Bench Memos

NRO’s home for judicial news and analysis.

Hopes and Fears


Jonathan Adler hopes that Roberts “sails through with single-digit opposition.” I don’t. Not because I think Jonathan is wrong in his take on E. J. Dionne or on the liberals in the Senate. In fact, I agree with Jonathan about all that.

The reason our hopes differ is this: Given the political realities of the spectacle looming before us, something will have gone way wrong for conservatives if nine or fewer Senators oppose Roberts. I will be very surprised — no, shocked — if Roberts sails through. I do not doubt he will confirmed. It is just that I expect twenty to thirty “no” votes.

But if John Roberts does sail through it will most likely be because the liberals conceded the battle in order to win the war. They will have successfully used Roberts to define conservatism down. They will have made the strategic choice to christen him by their votes as an “acceptable” or “mainstream” or “moderate” conservative, much like they now say O’Connor was. The thing is, they will have also used Roberts to marginalize those “extreme” conservatives — Bork, Scalia, Thomas, and the other nuts enamored of what they (the liberals) call “the Constitution in exile.” That is the constitution about which Cass Sunstein recently spoke, the one that is not safe for families, privacy, racial harmony, or for the arroyo southwestern toad.

RE: Reagan Docs


John Cornyn responds:

’Tens of thousands of documents have already been released—more than any Supreme Court nominee in history’

WASHINGTON—U.S. Sen. John Cornyn (R-Texas), a member of the Senate Judiciary Committee and a former Texas Supreme Court justice, made the following statement Tuesday regarding the National Archives and Records Administration’s announcement of the availability of additional documents:

“The National Archives and Records Administration has said these documents are likely to contain duplicative documents from previously released material, and if anything, their announcement only reinforces the fact that the Archive’s efforts to be thorough in the production of documents are unprecedented. Tens of thousands of documents have already been released—more than any Supreme Court nominee in history. And with each new release of information, it’s growing increasingly difficult for the President’s opponents to complain with a straight face about the need for more information.”


“Reagan Library Discovers Additional Roberts Records”


WASHINGTON, Aug 30 /U.S. Newswire/ – The Ronald Reagan Presidential Library, one of 11 Presidential Libraries that are part of the National Archives and Records Administration, has approximately 55 million pages of materials related to the Reagan Presidency. To date, the Library has opened 51,285 pages of records relating to Judge John G. Roberts.

In processing requests, the Library followed its standard search procedure by searching for Roberts records using his name. During the expedited processing of these records, the Library noticed a code, “CU AT 18,” associated with tracking sheets in the Roberts materials. The Library ran a search on that code, and on Monday, Aug. 29, discovered a large volume of White House Office of Records Management Subject case files that were entered into the system only by the code for John Roberts (instead of his name). Some of these materials will be duplicative of previously opened files.

The Library is now in the process of determining what documents within these case files relate to John Roberts. In order to make this material available as soon as possible, the National Archives has directed additional personnel from Washington, D.C. and other libraries to assist the Reagan Library staff in the expedited review of these records.

Kerr on New Anti-Roberts Ad


GW law professor Orin Kerr dissects the new anti-Roberts ad (mentioned here) on the Volokh Conspiracy. He generally concludes that the ad is likely to create a false impression about Roberts’s views.

The Alliance Speaks


The Alliance for Justice has released a 100-plus page report that, the Alliance claims, raises “serious questions” about Roberts’s fitness to serve on the High Court. Of course, Nan Aron promised to oppose, and urge a filibuster of, Roberts months ago, so we know what conclusion the Alliance will reach. For those interested, the report is here.


Small, Annoying Mistake


Both the PFAW and Alliance for Justice reports on Judge Roberts claim that the vote for rehearing the “hapless toad” case (Rancho Viejo) was 7-2. Maybe so, but neither group knows this. Although only two judges on the court wrote dissents from the decision, this does not mean only two judges voted for rehearing. As the D.C. Circuit handbook explains: “An order granting rehearing en banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish” (emphasis added). In other words, judges can vote for rehearing, but then keep their votes private when the order is released. For all we know the vote was 6-3 or 5-4. I know this is a tiny detail, but the mistake still annoys me every time I see it.

An Important Birthday, Spoiled


One week after Constitution Day, another important date in constitutional history will come around. September 24 is the 250th anniversary of the birth of the great chief justice, John Marshall. At a hotel near Marshall’s Richmond home (which has been kept up wonderfully by the Association for the Preservation of Virginia Antiquities) there will be a gala dinner on the 24th under the auspices of the John Marshall Foundation. Black tie, moderately pricey tickets, almost worth the drive to Richmond, until one sees that the featured speaker, and recipient of the Inaugural Award of the John Marshall Medal in Law, will be . . . Justice Anthony Kennedy. I understand that the organizers of such events strive to be nonpartisan, and eventually they’ll probably get around to every one of the justices. But the inaugural medal to Justice Kennedy? On the quarter-millennium birthday of the greatest jurist in American history? What a letdown. I’ll stay home and save the gasoline.

Scalia on “Moderate” Interpretation of Constitution


The AP reports on comments made by Justice Scalia at Chapman University in California:

Scalia . . . railed against the principle of the “living Constitution,” saying it has led the Senate to try to appoint so-called politically “moderate” judges instead of focusing on professional credentials and ability.

“Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?” he said, to laughter and applause.

Scalia didn’t make any direct references to the looming confirmation battle for Supreme Court nominee John Roberts, but he did allude to it.

“Each year the conflict over judicial appointments has grown more intense,” he said. “One is tempted to shield his eyes from the upcoming spectacle.”

It Was Early-Morning Wishful Thinking


Make sure you’re all rested for the long September.

Re: Dionne


I am not sure the Dionne column is quite so defeatist, Kathryn. Rather, I think Dionne is shrewdly laying the predicate for one of the potential lines of attack, He concludes:

The paradox of the Roberts nomination is this: Roberts seems untouchable because of his shrewd and extensive preparation for this critical moment in his life. He could be derailed only if he proves to be too shrewd, too smooth and too evasive.
Given that we all know that a) the White House will not release documents from the SG’s office, b) Roberts will not answer questions that bear on issues that may come before the Court, and c) he will do so in a “smooth” fashion (as he did at his prior confirmation hearing), Dionne is leaving open the possibility of opposing Roberts on precisely this basis. We saw something similar with Bork. He was attacked for his scholarly writings, yet when he distanced himself from some of the writings, he was accused of a “confirmation conversion.” Given that a frontal attack on Roberts’ views or experience is unviable, they’ll go after him for refusing to disclose and being “too shrewd, too smooth, and too evasive.” Of course, I hope I am wrong, and that Roberts sails through with single-digit opposition–but don’t bet on it.

I Don’t Think E. J. Has a Fight In Him


Clearing it Up


From the AEI website (linked in Jonathan’s post) – “Professor Cass Sunstein argues in his new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, that the best approach is a form of cautious incrementalism. He suggests that judges build on their precedents, but show a reluctance to strike down the decisions of the elected branches.“

Well, that clears it up for me. And lest anyone forget, there’s “The Constitution 2020.” Hopefully George Will will be armed with this information (I have no expectation Jeffrey Rosen will).



A group calling itself ProtectOurCourt.Org, “an online campaign started by grassroots activists who are former staffers to the Wesley Clark for President campaign” and ran StopJohnBolton.Com, has prepared an anti-Roberts ad focused on school prayer. (Link via HB.)

Sunstein at AEI


Speaking of “the Senate Democrats’ favorite legal thinker,” Professor Sunstein will be speaking at the American Enterprise Institute in the midst of the Roberts confirmation debate. On September 13, Sunstein will lecture on the topic, “How Should the Supreme Court Interpret the Constitution?” at a forum sponsored by the AEI-Brookings Joint Center for Regulatory Studies. Based on this summary, it appears the talk will be based on Sunstein’s new book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. After Sunstein’s talk, George Will and Jeff Rosen will comment.

Six Degrees of Guilt by Association


Settle in for a long stay in front of the tube come September 6 — at least if Democratic Senators listen to Cass Sunstein. In that Washington Post piece today, Sunstein outlines the Roberts’ cross-examination we shall probably have to endure. And “endure” is the right word. In fact, it might last until the Christmas recess.

Sunstein’s basic strategy is simple. Roberts, he says, is some kind of conservative. But we do not know which kind. Very well then, Sunstein advises, let’s start at the beginning. Let’s leave no question unasked to see just what kind of conservative John Roberts is.

Some conservatives, Sunstein says, oppose rulings which make medical records private. Judge Roberts: are you in favor of making people’s medical records public? How do you feel about faxblasting the pictures from grandma’s lower GI Series? Not in favor? Ahem. OK, then, let’s move on.

Sunstein says that some conservatives hold that the Court “has no legitimate basis for prohibiting…racial segregation” at the national level. Judge Roberts: was Jim Crow your favorite constitutional character growing up? No? Don’t be evasive now, Judge. Do you have any African-American friends?

Sunstein says that some conservatives oppose Court rulings which recognize one’s right to live with one’s own family. Judge Roberts: do you favor government policies which take kids away from their parents and siblings, and make them live with, say, Keith Richards? Come on, Judge. Be candid. You have always preferred the Stones to the Beatles, haven’t you?

Judge Roberts: some conservatives think that South Park is really funny. Do you? How about the movie “Team America”? Some conservatives cheered so much that they blew lunch when the commandos wiped out Alec Baldwin, Matt Damon and all those other Hollywood pinkos? What was your reaction to that mass execution, Judge Roberts? Be honest. Use additional sheets, if necessary.

Judge Roberts: some conservatives (like Mark Levin on NRO) are now saying that Cass Sunstein has become a joke. Do you agree?

Re: Sunstein


I agree with Mark that there is much that is amusing about Cass Sunstein’s op-ed. I think it’s worth emphasizing, though, that Sunstein expressly states that it was “reasonable” for Roberts to “raise[] questions about the constitutionality of some applications of the Endangered Species Act.” This concession from a leader of the Left should undermine those who have been trying to make the arroyo toad the mascot of their opposition to Roberts. It would also seem to compel the concession that it would be reasonable to raise more general questions about the scope of Congress’s Commerce Clause power.

Re: Roberts & Hamdan


As I have previously discussed, Gillers and his two co-authors fail to deal adequately with the many obvious difficulties in their position that Judge Roberts should have recused himself from the Hamdan case. Indeed, they do not even address the possibility that elevation of a judge within the federal judicial system might be materially different from a judge’s seeking employment outside that system. I will not repeat my previous observations here but would like to highlight two additional problems with the Gillers position:

1. If, as Gillers maintains, the realistic prospect of elevation should have required Roberts to recuse himself from cases of importance to the administration, why wouldn’t the fact of elevation likewise require ongoing recusal? In other words, why wouldn’t the Gillers position require that Roberts, once confirmed and appointed to the Supreme Court, sit out all cases of importance to the president, to whom he would presumably be indebted for his appointment?

To illustrate the point: Let’s assume that a federal judge was negotiating a book contract with a publisher. It would seem uncontroversial that the judge would recuse himself from any case involving the publisher during the negotiations. But let’s move forward in time and assume that the negotiations resulted in a contract. Obviously the judge’s recusal obligation would extend to the period covered by the contract and presumably for at least a reasonable time after. In other words, where the prospect of a benefit requires recusal, the actual conferral of that benefit does as well.

The logical corollary to the Gillers position–that Roberts would have to recuse himself as a justice from cases of importance to this administration–is belied by 200-plus years of American history. Does Gillers maintain that this unbroken practice is wrong? If not, it would appear to follow as a matter of logic that his underlying position must be wrong.

2. If, as Gillers maintains, the fact of an interview required Roberts’s recusal in Hamdan, is it Gillers’s position that all the other federal judges who interviewed for the Supreme Court are also required to recuse themselves from cases of importance to the administration? Presumably these judges remain on the short list for the next vacancy. It is of course true that no additional resignations have been announced. But O’Connor had not announced her resignation at the time Roberts was interviewed, so that point does not distinguish Roberts’s situation in Hamdan from that of the other judges who interviewed.

Roberts & Hamdan


If Roberts should have recused himself in the Hamdan case once he was asked to interview with the White House as a possible nominee to the Supreme Court, why is being asked to be interviewed the focus? It seems to me, as the logic goes, if you know that you’re being looked at as a possible nominee, even without having been asked to be interviewed, you’d have to recuse yourself — which means that all judges on the potential nomination list would be recusing themselves. And from what are these judges to recuse themselves? All cases involving the Executive Branch, since the president IS the Executive Branch? And if this is the standard, why has it only now been discovered? Seven of nine of the current justices were former federal appellate judges, and to the best of my knowledge, none of them recused themselves from any cases because of some perceived conflict of interest when they were under consideration.



Want another laugh? Read Cass Sunstein’s op-ed in today’s Washington Post.

The professor is a moving target. He argues for precedent when he agrees with the Court’s results, he argues for a living and breathing Constitution when he believes the Court is mired in the Constitution’s text, he argues for judicial restraint when the Court strikes down congressional laws he likes, and he repeatedly mischaracterizes originalist jurisprudence. I guess this explains why he’s the Senate Democrats’ favorite legal thinker. (He also used the title of one of the chapters of my book for the title of his book. But, then again, my publisher insisted on a title for my book that was used in a movie about aliens.)

Rotunda on Recusal


Law professor Ronald Rotunda, a noted expert on legal ethics and constitutional law, disagrees with those legal academics who argue Judge Roberts should have recused himself in the Hamdan case once he was asked to interview with White House officials about a potential Supreme Court opening. His letter to Judiciary Committee Chairman Arlen Specter–apparently written in response to a request from Specter (contrary to this insinuation)–is available here. I am not an expert on such matters myself, but it seems to me Rotunda makes a strong case.

As one might expect, the folks at the Center for American Progress have a different view of the Rotunda letter, and are all exercised about Rotunda’s former employment with the Department of Defense. Yet what’s interesting about the various posts on this issue at Think Progress, particularly those by Judd Legum, is their complete lack of substance. Legum does his best to impugn Rotunda’s motives, but never addresses the substance of his remarks. In my mind, this simply reinforces the strength of Rotunda’s arguments.


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