Bench Memos

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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 . . . .”

Questions for Roberts


Both Walter Dellinger, in today’s Washington Post, and Vikram David Amar, in today’s New York Times, argue essentially as I have done here at Bench Memos (and as Ramesh Ponnuru argues in the latest NR), that Judge Roberts can properly be asked all sorts of questions about his views of past cases, even if the same issues might predictably come before the Court again. Dellinger and Amar may have ulterior motives, thinking that Roberts can be defeated if his views seem (from where they sit) “extremist.” But their arguments are worth reading, and I’ll place my bet that a forthright and cogent constitutionalist can get through the process, even with a hostile Arlen Specter in the chair.

Frist Wants August Hearings



He’s a United, Not a Divider!


From the Religion News Service [Texas Star-Telegram sub. required]:

Religious conservatives are always ready to mistrust the elite educational, cultural and political institutions of our nation, and they often draw on that mistrust in seeking to galvanize their own constituency.

Roberts appears to be a person who has managed to come through such institutions, gaining the greatest value possible from them while retaining recognizably conservative religious, moral and political values. This kind of person could help bridge the red-state/blue-state cultural divide and symbolize that it need not be an eternal or immutable division.

A Bit of a Response to Matt Franck


I’m glad that I’ve eased Matt Franck’s mind a bit, but I hasten to offer this correction on a point he raised: My own piece had been written and put to bed before the news had come out that Joy Clement had been called by the White House around 1:30 on that improbable day. But I’m holding Matt to his promise to visit me in jail if the occasion should ever arise—and it won’t do for him to plead that he is busy visiting his other friends in jail.

Apart from that, though, I want to say how touched I was by the tone of Matt’s commentary. He was kind enough to register his respect and friendship before he went on to his criticism, but I want to assure my friends that I don’t take their disagreement with me as marking any want of respect. They needn’t apologize, and they should know that I wouldn’t feel diminished if I can be corrected by friends. I can imagine now the pieces to come: “Well, now that I know that Hadley Arkes will not feel diminished, I can let him have it …” As Betty Davis said, fasten your seat belts, this is going to be a bumpy ride.

Ted Kennedy Doesn’t Like Us


He’s thinks we’re getting super secret information from the White House.

SCOTUS Cannibalism


Go Figure


AP: “As a young Justice Department lawyer, John Roberts helped guide Supreme Court nominee Sandra Day O’Connor through the Senate confirmation process he now confronts as the choice to replace her.”

Durbin vs. Turley


Schedule for Roberts Hearing


In comments to the media today, Chairman Specter made clear his commitment to proceed on a schedule that would enable Judge Roberts to be confirmed by September 29 so that he could take his seat on the Supreme Court for the opening session of oral arguments on October 3. Specter explained that unless Senate Judiciary Committee Democrats waive their right to delay (or “hold over”) post-hearing consideration of Roberts’s nomination for one Committee meeting, he will schedule the confirmation hearing to begin on Monday, August 29. If Democrats agree not to delay his nomination in committee, the hearing will probably begin on Tuesday, September 6 (right after Labor Day).

As I explain here, unless Democrats think that delaying will somehow enable them to defeat Roberts’s nomination, they have nothing to gain from doing so.

I Feel Much Better. . .


. . . now that Hadley Arkes has revised and extended his remarks. Now I know that it is an unwarranted inference from his original article that George W. Bush countenanced a cynical treading upon Edith Clement for political purposes–though it was certainly a plausible inference upon first reading the piece this morning. And he reminds us now, as the Washington Post reported, that the White House was solicitous of Judge Clement’s feelings as early in the day as 1:30–a key fact left out of his first account of the day’s events. Having communicated with the judge, the White House was under no obligation to pat reporters on the head and point them in the right direction. All around, this is a more creditable story now, though I still see no reason not to take the White House’s denial at face value. “The word had emanated from the White House,” with respect to a Clement nomination, Hadley tells us. Ah, what a multitude of mysteries is buried in the mantle of the passive voice! If he has an actual source in the White House to deny the official denial, I promise to come visit Hadley in the pokey when he refuses to tell a grand jury who it is.

Bork on Roberts and the Catholic Question


This afternoon, Fox news anchor Martha McCallum asked Judge Bork if it was fair game for Democrats, as Senator Durbin reportedly did, to question Judge Roberts about how his Catholicism would affect his decisions on the Court. Judge Bork replied:

“I don’t think so. You know, I don’t think any other religion, except Roman Catholic, would be asked those questions. And the question is not about his religion. The question really is, will he interpret the Constitution honestly? That’s the case. I don’t care what his religion is, and they shouldn’t care either.”

Durbin’s Dilemma


I tend to agree with Wendy with regards to Senator Durbin’s question to John Roberts: “What would you do if the law required a ruling that your church considers immoral?” What a strange question. It would not be strange to ask Roberts (or any judicial nominee, for that matter): What would you do if giving judgment in accord with the law would make you complicit in injustice? Possible answers range from: give judgment anyway to lying about what the law requires (the lesser of two evils, perhaps) to recusal to resignation from the bench. Or, a nominee could say: “Sorry Senator, nice try. But I do not imagine that such a conflict would arise in the course of my duties.” Roberts (or any other nominee) might add, too, that he is only responsible for conflicts arising in his conscience, and does know what else the senator could be asking about.

What could be the issue if instead the nominee’s “church” considers some judicial act to be immoral? None, save perhaps awkward appearances–unless the nominee also holds the “church’s” view. In which case, we are back to the not-so-strange question sketched above.

Of course Senator Durbin may have been stalking other game. Perhaps he wonders whether Roberts actually believes what the Catholic Church holds to be true about, say, abortion or same-sex marriage. (Durbin may know some Catholic politicians who do not.) But does the senator really want to go there?

Flattery Will Get You Nowhere


In response to my elementary demonstration that the Scalia position on abortion is (if one is going to use political labels) the genuinely moderate one, “Armando” of Daily Kos–the loony Left’s favorite website–calls my argument “as asinine an argument as I have ever run across” and says it “demonstrates a misunderstanding of Constitutional principles of epic proportions.” Sadly, Armando provides nothing in the way of argument to support this grand distinction he would bestow on me.

Armando exclaims: “No kidding. This is news how? Do they [there's no actual referent for this pronoun--funny, isn't it, how often poor grammar and poor thinking go together?--but the context indicates that he's referring to those sharing my view] expect the Constitution to take a specific position on abortion?” (Emphasis added.)

Well, no, I don’t expect the Constitution to take a specific position on abortion–at least certainly not a pro-abortion position–because I think it ludicrous to suggest that the drafters or ratifiers of any provision of the Constitution intended to protect abortion from the ordinary democratic processes. For, surely, if they so intended, it would be entirely reasonable for–indeed, incumbent on–them to specify (or at least signal in some way) such an extraordinary departure from the basic ground rules of American government.

Poor Armando has apparently absorbed the rudiments (“compelling state interest,” “right to privacy”) of modern judge-made constitutional law without understanding anything about the system of government that the Constitution created.

Sunstein’s Silliness


Randy Barnett does a very good job of exposing Cass Sunstein’s silliness. What gets me is how Sunstein’s political objectives are accepted by so many as a judicial philosophy. It’s a debate worth reading, as I have no doubt it will spill over into the confirmation process.

In Response to Matthew Franck


Matt Franck is, as we used to say, as sharp as they come, and I wouldn’t entirely disagree with him, but I’m afraid he has done his Claude Rains act from Casablanca: He professes to be “shocked–shocked” that anyone should think the White House capable of leaving up a decoy to draw off the fire and propel the opposition into the throes of research–directed at the wrong target. I was in a conference call at midday, as a number of conservatives were earnestly seeking out assurances about Joy Clement. One friend, who had been in touch with her, reported that she hadn’t received a call from the White House, and he was sure, he said, that she had become a “decoy.” People at the White House are now denying that she had been put forth deliberately as a decoy. And I share Matt’s view in part: I don’t think that George W. Bush would deliberately and cynically create embarrassment for Joy Clement. (Nor do I think that any of my other friends of the White House would have done that.) She had evidently made a fine impression on the President. But apparently, the word had emanated from the White House earlier in the day, that she was the choice. And nothing was done until late in the day to check the rumor. According to the Post, Joy was not called by the White House until around 1:30 p.m. I offer myself again as a barometer of something: Why was NBC willing to drive me down to the studio, to arrive as late as 6 p.m., for a program beginning at 6;30? Answer: because even that late, the networks, with all their resources, had not found out for sure that Joy was not the nominee. They were left in the dark, until after the evening news. It may be that we had here something like the caper of Luther Billis in South Pacific: He was suddenly out in the water, as a decoy, drawing the fire of the enemy, and he might as well be left there. Even if the White House hadn’t arranged the feint, there was an unwillingness to undo it, for that would allow the President to keep the secret longer and stage the surprise he wanted. It also had the effect of catching the opposition wildly off guard, tripping over their own feet.

Gonzales on Roberts & Roe



If confirmed to the Supreme Court, John Roberts would not be bound by his past statement that the 1973 decision legalizing abortion is settled law, Attorney General Alberto Gonzales said Tuesday.

Roberts testified before Congress in 2003 that he considers the Roe v. Wade decision “settled law.” At the time, he had been nominated for the seat he now holds on the U.S. Court of Appeals for the District of Columbia Circuit.

But Gonzales, in an interview with The Associated Press, said circumstances had changed. “If you’re asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you’re bound by the precedent,” Gonzales said.

“If you’re a Supreme Court justice, that’s a different question because a Supreme Court justice is not obliged to follow precedent if you believe it’s wrong,” Gonzales said.

Are Senate Democrats Anti-Catholic Bigots?


The question has become even more interesting with that scoop by Washington Times reporter Charles Hurt Kathryn
mentioned earlier.

Hurt induced George Washington University law professor Jonathan Turley to divulge his sources for a column in yesterday’s Los Angeles Times, in which Turley reported that liberal Democrat U.S. Sen. Dick Durbin (D., Ill.) had grilled Supreme Court nominee John Roberts privately last week about his Catholic faith and what he would do “if the law required a ruling that his church considers immoral.”

The sources for the Durbin-Roberts exchange, Turley said, were . . . Senator Durbin himself and his press secretary, Joe Shoemaker. But Shoemaker insists that Turley is lying.  He says Durbin asked no such question.

Regardless of how this little spat shakes out, one thing is certain: Liberal pressure groups and Democratic senators, including Durbin, have long sought to impose a litmus test for federal judges, and especially Supreme Court justices.  Men and women of Christian, particularly Catholic, faith need not apply.

Senate minority leader Harry Reid (D., Nev.) needs to clarify publicly where his team is on this issue.

Let’s put aside the fact–and it is a fact–that no one can conjure up even a hypothetical scenario under which the United States Constitution contravenes the teaching of the Catholic Church.  It has not happened yet in our country’s history, and it’s not going to happen in the future.

The main point is:  President Bush and Judge Roberts understand that judges cannot make policy–pro-Catholic, anti-Catholic, or otherwise.  Everything in Judge Roberts’ record tells us that he is committed to the same judicial philosophy as that of President Bush:  to apply the Constitution and laws as written, and not to make laws up or rewrite the Constitution in judicial decisions.  Judges can’t make the laws governing abortion, marriage, or anything else.  All they can do is apply them.  Accordingly, in the view of President Bush and Judge Roberts, a Supreme Court justice’s personal, political, or religious views cannot be used as the basis to decide a case.

If it turns out that Turley is reporting accurately, it will not be the first-time offense for Senator Durbin.  He did the same thing to U.S. Court of Appeals judge William Pryor, a devout Catholic whom Durbin and others tried to block from the federal bench.  The religious inquisition of Judge Roberts, then, is really a smokescreen for the liberal litmus test about issues like abortion and same-sex marriage. Along with Senators Kennedy, Kerry, Schumer, and others, Senator Durbin treats judges like policymakers who wear black robes and are appointed for life.  Like all liberals, they fundamentally misapprehend the role of the judge under our Constitution:  to be a neutral umpire, applying the laws as written by the elected representatives of the people.

Because liberals can’t win popular support for their policy agenda–things like mandating abortion on demand for any reason through all nine months of pregnancy, forcing states to redefine marriage, and erasing God permanently and completely from the public square–they force it on people through the courts.  And they are afraid that Justices who are people of religious faith can’t be pressured into ruling from the bench in favor of their liberal policies.

So when Senator Durbin tries to corner Judge Roberts about some hypothetical “conflict” between Catholicism and the U.S. Constitution, the senator from Illinois is engaging in exactly the kind of religious witch hunt that the Framers of the Constitution sought to prevent in Article VI of the Constitution, which reads:  “no religious Test shall ever be requires as a Qualification to any Office or public Trust under the United States.”  The test is just harder to recognize, because although Durbin himself professes to be a Catholic, what he really objects to is a faithful Catholic–that is, one who, for example, personally accepts Church teaching on abortion.

By almost a five-to-one margin, American voters disagree that pro-life views on abortion should prevent a “well-qualified nominee” (such as a sitting judge on what is commonly considered the second highest Court in the land, who was graduated from Harvard College summa cum laude and Harvard Law School magna cum laude, who in private practice was perhaps the leading Supreme Court litigator of his day) from being confirmed to the United States Supreme Court.  This view is held across the political spectrum:  79 percent of voters overall, 81 percent of Republicans, 79 percent of Independents, and 77 percent of Democrats.

The irony of this reported inquisition is almost too much:  Senator Durbin, a self-professed Catholic, questioning the loyalty to the Constitution of a brilliant judge who has demonstrated his faithfulness to the law, even when he personally disagrees with it. 

Judge Roberts is too much of a gentleman to do what is really required with anti-religion bullies like Senator Durbin: Ask the senator what he does when his religious faith conflicts with public policies he advocates.


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