Bench Memos

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You Don’t Say


John Roberts and Joseph Story


Over in The Corner, Ramesh Ponnuru has quoted a sentence he considers mildly alarming from Judge Roberts’ 2003 confirmation testimony: “I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy” of judging. I actually don’t find this particularly alarming, because I take it to be a knock against “theory” or “theorizing.” There are two ways to eschew “theories of judging.” One is the way chosen by Sandra Day O’Connor, sometimes flatteringly called pragmatism, otherwise known as incoherence. The other way is to devote oneself utterly to discerning what theory the Constitution has of itself. As Joseph Story wisely wrote in his Commentaries in 1833, while simultaneously serving on the Supreme Court and teaching at Roberts’ alma mater:

“Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. The are instruments of a practical nature . . . Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the constitution a word used in some sense, which falls in with their favorite theory of interpreting it, have made that the standard, by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning, when it seemed too large for their purposes, and extending it, when it seemed too short.”

If Roberts approaches the Constitution in the “anti-theoretical” spirit of Story–which was decidedly not that of O’Connor–that will be good enough for me.




“I don’t think the American people are going to put up with any more crap from the Judiciary Committee.”

–Senator Hatch, last night, on Dem oppposition to Judge Roberts

Greenhouse Gas Cloud


I see Linda Greenhouse’s front-page NYT “analysis” piece from yesterday a little differently from the way Ramesh Ponnuru and Stanley Kurtz see it. Yes, it’s an unconscionably opinionated piece for the news pages, even under the rubric of “analysis,” as Ramesh notes. And yes, it may have a “this is the best we can hope for from Bush” air about it, as Stanley says. But the real import of the article is that it is the opening salvo in a campaign of seduction. Perhaps Linda Greenhouse has begun to believe her own press–more precisely, what is said about her on the right–and thinks that all she has to do is flirt with John Roberts about all the nice things she might one day say about him in the New York Times, and maybe he will “grow” in office the way some other justices have done. This is the fabled “Greenhouse effect,” and this is Linda’ opening bid to work its magic once again:

“Don’t be like those icky sticks-in-the-mud, those angry little men Scalia and Thomas, Johnny. Be a real man, a big man, a man not afraid to be a little like a woman, a little like Sandra Day O’Connor. If you truly love the Court as an institution, John, as you suggested you did last night, prove it, big fella. If you love the Court, you can change for it, move where it’s moving, not fight the Zeitgeist. You are getting very sleepy . . .”

John Roberts strikes me as a wide-awake fellow with his feet planted on terra firma. I believe he can hold his breath whenever the Greenhouse Gas Cloud comes his way.

Feeble, Laughable PFAW—Part III


Another of the grand total of five judicial opinions of Judge Roberts that PFAW attacks is his ruling in Taucher v. Brown-Hruska that denied an award of attorney’s fees to plaintiffs in a case brought against the Commodity Futures Trading Commission. You’ll have to try really hard to stay awake as I describe the severe threat to American liberties that PFAW pretends to see in this case.

In order to combat fraudulent practices affecting the commodity futures market, Congress enacted the Commodity Exchange Act. That Act makes it unlawful for any commodity trading adviser to use any means of interstate commerce in connection with its business unless it first registers under the Act. Certain publishers who were commodity trading advisers challenged the registration requirement as violative of the First Amendment. Reasoning from a 1945 concurring opinion by Justice Jackson and a 1985 concurring opinion by Justice White, the district court determined that the registration requirement was a regulation of the publishers’ speech rather than a regulation of professional practice and that it was an unconstitutional prior restraint.

After the CFTC abandoned its appeal, the plaintiff publishers sought to recover attorney’s fees under a statute that awards attorney’s fees to a party prevailing against the government unless the government’s losing legal position is “substantially justified.” A magistrate determined that it was “so self-evident and obvious” that the registration requirement was not regulation of professional practice that the CFTC’s position was not “substantially justified.” It therefore awarded attorney’s fees.

Judge Roberts’s majority opinion rejected the magistrate’s determination that the CFTC’s position was not “substantially justified.” Judge Roberts noted, among other things, that the district court’s merits ruling had relied on two concurring opinions (as opposed to established Supreme Court precedent) and that the discussions in those very opinions belied the magistrate’s assertion that the issue was “self-evident and obvious.” Judge Edwards, in dissent, believed that the abuse-of-discretion standard applicable to review of the fee award required that the majority defer to the magistrate’s determination.

From this highly factbound dispute over the proper application of the abuse-of-discretion standard, PFAW would evidently have us believe that Judge Roberts’s ruling somehow undermines a fee award statute that “is important in opening access to the courts to persons who might otherwise not be able to challenge unlawful or unconstitutional government action.” Americans may sleep safely tonight knowing that PFAW’s contention is hogwash.


Flashback: The Left that Cried Wolf


Point of Law on Roberts


Ted Frank and Walter Olson comment on John Roberts and business litigation here and here.

More Silly Women Nonsense



Salazar letter states missed opportunity to, “…create an America that includes women at all levels of our nation’s government.”

WASHINGTON, D.C. – United States Senator Ken Salazar released the following letter expressing disappointment in the President’s decision not to nominate a woman to the Supeme Court to fill retiring Justice Sandra Day O’Connor.

Senator Salazar also sent the letter to Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT). The letter Senator Salazar sent is included below.

July 20, 2005

Dear President Bush:

I do not know yet how I will vote on the confirmation of Judge John G. Roberts Jr. I will honor the processes of the Senate in considering his nomination. The fact you have not selected a distinguished woman in the mold of Justice Sandra Day O’Connor is not a reason for disqualification. However, I want to express my disappointment that you have missed an opportunity to help create an America that includes women at all levels of our nation’s government.

If your nominee to the United States Supreme Court is confirmed, the face of the United States Supreme Court, with nine justices, will have only one woman. And in an America that has struggled over her history to include women, I do not believe this is a healthy portrayal of the kind of America we should be building.

Twenty-four years ago, President Ronald Reagan appointed Sandra Day O’Connor as the first woman justice of the United States Supreme Court. She served in that role with distinction. Justice O’Connor’s appointment created a milestone in history that was the culmination of the work and struggles of men and women over centuries to ensure that women received fair and equal treatment in America. As we all well know, women were not granted even the right to vote in America until the ratification of the 19th Amendment in 1920.

You and I both have two daughters. The profound message we should be giving to them is that their gender creates no limitations for them to live up to their God-given potential. Yet, I fear that with the loss of Justice Sandra Day O’Connor from the United States Supreme Court, we are sending the opposite message.


Ken Salazar
U.S. Senator

cc: Sen. Arlen Specter
Sen. Patrick Leahy

Roberts’s Donations


The Washington Post reports on a non-scandal here.

The Solicitor General of Texas


weighs in on the John Roberts choice.

“Were There No Qualified Women?”??!?!!!


A reporter just asked at the White House press briefing. This will drive people nuts for months, if not years. I love it.

Your John Kerry Update



This much is clear already. Judge Roberts is no Sandra Day O’Connor.

Last night we learned that President Bush wants to replace a woman who voted to uphold Roe v. Wade with a man who argued against Roe v. Wade, and that sends a clear signal that this White House remains bent on opening old wounds and dividing America.

There are big questions that must be answered involving Judge Roberts’ judicial philosophy as demonstrated over his short time on the appellate court. The Senate must learn whether he has a clear, consistent commitment to upholding Constitutional standards like civil rights, the right to privacy, and Roe v. Wade. These issues are in serious question if you take even a cursory glance at his record.

We need to ask the tough questions to determine whether John Roberts is the nominee who will give America a Court that is fair, independent, ethical and committed to Constitutional freedoms rather than an ideological agenda, and I promise you I will do everything in my power to assure that no question is sidestepped.

Throughout every step of the confirmation process, I will keep you informed about the questions that need to be asked, the answers we need to demand, and the principles we need to defend. It’s impossible to overstate the importance of this moment.

As the U.S. Senate discharges one of its most important responsibilities, I will be active and vigilant. I hope you will do the same, beginning right now. Start by sharing a few words about your personal feelings on the importance of this Supreme Court nomination.

You can submit your comments or questions here:

Thank you,

John Kerry

P.S. In the days ahead, we’ll be featuring on our website a cross-section of the comments submitted and contacting you with important information and action requests as events demand. Sign up here if you want to get the latest information. Recruit your friends and neighbors, too.

The American Prospect Goes After Roberts


According to this article, he’s a threat to the Constitution.

Hewitt Transcript


The transcript of my interview with Hugh Hewitt (joined by Instapundit’s Glenn Reynolds) is here.

Feeble, Laughable PFAW—Part II


Responding to the lies that the Left will sling at John Roberts would be a full-time job for an army of lawyers. Here’s my account of the first judicial opinion (out of a grand total of five) that I’ve looked at in PFAW’s hit job:

PFAW attacks Judge Roberts for his unanimous opinion in Hedgepeth. D.C. had in place a policy that provided that minors who committed offenses in Metrorail stations be taken into custody. D.C. did not have a similar policy for adults. D.C. police applied the policy to a 12-year-old girl who ate a french fry in a Metro station. In a straightforward application of Supreme Court precedent, the district court, which described the policy as “foolish,” ruled that it did not violate the Constitution, and all three appellate judges agreed. (D.C., incidentally, had changed the policy even before the case was filed.)

Judge Roberts’s opinion in this case clearly illustrates that he understands the role of a judge. PFAW’s highly selective quotations fail to include the following:

“The question before us … is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution.”

“The district court had and we too may have thoughts on the wisdom of this policy choice—it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears—but it is not our place to second-guess such legislative judgments.”

PFAW gives the reader the mistaken impression that Roberts states that the police merely made the child cry. But as Roberts states in the opening paragraph (and elaborates elsewhere), the child “was booked fingerprinted, and detained until released to her mother some three hours later—all for eating a French fry in a Metrorail station. The child was frightened, embarrassed, and crying through the ordeal.”

Thus, PFAW’s charge that “Roberts appeared dismissive of the serious concerns” raised by the case is simply ridiculous.

Say What?


K-Lo reports that Ted Kennedy described — on the Senate floor this very morning — America’s “mainstream” as “conservative”? He invites us to think that he would support Roberts if he is in it. This is the same Senator Kennedy who infamously opposed Bob Bork because he — Bork — was “out of the mainstream” Does that mean Teddy will oppose Roberts if he turns out to be a liberal?

Ann Coulter, on the other hand, says she is against John Roberts. Not really a conservative, she says.

Beam me up, Scotty.

Re: Re: Bum Rap


Following up on Andy’s post, I would only suggested that I am not sure that the arguments a lawyer makes are always “highly relevant,” but rather, I think that there is something of a sliding-scale of relevance. Thus, if an attorney works for a public-interest group, where they take the case to promote a particular agenda—as was the case with Justice Ginsburg and her work with the ACLU—then I think the arguments made are highly relevant given their ability to control their message and pick their arguments If, however, an attorney makes an argument on behalf of the government (or, a typically hierarchical firm), then I think it is less relevant. In those cases, it is much more likely that they are implementing someone else’s view of the law—one which may be plausible or even correct, but one which may be different from how the particular lawyer sees the law. This is true even for a big partner, who may make an argument that the client wants to see made (so long as it is within the limits of the law), even though he disagrees.

Accordingly, in the Rust case, Roberts almost assuredly was not the person who made the decision to challenge Roe, but rather he implemented the administration’s position. Or to take another example, Miguel Estrada worked in the Clinton Justice Department, and almost assuredly made arguments with which he disagreed, but which were within the limits of the law and effective advocacy of his client’s interest. In either case, I’m not sure how relevant the arguments they made are to how they would approach that issue if it came before them as a judge, and that is what the Left is trying to derive from Roberts’s language from the brief in Rust. There is certainly no disputing that Roe has been attacked from the Left (see, e.g., Kitty McKinnon) and the Right as a poorly reasoned decision, but if someone is going to make that case regarding Roberts’s view of the decision, then I think it should be done on the basis of something more substantial than his advocacy in Rust.

RE: Bench Memos on Network TV


Evidently Jake Tapper focused on Bench Memos quite a bit, even mentioning the url as he typed it on World News Tonight last night, I’m told.

Conservatives Are Mainstream? Senator Kennedy, Is That Really You?


Ted Kennedy on the floor this morning:

What all Americans deserve to know is whether Judge Roberts respects the core values of the Constitution and falls within the conservative mainstream of America along the lines of Justice Sandra Day O’Connor.

Go North, Old Man


Patrick Leahy on the Senate floor this morning:

I look forward to the time when the membership of the United States Supreme Court is more reflective of America as our neighbor, Canada is more reflective of their country.


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