Bench Memos

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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.

The Question of Questions


The Senate Republican Policy Committee has released a paper arguing that for nominees to take positions on specific constitutional questions would compromise judicial independence. I’ve said my piece on this topic in the latest issue of NR, but I can’t resist making a brief comment. The dangers the paper points to are real, but there are prudential concerns on the other side of the ledger—risks, that is, of having a rule that precludes such questioning. It seems to me that the balance of risks has shifted in a way that makes the case for questions about specific constitutional issues stronger. The unprecedented power of the judiciary in the modern era makes the paper’s reliance on precedent unhelpful, or at least not dispositive. And the fact that all the sitting justices have spoken against such senatorial questioning doesn’t get us very far toward resolving the issue, either. Of course from the viewpoint of someone who went through confirmation the process should be made easier; and of course from the viewpoint of someone on the Court the political checks on the Court are likely to appear a nuisance.

Worrisome Impact


Give AP writer Richard Ostling (re: the AP story on Catholics previously mentioned) credit. Most readers felt invited to worry about the impact on the Court of so many Catholics justices. Savvy readers got more out of it. Sorry experiences with William Brennan and Tony Kennedy make them worry about a different impact: that of the Court upon a justice’s Catholicism.


More Re: Dellinger on Disclosing SG Office Documents


It turns out that Walter Dellinger’s argument that Roberts’s situation is different from that of a career lawyer like Estrada completely collapses in practice. Specifically, I am reliably informed that it has long been a common practice for deputies in the Solicitor General’s office to note their agreement or disagreement with a career lawyer’s recommendation by handwriting notations on the career lawyer’s memorandum. In other words, disclosure of Roberts’s work product would necessarily entail disclosure of lots and lots of memos by career lawyers, and would therefore have the severe chilling effect that Dellinger and other past heads of the SG’s office decried in their 2002 letter.

Re: Leahy’s Litmus Test


If you want to see what kind of judge earned Senator Leahy’s approval as “a judge of proven competence, temperament, and fairness” and “an excellent choice,” take Lee Sarokin. Please!

In 1994, President Clinton nominated then-district judge Sarokin to be a judge on the U.S. Court of Appeals for the Third Circuit. As Senator Hatch accurately stated at the time, Sarokin had earned a reputation as a stridently liberal judicial activist. Indeed, Sarokin described himself as a “flaming liberal” as a judge. The Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent.” The New Jersey Law Journal had reported that Sarokin “may be the most reversed federal judge in New Jersey when it comes to major cases.” A broad range of police and victim’s groups announced their opposition to his nomination.

In a wildly lawless ruling, Sarokin declared that the Morristown public library couldn’t enforce its written policies to expel a homeless man who regularly engaged in offensive and disruptive behavior and whose odor was so offensive that it prevented the library patrons from using certain areas of the library and prohibited library employees from performing their jobs. “[O]ne person’s hay-fever is another person’s ambrosia” was among Sarokin’s justifications for preventing a community from setting even minimal standards. Here’s a fuller memo on this case and Sarokin’s broader record that Senator Hatch submitted on the Senate floor.

With Leahy’s support, Sarokin was confirmed to the Third Circuit a mere five months after his nomination.

Re: The Da Vinci Code: SCOTUS version


Kathryn, in its discussion of “how faith might influence law,” the article you link to includes this stupid statement: “Two of the Catholics on the current court–Antonin Scalia and Clarence Thomas–are abortion foes.” Is it too much to expect an AP reporter to understand that the constitutional position that Scalia and Thomas take on abortion–that the Constitution does not speak to the question but instead leaves it to the people to adopt protective or permissive abortion laws–is substantively neutral on abortion?

Re: Dellinger on Disclosing SG Office Documents


A reader offers this interesting forecast regarding Walter Dellinger’s peculiar statement that Roberts’s SG documents “will be made public”:

He walked right up to the line and then swerved to avoid calling for the release of Roberts’ SG documents (thus not contradicting the previous letter he signed). He predicted their release instead. Why?

Because his op-ed is a political, not a legal document. The Dems have had no credible response when confronted with the former SGs’ letter. . . they needed a talking point! Dellinger has given it to them. You watch. Shortly the Dem pols and strategists will start saying the memo is no longer operative. They’ll “quote” Dellinger as saying this case is different and the docs should be released in Roberts’ case. Dellinger won’t come forward to correct the record. Voila! The letter is “inoperable” and Dellinger has avoided any hard questions about his “contradictory” positions.

Re: Leahy’s Litmus Test


Let me see if I have this straight: In Leahy’s view, a Supreme Court justice should invent rights that aren’t in the Constitution and ignore rights, and limitations on government power, that are in it. To do anything else would be “activist”.

The Da Vinci Code: SCOTUS Version


New AP Story: “Roberts would be fourth Catholic on Supreme Court; impact unknown”. How ominous does that sound?!

The Reluctant Cultural Warrior


Kathryn pastes in a Texas newspaper blurb to the effect that John Roberts is a ray of hope for religious conservatives. The assertion is that Roberts has succeeded within elite institutions with “conservative religious, moral and political values intact.” Indeed he has, at least as far as I can tell. The writer notes, further, that this sort of person “could help bridge the red-state/blue-state cultural divide.” There is reason to wonder. Do the elites who speak for the blue states really want a bridge connected to red-state folks? I mean, then those eerie “values” voters could come on over as they please. NASCAR nuts moving onto our cul de sac? Don’t think that is what Chuck Schumer or People for the American Way are looking for.

More important are questions arising from the apparent separation of Roberts’ moral and religious values from his professional pursuits. Of course I refer to a particular and limited aspect of his modus operandi. Roberts is by all accounts as decent and generous a man as you will ever meet. No doubt these (and other) admirable character traits owe to his religious and moral convictions. But Roberts himself (now famously) has said often that his personal views about matters such as abortion do not affect his professional judgment or even (as far as he could see) his views about applying Roe v. Wade. There is abundant evidence these comments are indebted to a wider view of law which swings free of his beliefs about controversial moral matters. Roberts has been almost impossibly cautious in speaking his mind about burning issues, even in social settings where most people inside the Beltway won’t shut up. He has been a very, very reluctant culture warrior, if there is any sense of thinking of him in those terms at all.

My point is not to criticize John Roberts. My point is that very different ways of thinking and acting in the culture war are just as defensible as are his reticence and his brand of positivism. (Truth be told, I think his positivism is mistaken. As to his reticence, well, let’s say that it does not come naturally to me, and leave it at that.) My point, in other words, is that we should go lightly on the notion that Roberts is somehow a model or norm for our time. Lastly, I do not see how Roberts could be moral conservatives’ bridge over troubled cultural waters. He may surprise us when he gets to the Court, and I hope he does. But to date he seems to me, at least, to be a man who has privatized his morals and religion too much for that.

Why Did the White House Release Any Documents?


Charlie Schumer is giving the White House no credit for releasing any documents because they haven’t released them all. So what was the point of releasing any? As the day goes by my “benefit of the doubt” reflex toward the White House is becoming weaker and weaker. By the evening news, will the White House even get credit for releasing anything? By the weekend shows will anyone even remember? And those who remember will say, and understandably, If you released some, what can possibly be the justification for not all?

Democrats and Documents


The Democrats are acting like they think they will never be in charge of the Executive Branch again.

It’s ironic, for example, that Sen. John Kerry–who fought tooth and nail the public’s right to see his third-rate academic performance in college and his military records–would irresponsibly demand documents subject to the highest privilege the law allows and disclosure of which both Democratic and Republican solicitors general have said would greatly undermine the operations of the office.

These solicitors general know it is important for the Executive Branch to keep certain deliberations private, when they involve national security or other sensitive issues, and to ensure that the president–whatever his party–gets honest and candid legal advice so he can act on behalf of the American people based on the best legal advice.

I wonder if the senators demanding privileged documents will be willing, in their next election campaign, to turn over all of the memos they have received giving them legal and policy advice. After all, those documents would be just as much the property of the taxpayers as privileged legal documents from the solicitor general’s office.

Senator Schumer


at the National Press Club right now (it’s on C-SPAN 3) sounds like he has already decided he’s not going to like Roberts’s answers to Dem questions.

He promises the hearings will drag on: “It’s going to take a long time.” “To set a deadline…that would not allow us to do our job.” (September 29th being the talked-about deadline–not exactly unreasonable–hasn’t Schumer already realeased.)

He’s obsessing about a deadline–you’d think “no deadlines” for hearings votes can ever be agreed on were in the Constitution. Maybe in a living Constitution that is. I’ll have to consult the Supreme Court.

Miranda, Roberts, and the Federalist Society


I am sure I am not the only one who is exasperated and amused by various senators’ and journalists’ breathless and utterly uninformed assumptions about the Federalist Society, and by the raised eyebrows in certain circles about the possibility that Judge Roberts might sympathize, or have once been affilated, with that shadowy cabal of extremists. It is all so tedious. In any sane, honest world, the activities of the Federalist Society and the views of its members would be recognized for what they are–perfectly respectable, defensible, and–yes–conservative. I’m inclined to agree, then, with Manuel Miranda’s argument in today’s OpinionJournal that neither the administration nor Judge Roberts’s (many, many) supporters should be at all defensive about the Federalist Society. (That said, if Judge Roberts has never been a member, there’s no reason not to point that out.)

Speaking as a relatively recent law-school graduate, and as a law teacher, I think it needs to be emphasized, far and wide, how valuable and educational the work of the Federalist Society is. In my experience, the Federalist Society and its events are some of the (unfortunately) rare contexts where lawyers and law students are exposed to genuine debate, and presented fairly with mainstream conservative and constitutionalist thinking. In fact, as every informed observer knows, there is no cabal, there is no handshake, and there is no secret: The Federalist Society exists to improve and enrich students’ educations and lawyers’ conversations. The Society should be praised in the press, and not subjected to DaVinci Code-style treatment.

Here, by the way, is a must-read op-ed by Eugene Volokh, written a few years ago in the context of Viet Dinh’s nomination to serve as assistant attorney general.

Leahy’s Litmus Test


Leahy says he won’t vote for Roberts without support for Roe

The Associated Press

MONTPELIER, Vt.–Sen. Patrick Leahy said on a radio call-in show that he would not vote to confirm John Roberts for a seat on the U.S. Supreme Court if the appeals court judge does not proclaim his support for the landmark Roe vs. Wade abortion ruling.

Leahy said on Vermont Public Radio’s “Switchboard” program that he wanted Roberts to answer questions about previous Supreme Court decisions when the judge appears before the Senate Judiciary Committee for confirmation hearings.

Leahy is the ranking Democrat on that committee.

“Just as you would not have a justice nominee who said, `Well I wouldn’t consider Brown vs. Board of Education settled law,’ I don’t see how they could get confirmed. I don’t see how somebody who said that they didn’t consider Roe vs. Wade settled law … I don’t see how they get confirmed,” Leahy said.

The Vermont Democrat discussed several aspects of the Roberts’ nomination during the call-in show Tuesday.

Leahy said he would vote against Roberts if the senator believes the judge would pursue an “activist” judicial philosophy on the court.

“They have struck down parts of the violence against women act, environmental acts, child safety legislation,” Leahy said. “They’ve knocked down all these, basically writing the law themselves. I want to find out if he’s going to be as active as this _ as people like Justice (Antonin) Scalia and Justice (Clarence) Thomas have who have almost willy-nilly overruled things.”

The White House says it wants the full U.S. Senate to vote on the Roberts nomination before the new Supreme Court term starts at the beginning of October. Leahy said it would be a mistake to shorten the confirmation hearings in order to meet that timetable.

Not Many Were Interviewed


Based on news reports today about John Roberts’s papers, I’m more impressed with him. Of course, Ted Kennedy won’t be happy, which makes me happy. But I am told, and disappointed to learn, that the president actually did not interview Mike Luttig, Edith Jones, Janice Rogers Brown, or Alice Batchelder, among other leading originalist judges, when considering a nominee. I wonder what this portends for future appointments to the Court, and I’m not sure it’s good.

Dellinger on Disclosing SG Office Documents--Then and Now


Walter Dellinger, who headed the Office of Legal Counsel and served as acting head of the Office of the Solicitor General in the Clinton administration, is a very bright man. As more fully discussed here, Dellinger was one of the seven former heads of the SG’s Office–four Democrats and three Republicans–who in 2002 sent a letter to Senator Leahy protesting Leahy’s demand for SG Office documents relating to Miguel Estrada, whose nomination to the D.C. Circuit was then pending. In that letter, Dellinger and company “attest[ed] to the vital importance of candor and confidentiality in the Solicitor General’s decisionmaking process” and pointed out that the “unbridled, open exchange of ideas . . . simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.” The letter further stated that “[a]ny attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests.”

Dellinger, it turns out, now has a very different position on SG Office documents relating to John Roberts. In Dellinger’s words (from his op-ed Washington Post):

“Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn’t any federal judgeship but the Supreme Court itself. These factors and the announced release of volumes of earlier memos to the White House counsel–undistinguishable as a matter of law from memos to the solicitor general–suggest that the memos to the latter will be made public as well.
Are Dellinger’s factors persuasive? I don’t think so.

First, the fact that Roberts was a “senior political appointee in a policymaking position” makes the public’s interest in not chilling the candor of communications relating to governmental decisionmaking stronger, not weaker, than in Estrada’s case. Confidentiality is not, as Dellinger’s op-ed would seem to suggest, some sort of civil-service protection for government employees. It is instead designed to protect the decisionmaking process. As Dellinger’s 2002 letter correctly states, “High-level decisionmaking requires candor, and candor in turn requires confidentiality.”

Second, apart from the fact that I’ve never before heard anyone call a judgeship on the D.C. Circuit just “any federal judgeship,” I don’t see the relevance of the fact that Roberts’s nomination is to the Supreme Court. Virtually every lawyer in the SG’s Office, I suspect, has imagined himself a future judge or Supreme Court justice, but no one of course knows what the future holds at the time he’s working in that office. You sacrifice the long-term interest in ensuring an environment that promotes candor if you’re willing to disclose records on someone who later becomes a Supreme Court nominee. Besides, there are ample alternative means–interviewing career deputies and attorneys who worked with Roberts–for satisfying any legitimate interest in determining Roberts’s fitness.

Dellinger is a wordsmith, and his second sentence quoted above is, strictly speaking, a prediction that the SG documents “will be made public” rather than an argument that they should be. His prediction may well prove to be right–for the sake of the interests cited in his 2002 letter, I hope not–but his grounds for distinguishing Roberts’s records from Estrada’s aren’t convincing.

Judge Roberts: More Common Sense


Maggie Gallagher has written an outstanding short piece on Judge Roberts’s dissent last Friday from the D.C. Circuit’s ruling that police violated a criminal’s Fourth Amendment rights when they searched the trunk of a car driven by an unlicensed driver, with no registration and stolen tags, and found a gun. Was it “unreasonable” under the Constitution for police to search the trunk? As Maggie quotes Judge Roberts’ dissent: “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 . . . .”


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