left-wingers. And there will always be short-sighted conservatives affected by a liberal hit on one of their leaders, the kind of people Theodore Roosevelt described as the critics of “The Man in the Arena.” Such people help explain our weaknesses on the Right. But Miranda’s effectiveness as a leader is based solely on his talent and ability to see the play before it happens, not on the loyalties of the weak-kneed.

And an effort to slow down Manny Miranda, I have found, is like trying to evaporate an iceberg with a hair dryer. It will, at most, annoy him.

Particularly ironic in TNR’s attempted putdown is the number of sloppy errors and transparencies. My favorite is the description of Miranda leading a conference call in an “untucked shirt.” In fact, it was a linen Cuban guayabera that is supposed to be worn untucked. Miranda is famous for them. So much for cultural sensitivity.

A second slight is the description of Miranda having attending a “small law school.” In fact, Miranda attended the largest law school of the University of California.

Of course, Crowley recycles all the Democrat spin over Memogate, the scandal over the discovery of unprotected Senate Democrat documents showing corruption and probably unlawful activity in the blocking of judicial nominees. In 2004, Democrats created a smokescreen, aided by less than nimble Republicans, to hide their own wrongdoing.

The media ate it up as they do all Washington leak investigations involving Republicans. In fact, there was no leak at all as the Senate itself defines it. And no, Miranda wasn’t fired. No, he was never found to have violated any Senate rule, ethic, or law. He never hacked or downloaded 4000 some documents, another favorite of the Left. And Miranda never stole a thing: the D.C Court has already ruled on the public interest in Senate documents.

Crowley displays zero interest in what the Democratic documents actually spelled out, or the fact that Miranda acted in keeping with the Code of Ethics for Government Service. In fact, Miranda was so unperturbed by the Democrats’ false charges that he sued for a Declaratory Judgment to get the court to address the Democrats’ allegations and wrote a Law Review article to boot. (You can read more about the politics, ethics, and law of Memogate at www.mirandafund.com.)

Although noting that Miranda came out of Memogate as a hero to social conservatives, Crowley’s thrust is to paint Miranda as a “pariah”
and “a forgotten footnote.” He writes: “For much of last year, Miranda was unemployed, and he was forgotten as the judicial wars temporarily subsided during the 2004 election campaigns.”

It would have taken a few simple questions to learn that Miranda has been running conference calls on judicial nominations since May 2004, keeping together the coalition he helped assemble, that he was invited to raise money for Senate campaigns, and speak on campuses all over the country.

Presumably it would have undermined Crowley’s thesis to report that at a recent Republican National Lawyers’ Association event, and other gatherings, I have seen rooms of people erupt in applause when Miranda is introduced. And it is not surprising that Crowley leaves out entirely that former Attorney General Ed Meese brought Miranda to the Heritage Foundation as a Visiting Fellow. Many conservatives in Washington would love to be that kind of pariah.

Crowley also digs up a fiction based on a half truth about Miranda’s role in Georgetown University’s 1989 alumni litigation. I was senior news editor at The Hoya newspaper and know a little about that case. Had Crowley looked into it, he might have learned that Miranda’s successful efforts salvaged the Georgetown Alumni Association’s assets, saved 40 jobs, and that Miranda defeated the famously aggressive firm of Williams & Connolly on ten counts of summary judgment.

In fact, Crowley missed entirely that Manuel Miranda has been a hero in Washington for over two decades for his efforts to keep Georgetown University authentically Catholic, efforts that touched every Catholic college in America. And Miranda became a pro-life hero when he got Pope John Paul II himself to force Georgetown to de-fund a pro-choice advocacy student group.

Crowley speculates as to why reporters keep going back to Miranda for quotes. It may be the same reason why leaders on the Left are afraid to debate him: he is brilliant and does not hide from the truth. There is, of course, another reason. Hit pieces like Crowley’s are ginned up only because the target is threatening the Left and that makes reporters call Miranda, and that makes Miranda even more useful to his cause.

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Desperate Dems



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Congressman Robert Wexler is really looking for anything on Roberts. The Florida Democrat says talking to Jeb Bush during the 2000 election is a SCOTUS disqualifier. Huh? Seems Hillary Clinton has the smart strategy on this pick.

Questioning



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Thanks to Concerned Women for America for this:

[I]t is our responsibility as members of the [Judiciary] Committee … in advising and consenting, that we are challenged to ascertain the qualifications and the training and the experience and the judgment of a nominee, and that it is not our responsibility to test out the nominee’s particular philosophy, whether we agree or disagree. (Sen. Ted Kennedy, Committee on The Judiciary, U.S. Senate, Hearing on Nomination of Thurgood Marshall to the Supreme Court, July 19, 1967)

Gee, Teddy was far more cautious back then than any of us are today about the questioning of Roberts. Now, Kennedy demands answers to all kinds of specific questions he promises to ask. But, then again, he never was very good at getting his story straight.

re: Questions



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We appear all to agree that Gerry Bradley had it about right in describing what sorts of questions ought to be asked of, and answered by, Supreme Court nominees. I’ll make my last contribution (for now) on this subject by reproducing one of Senator Schumer’s questions and commenting on it:

“Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?”

I can’t see what could be objectionable about this question, under any sensible theory of the ethical obligations of judges–including any reading of the Code of Conduct. Alter the circumstances just a bit. Suppose the president had nominated someone whose views were known on this subject–someone who had published a law-review article excoriating Roe, for instance. Nothing could possibly be improper about asking that nominee whether he still believed what he had published on that score, could it? And we would rightly think ill of the nominee who had published such views but turned coy all of a sudden before the Judiciary Committee, wouldn’t we? I think we would rightly insist on a reaffirmation or a repudiation, and we would not think either one worked any harm to a future litigant where the fate of Roe was at stake.

Now shift back to the nominee, like Roberts, who has said nothing publicly on the question. Everything else remains the same, except we want to know whether he has some hitherto unpublished views on Roe. How can asking whether he has a view, and what it is, be improper? It passes my poor understanding how it could be. And if the canons of judicial ethics exist to safeguard the impartiality of the courts before which litigants appear, then I don’t see how that purpose is served by confirming the judge who has a private opinion and keeps mum. Or are we prepared to say that no one is fit to be confirmed who has ever published an opinion at all? We don’t want to say that, do we? Nothing could more strongly guarantee the squelching of candor by lawyers and legal scholars who have any ambition to serve on the bench, or the nomination of the candid by presidents who want to recognize brilliance where they see it.

RE: Whelan on “Sandy’s Catch-22”



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Ed may be right about a vacancy being required only for appointment, not nomination–I’ll reserve judgment while I think about it–but if the condition set forth in O’Connor’s letter has legal force, then she has unilaterally nullified the president’s recess appointment power, since she insists on senatorial “confirmation” before she will clean out her desk. And that cannot be admitted without saying that her condition supersedes the Constitution.

Greens Warming to Roberts?



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The chances of any concerted environmental opposition to the Roberts’s nomination are shrinking. Today, Douglas Kendall of Community Rights Counsel has an op-ed explaining why Roberts is “different” than many other potential nominees who CRC would have opposed: “Roberts is not the Supreme Court justice I would choose. But before Senate hearings begin, I’m open to the possibility that he will not be what I most fear.” But don’t expect environmentalists to rush to Roberts defense. Kendall makes clear he may still oppose Roberts’ confirmation and (regrettably) calls for release of privileged memos from Roberts’ tenure at the Solicitor General’s office.

The Runner-Up



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Robert Novak reports today that President Bush in fact did come close to nominating Judge Edith Brown Clement to replace Justice O’Connor:

Mentioning the little-known Judge Edith Brown Clement as front-runner for the Supreme Court vacancy was not a ploy to obscure the eventual selection of Judge John Roberts. She was the real runner-up, after evoking mixed reviews from conservatives.

President Bush was very much impressed with Clement during his interview with her, and sources say he gave her a White House tour. However, anti-abortion activists were not happy, contending that she has no record on their issue. Clement’s supporters say she is very well thought of by conservative Justice Antonin Scalia and that she would follow his lead on the court. Princeton Professor Robert P. George, a social conservative and prominent Catholic layman, is a strong Clement backer who vouched for her.

Given Bush’s early inclination to replace retiring Justice Sandra Day O’Connor with another woman, the reason why he passed over Clement is not clear. Sources close to the selection process speculate that the president may have suspected that Clement’s supporters were too vocal in publicly promoting her.

This will only fuel speculation that she’ll be nominated if there’s another retirement.

Kerry Seeks Documents



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The AP is reporting that Senator Kerry is already calling for the release of all legal documents and memos authored by John Roberts while he worked in the Reagan and Bush 41 administrations, in the White House counsel’s office and solicitor general’s office, respectively. The story also reports that Democrats want more details on Roberts’ work for Florida governor Jeb Bush during the 2000 election recount. Are they next going to ask for Roberts’ correspondence with private clients?

Greens Ponder Roberts



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Grist reports on the environmental movement’s cautious reaction to the Roberts nomination.

Re: Sandy’s Catch-22



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The Catch-22 might exist if O’Connor’s resignation were effective upon her successor’s “appointment”. But because it’s effective upon her successor’s confirmation–an act that precedes and is discrete from appointment–there’s no problem. A vacancy is needed for an appointment, but not for a nomination.

Sandy’s Catch-22



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Ed Whelan speculates about the effects of a delay in Judge Roberts’s confirmation, and along the way he notes that Justice O’Connor’s “resignation is effective only upon her successor’s confirmation.” I’m not sure that is altogether true. It may be what O’Connor said, but that doesn’t make it so. Some legal scholars I know had an e-mail discussion of this a while back, and here’s what I conclude from it.

O’Connor’s July 1 letter to President Bush declared that it was “to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.” If those last nine words are understood as setting a condition on her retirement, such that she continues in office and would take part in the next October Term of the Court if Roberts’ confirmation were delayed or defeated–or even if Bush gave Roberts a recess appointment, since that would lack “confirmation”–then O’Connor has created a classic Catch-22.

Here’s why. Title 28 of the United States Code, section 1, reads: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.” Article II, section 2 of the Constitution tells us that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” For the president to appoint, there must be a vacant seat, whether just vacated or newly created. No tenth seat has been created. If Justice O’Connor remains in her seat today, then there is no vacancy among the nine available seats, and President Bush’s nomination of Roberts is a legal nullity. And since there is no legally cognizable nomination for the Senate to act upon, there is no possibility of a confirmation, and Justice O’Connor has been pulling our legs and isn’t leaving the Court after all. What a fun three weeks we’ve all had for nothing!

But of course this is not how the world understands the present situation, and rightly so. President Bush has considered the O’Connor seat vacant since July 1, and has duly nominated Roberts to fill it, and the Senate is poised to go through the confirmation process. These actions speak louder than O’Connor’s words, and it is those words that should be considered a legal nullity. There is in fact a vacancy, and she cannot set a condition that would make it otherwise, remaining on the Court as one of the associate justices. Come what may, she’s off the bench, and has been since July 1. I never thought Justice O’Connor understood legal principles with any particular clarity, and she departed from the Court in just such a way as to prove me right.

Schumer’s Questions



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For the record, I like almost all of Senator Schumer’s questions, and I too would like to know Judge Roberts’s answers. Of course, I’d like different answers from the ones I expect Sen. Schumer would like. But almost without exception, the questions are fair game and even fairly stated. I see no ethics problem with answering any of them.

The Question of Questions



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The issue isn’t what senators are going to ask, and whether they are bound by judiciai ethics rules, but how Roberts can answer. He will be on some bench, either the high court or his current court, and he must be mindful of his ethical obligations. And senators know that. I agree with what Gerry had to say, which is what I tried to say earlier but perhaps inarticulately. The senators have a wide range of questions they can ask, but if they press in ways that Roberts can’t answer, he won’t.

Sur-reply to Franck



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First, it is important to note that the code is not merely “written by judges to guide judges” as Matt suggests. Rather, as the Code’s official commentaries state, “[t]he Code is designed to provide guidance to judges and nominees for judicial office.” (emphasis added). This is a subtle but important distinction for our present inquiry. While Matt is correct in stating that the code isn’t the “law of the land”–to which I would add that the Code does not carry civil or criminal penalties–the code nonetheless provides standards for conduct which can be and are applied in judicial disciplinary proceedings brought under the U.S. Code, which is the law of the land. It is therefore not surprising that while Canon 3 at issue speaks in aspirational “should” terms, the comments consistently refer to those “shoulds” as “duties.” In this case, the should/shall distinction doesn’t give much leeway to the nominee, because the entire code is written in terms of should, but behind those “shoulds” is a hammer of disciplinary enforcement. See, e.g., McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States, 83 F. Supp. 2d 135 (D.D.C. 1999), aff’d in part and vacated in part on other grounds, 264 F.3d 52 (D.C.Cir. 2001), in which the judicial council imposed discipline on a judge for violations of Canon 2(A) and 3(A)(3), both of which use the aspirational should.

Of course, this does not even reach the recusal statutes, or, to my mind, the equally important prudential reasons against speaking about how you would handle cases which are likely to come before you.

Re: I Almost Don’t Believe



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It turns out that my wife has complained to the Washington Post ombudsman about Robin Givhan’s weird fashion article today:

Yes, I know there are more pressing news items than children’s wardrobes, but Ms. Givhan’s July 22 article on the Roberts’s family clothes was simply too irritating. I am not sure which is more irritating: that she is writing about young children of public figures or the substance of the comments themselves. I’ll let others focus on the appropriateness of the former while I give my take on the latter.

She calls the children’s clothes “costumes” and ridicules the clothes for not being trendy. The children’s attire is simply classic, church clothes that I see on Sundays, yes, especially Easter Sunday, and at weddings. My daughters love their lace-trimmed anklets and shiny Mary Janes. My son, when he was younger, was even seen in seersucker (with bucs instead of saddle shoes). I doubt that Mrs. Roberts ran out and purchased special “costumes” for the occasion. I agree with Ms. Givhan that visitors to the White House should dress appropriately. For children, that usually will mean church clothes. They save the costumes for Halloween.

I’m, of course, rather uncomfortable being publicly associated with someone who expresses such extreme views, but I guess that’s part of the “for better or worse” vow.

Re: Roberts in Action



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More on the case Shannen discusses.

Here’s a tough test: Let’s say that you were a police officer and at 1:00 a.m. you spot a car without a functioning light for its license plate. You pull the car over and conduct a records check, which indicates that the car’s temporary license tags had been reported stolen. You also discover that those tags had been altered to match the car. The car’s driver can’t produce the car’s registration or a driver’s license. A check of the vehicle identification number indicates that the car had once been registered in Virginia but is no longer registered there.

Might it be reasonable to think that the car might have been stolen? Not according to the two Democrat appointees in the opinion issued by the D.C. Circuit today in United States v. Jackson. But yes, in Judge Roberts’s view in dissent.

Next question: Might it be reasonable to think that the car’s trunk might contain some evidence—the car’s real tags, items identifying or belonging to the real owner, or tools used in car theft—that the car was stolen? Let’s say, further, that you had run across stolen tags on ten previous occasions and that on six or seven of those occasions the vehicle’s real tags were found in the trunk. Is it reasonable to check the trunk? Again, not according to the two Democrat appointees. But yes, according to Judge Roberts’s dissent.

My favorite part of the majority opinion is the assertion that real tags in a trunk simply can’t be evidence of a crime “because there is nothing illegal about having such tags in the trunk of an unregistered car.” There’s nothing illegal either about having blood all over the floor of a room in your house where a person is thought to have been killed. But that might fairly be considered evidence.

It seems to me that some Democrats were calling for a nominee with common sense—a quality particularly appropriate to Fourth Amendment judgments of reasonableness. I think it’s clear that President Bush has given them one.

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