Bench Memos

NRO’s home for judicial news and analysis.

Not a Religious Test


If Bill Clinton had nominated the Rev. Robert Drinan, S.J., to the Supreme Court there would have been less concern about his Catholicism than there has been expressed about Roberts’. This would hold true even if Drinan spent most of his confirmation hearings talking about such Catholic themes as “preferential option for the poor” and the “just war” tradition. The reason is that Drinan is not plausibly a candidate to overturn Roe. We would probably hear just as much church-state saber rattling about Roberts, too, if he were an evangelical Protestant, say, a member of some notably “conservative” northern Virginia mega-church. For that matter, if Catholic Roberts would simply say, now, that he will not overturn Roe, the liberal guns would fall silent. No more “religious” test.

Funny how civil libertarians just love to inject religion into politics.

Dog Daze


From today:

From the moment the John Roberts nomination was announced, the media called it a done deal. NPR and The New York Times gushed over his humility, humor and congeniality. With Roberts’sbelief system barely mentioned, you’d think Bush had just nominated Mister Rogers.

In the wake of this media love fest, I keep encountering people who oppose everything Roberts has stood for , but see no use in trying to stop what seems his inevitable confirmation. But we can make a powerful impact by raising the discomforting truth that Roberts may be closer to a smiling Antonin Scalia. However the senators vote—and none of this is foreordained—the issues we debate and principles we raise will echo down the line for future nominations and policies.

Roberts is being hailed as the brilliant Harvard lawyer who gets along with everyone. He’s conservative, but reasonable. He doesn’t froth at the mouth. He barely barks. Unlike Bush’s three most recent Appeals Court appointees, he hasn’t led a right-wing ideological charge. He’s being praised as a nomination Bush should be proud of.

We need to tell a different story—and do our best to get into the media—the arguments raised by our elected representatives, and the awareness of our fellow citizens…

It’s tempting to decide that Roberts is the best we can get, so we should simply accept him, lest we get someone worse. But that traps us in a continuous cycle of lowered expectations, until we accept anyone short of Attila the Hun. I’m not expecting Bush to nominate the next Thurgood Marshall. Even Sandra O’Connor, who everyone now praises, helped put Bush in office to begin with in a decision blasted by legal scholars for its contempt for constitutional precedents, including claims of the participating justices to support states rights. Given the Republicans’ current power, another O’Connor may be the most we can expect, but we have no obligation to accept a candidate as problematic as Roberts.


Rehnquist Is Retiring?


About Questions


From US News:

A just completed poll conducted by the Winston Group, a Republican firm, finds vast support for Supreme Court nominee John G. Roberts ducking comment on social issues that might be taken up by the court. The poll question referenced a similar move by Clinton appointee Ruth Bader Ginsburg, who refused to answer out of concern that she didn’t want to prejudge issues that might later come before her. The poll of 1,000 registered voters taken July 23-24 found that 76 percent would find a similar refusal acceptable from Roberts. Twenty percent found it unacceptable.

School Days



Dems Being Reasonable?


Chris Dodd confesses re: Roberts (on Fox News Sunday): “he’s probably a pretty good choice.”

Ooohh. Aaahhh.


On Being Reasonable


Gloria Borger:

Here’s the question: What’s the difference between the nomination of Ruth Bader Ginsburg by President Bill Clinton and the nomination of Judge Roberts by President Bush? Answer: nothing. Ginsburg appeared as liberal as Roberts does conservative, yet she was approved 96 to 3. The GOP decided it would not be a party of useless litmus tests or panderers to special interests. And in the next election, Republicans made it clear she would not have been their choice. That is, after all, what elections are about.

Philosophical Moment


We’ve discussed at length what should or should not be asked John Roberts, and how he should or should not answer. What bothers me about this nomination is that conservative senators and commentators (not here) are blowing a great opportunity to engage the Left on judicial philosophy. We should engage on the commerce, religion and takings clauses. We should engage on so-called privacy rights and abortion. We should challenge the Left’s equal protection jurisprudence (including, in my view, the inevitable decision on same-sex marriage) and Congress’s legitimate power to reduce (or expand) judicial jurisdiction. Instead, conservative senators and commentators are surrendering the field with defensive and bureaucratic arguments. We should debate the proper role of the Court, not side-step it. The Court is too powerful and the justices are out of control. From partial birth abortion and eminent domain to foreign law and due process rights for unalwful enemy combatants, the public stands with us.

Where’s My Revised Edition?


On Fox News Sunday this morning, Sen. Chris Dodd (D., Conn.) referred to “the privacy clause” of the Constitution. I can’t find that in my copy. Is there a new one I haven’t gotten in the mail yet? I thought I was a subscriber . . .

Left Behind


An astute observer offers this prediction on this weekend’s attacks from the Left on Judge Roberts:

The Left’s strategy for attacking Judge Roberts should come into clearer focus as left-wing elites gather for an American Constitution Society for Law and Policy meeting in Washington this weekend. Prediction: the attack will be two pronged, at least initially. The first prong will be a character assault, led by former Democrat VP candidate John Edwards. Edwards will suggest that the public hasn’t seen “the real John Roberts.” Edwards — of “Two Americas” fame — seems to believe there’s always two of everything, and will lay the groundwork for a broader future assault on Roberts’ integrity and consistency.

The second prong of the attack will be an assault on Roberts’ commitment to civil rights. Look for the NAACP Legal Defense Fund’s Elaine Jones to lead the charge on this issue. You may recall that Jones was the lawyer who tried to fix the outcome of a federal affirmative action case, by delaying the appointment of a conservative judge to the 6th Circuit. Jones will focus in on Roberts’ memos during the Reagan era on a range of civil rights issues. This is, of course, an attempt to relitigate the Reagan legacy — a legacy that the American public overwhelmingly supports.

My cynical view is that Jones and others know the attack on Roberts’ commitment to equal rights will go nowhere, but will launch anyway in the hopes of energizing their political base for the 2006 elections.

Response to Andy


Let me suggest that an impartial judge is also rooted in the Constitution, common law and tradition. It is every bit as important as proper legal representation. I just don’t find the distinction you suggest to actually exist. And, yes, I am not arguing in the abstract, but dealing with reality — the reality of this nomination at this time.

Mark’s Questions


Mark is surely correct that the Senate ultimately decides whether the nominee’s answers are satisfactory or not. He is also right that the nominee will ultimately decide what to answer, and how. I would not suggest questions, however, if I did not think it was appropriate for the nominee to answer them – and that the nominee should answer them. That Roberts probably won’t answer the questions seems to me to be beside the point. I was addressing what I think should happen, not predicting what will happen. If Roberts doesn’t answer the questions and gets confirmed anyway, it will be because there is enough sentiment in the senate that a nominee needn’t answer such questions to win confirmation. I am taking issue with the merits of that sentiment. I am not doubting that the sentiment exists.

I think we just disagree about the attorney-client privilege being no more or less important than judicial ethics rules. The attorney-client privilege, while codified in many codes, would exist even if there were no codes. It is rooted in the constitution, common law and tradition. It would be a proper basis for any attorney or client to decline to answer a question about their covered communications in any hearing congress was empowered to hold, and I don’t see why nominees for the bench should be any different. Moreover, even without attorney-client privilege, Roberts’ communications with executive branch members would probably be covered by executive privilege. (I suspect we agree, for example, that the administration could have and should have withheld the Roberts memoranda that have been disclosed to the senate so far – and despite which there will still be demands for more disclosure.) That is, there would be an independent separation-of-powers basis not to answer such questions – and, indeed, to discourage asking them.

What I am talking about here are rules of lesser pedigree which one commonly finds in codes of conduct. The ABA, for example, could promulgate a rule tomorrow that said: “A lawyer shall not question an unrepresented person under any circumstances,” and that rule could be adopted wholesale into various state codes of conduct. Does anybody really think such a rule could properly bar a prosecutor (or an FBI agent who happened to be a lawyer as many are) from questioning an arrestee after administering Miranda warnings? A judicial code could just as easily provide that “under no circumstances will a judge discuss legal issues outside the confines of litigation over which he is presiding.” The profession is certainly entitled to adopt stupid rules, and maybe one such as that would make it improper for judges to write law review articles or give speeches. But it would not (or at least should not) be the slightest hindrance on the senate – or, for that matter, on a president and his staff in conducting interviews to decide whom to nominate. To take any other position would improperly cede constitutional authority to private rule making bodies.

This doesn’t mean codes of conduct are unimportant. I agree with you that they are very important. A prosecutor has no general warrant to ignore the professional rules. They must be followed to the extent they do not conflict with his higher duty as an official of the executive branch. Such conflicts are rare, but when they happen there should be no doubt about which is the weightier responsibility. So, yes, the Code of Conduct is, as you argue, “help[ful] in drawing lines.” It just is not controlling for all purposes – and where it would actually frustrate a higher duty, it should be ignored.

Constitutional functions are what should control here – the usual interplay of competing branches both respecting each other and protecting their individual turf. As I said, I don’t have a problem with the concept that a nominee should not render an opinion about a pending case, and a nominee should not make – and I don’t think can make – binding promises to rule a particular way on a given fact pattern that might come up. Those things are necessary to the integrity of the judiciary. Senators should respect that and not ask such questions. If they do ask, nominees should decline to answer. But opining, if asked, that, say, Miranda is poorly reasoned would not obligate a nominee to rule a certain way in a future case in which the voluntariness of a confession was at issue. Meanwhile, it’s a legitimate question because an answer tells us, in concrete terms, what the nominee thinks about judicial legislating of the kind typified by Miranda. Now, I fully agree with your apt contention that there are other ways to get at the same information. I just don’t find anything offensive about the direct approach.

The Process


I think we all agree the Supreme Court is out of control. If we are serious about doing something about it, the nomination process is only a small part of it. I’d like to hear any systemic changes some might suggest. I put a few in my book. And obviously no suggestion can be easily implemented.

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.


Sign up for free NRO e-mails today:

Subscribe to National Review