Bench Memos

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Making the Case


Schumer, Specter, and now Boxer, who takes her demand for answers a step further. If Roberts refuses to answer questions of the laundry-list sort Boxer will ask (and some here have endorsed), should he be filibustered or otherwise defeated? It seems a logical response to those who insist on such a process. If there’s no prohibition to answering the questions, as the argument goes, then failing to answer would seem an obstruction of the Senate’s role, no? I also believe Boxer’s reaction underscores Novak’s point about the Left’s approach to this nomination.

I do grow increasingly troubled by the president’s decision not to nominate an originalist with a long record, like the outstanding Michael Luttig. I think it will be more difficult to nominate and confirm such a candidate to a second vacancy. I truly hope I am wrong. Moreover, I am uncomfortable with some of the arguments Republicans senators, Roberts’s handlers, and even some conservatives are making on behalf of Roberts, many of which fall into the category of technical points and process (e.g., his pro bono work in Romer totaled only five hours, etc.). While Roberts may be restrained to speak, we are not. And as a whole, our side doesn’t seem very enthusiastic about explaining the substantive objections to judicial supremacy to the greater public. I dare say that it would have been easier to make the case had a Luttig been nominated.

Re: Counting to Five


I largely agree with Mark’s assessment. I would also not discount another reason for the attacks on Roberts: Groups like PFAW and the Alliance for Justice need a big fight to continue to raise money. One shouldn’t discount the substantial interest that the various interest groups themselves have in a knock-down, drag-out fights over each and every Supreme Court nomination.


Roberts and “Access to Justice”


Walter Olson dissects PFAW’s latest attack on Judge Roberts: that he opposes “access to justice” because he voted to deny legal fees to the Institute for Justice. As Olson notes, Roberts applied settled law in denying IJ’s fee claim. Moreover, if this was such a travesty, why isn’t IJ complaining? Perhaps because this is another manufactured non-issue.

RE: Endangered Roberts


I’d make some qualifications to the Hogberg and Kafkova piece on green opposition to Roberts.

First, it is important to note that many of the environmental objections to Roberts are based on a sloppy interpretation of his Rancho Viejo opinion. Roberts did not so much question whether activity threatening the “hapless toad” could be regulated as he questioned the poor reasoning of the D.C. Circuit’s opinion–reasoning that conflicted with that of other circuits. While I believe there is a basis to question reach of the ESA under the commerce clause, Roberts’s opinion did not directly address the question. I’ve discussed this before on NRO’s Bench Memos (see here and here). Suggesting or implying that the environmental critique is factually accurate (even though misguided) misrepresents Roberts opinion. The simple fact is we do not know his views on the limits of the commerce clause.

Second, I’m not sure about the article’s emphasis on Deep Ecology. For instance, while Deep Ecology folks like the ESA, I’m not sure it’s accurate to say the the ESA is the result of the deep-ecology worldview. Deep Ecology was not yet influential when the ESA was enacted. Moreover, the ESA would not contain exemptions for threats to human life and disease-bearing insects were that the case. More broady, while the Foundation for Deep Ecology is a bad outfit, I don’t think they’re that big a player. One million dollars in grants? That’s nothing. And it’s grants over the last several years to the environmentalist groups are even more paltry. I think it takes more than that to document a link between Deep Ecology and mainstream environmentalists groups. The article is certainly correct that there are many problems with the ESA (including its environmental effects), but I don’t think a purported link to Deep Ecology is the cause.

Re: Counting to Five


But, Mark, what you discuss is not what I’m disputing. Novak says that “Luttig, Jones or Owen going on the court [in place of Rehnquist] would cement a conservative majority.” That’s flatly wrong.

Of course Novak can count to five. But he hasn’t done so here. And his failure to do so is, I think, emblematic of a certain irrational exuberance in some quarters on the right.


Did Pat Leahy Have to Immediately Call NARAL & PFAW & ... to Apologize?



“These outside lobbying groups, whether on the right or the left, have become, for me anyway, basically irrelevant,” Leahy said, adding, “They will probably be offended by that, and I am not saying they shouldn’t do what they do. I just wish they didn’t”

RE: Counting to Five


I don’t take Bob Novak’s piece to mean he can’t count to 5. What he’s saying, which I think has merit, is that Roberts is one of the least offensive “conservatives” the president could have nominated, given his fairly thin record and careful writings. But the attacks on Roberts (from the New York Times hoping to look at sealed adoption records to NARAL’s lies), which are not likely to stop Roberts, are intended to send a message to the White House that if the president nominates a Luttig, who has a 14-year record of sound rulings, worse can be expected. And I don’t think this should be so easily dismissed.

Counting to Five


Bob Novak’s effort to explain the long-term strategy underlying NARAL’s vicious anti-Roberts ad may be correct, but Novak stumbles badly when he asserts that replacing Chief Justice Rehnquist with Michael Luttig, Edith Jones, or Priscilla Owen “would cement a conservative majority.”

Let’s count to five together. For this purpose, I will assume what I think and hope to be true: that Roberts and Luttig/Jones/Owen would be stellar justices. One – Scalia. Two – Thomas. Three – Roberts. Four – Luttig/Jones/Owen. Five — ???

As I have previously explained, Justice Kennedy is the other Justice O’Connor. Indeed, this past year he moved decidedly to her left in major cases. No Court that depends on Kennedy for a fifth vote can be said to have “cement[ed] a conservative majority.”

I do not mean to deny that Kennedy occasionally casts votes that could be classified (in crude political terms) as conservative. But the author of opinions like Roper v. Simmons, Lawrence v. Texas, and Planned Parenthood v. Casey (co-author, more precisely, of the joint opinion in that case) cannot fairly be labeled conservative. The label “moderate conservative” is also inapt–rather like averaging out the highs and lows of a manic depressive and calling him stable.

Realistically, the effort to build a Court that is faithful to the Constitution can be expected to take five to seven years and will require the replacement of Stevens, Kennedy, Souter, Ginsburg, or Breyer. It’s no time now for irrational exuberance.

Lest one feed the scare tactics of the Left, it would also be helpful to make clear that the primary effect of a so-called “conservative majority” would be to leave hotly contested social issues to the political processes for decision, not to entrench a conservative position in the Constitution. No matter what their policy preferences, all Americans who understand what citizenship means should welcome that.

The CNN-NARAL Connection


Accuracy in Media reveals that CNN founder Ted Turner’s connection to NARAL “may explain why” CNN is airing the NARAL television ad that has been roundly denounced by everyone (other than Barbara Boxer) for its false and deliberately misleading content about John Roberts.

AIM says: “The ad, accusing Roberts of endorsing anti-abortion terrorism, is from the group known as NARAL Pro-Choice America, a pro-abortion group. Public information shows that the NARAL Pro-Choice America Foundation received more than $1.4 million in 2003 from Ted Turner’s private foundation. Ted Turner, founder of CNN, is a board member of Time Warner, CNN’s parent company.”

AIM notes that CNN defends the ad as “advocacy advertising” from a “responsible group” that will be “fact checked and debated” on CNN programs.
A few months ago, Judicial Confirmation Network (a “responsible group”) produced an ad on the Democratic filibuster of judicial nominees. CNN’s in-house lawyers questioned and nitpicked the text of JCN’s ad (which was perfectly accurate to begin with, and which ultimately ran as produced on CNN and other cable networks and local broadcast stations). Something tells me that NARAL likely did not face the same critical review.

Ted Turner has not given $1.4 million to JCN.

I think AIM may be onto something.

ABC News, Dem Leaders, and Boxer on NARAL Ad


ABC News reporter Jake Tapper last night said that ABC contacted four “leading abortion-rights groups and the Democratic leaders of the House and Senate today” regarding the outrageous NARAL ad about Judge Roberts. “Not one of them expressed any problem with this misleading ad,” which “accuses Judge Roberts of supporting violent anti-abortion criminals,” according to Tapper’s report.

Tapper noted that the White House released a memo Judge Roberts wrote in 1986 condemning abortion bombers as criminals who should be prosecuted to the full extent of the law.

Tapper interviewed former solicitor general for President Clinton and abortion-rights supporter Walter Dellinger, who agreed the NARAL ad is “not fair” in its characterization of Judge Roberts’ position in the 1991 case at issue.

Meanwhile, Sen. Barbara Boxer spoke at San Francisco’s Golden Gate University, and according to the San Jose Mercury News, she “echoed charges” made in the NARAL ad, stating that “Roberts sided with some of the nation’s most violent anti-choice extremists.”

Democratic leaders in the House and Senate had better reject this NARAL ad and its tactics quickly. For her part, Senator Boxer needs to apologize, rescind her position, and use her influence with her friends over at NARAL to get them to pull the ad.

I Expect Some, But Minimal, Grumbling About This Today


More from that WashTimes piece:

An examination by The Washington Times of documents from that period reveal a memo written on Dec. 14, 1981, to fellow Justice underling and future Clinton impeachment investigator Kenneth W. Starr.

Judge Roberts suggested that the department “keep as low a profile as possible” concerning a book titled “A Blueprint for Judicial Reform” put out by the conservative Free Congress Foundation, an organization founded in 1974 by Paul Weyrich, who remains one of the leading conservative intellectuals.

The liberal-leaning American Bar Association (ABA) had inquired about Mr. Smith’s opinions on some of the ideas in Mr. Weyrich’s book.

Judge Roberts did not paint a flattering portrait of Mr. Weyrich or his ideas, even misspelling the man’s name.

“I suggest we keep as low a profile on this as possible,” Judge Roberts wrote. “Weyerich is of course no friend of ours, but it won’t help to stir up the influential contributors to his volume, and any comment by the AG will simply highlight the fact that we have yet to take a position” on some hot-button issues.

Judge Roberts recommended having a Justice Department spokesman return the ABA’s phone call and “acknowledge that the AG has met with Weyerich and received a copy of his book,” but hasn’t had the time to read it and “therefore cannot comment on its substance.”

Docmented Proof Judge Roberts Is Well-Read



To prepare Mr. Smith for a speech before conservative groups, Judge Roberts said in a Feb. 16, 1982, memo that he reviewed all the issues of National Review, Conservative Digest and Human Events since Mr. Reagan’s inauguration — as well as policy papers put out by the Heritage Foundation “and sundry other tracts.”

Linda Greenhouse on NARAL Ad


In the New York Times piece on the NARAL ad today, it takes Linda Greenhouse until the eleventh paragraph to use the F-word– says it is “false.” I humbly suggest that’s more top material.

The Gray Lady also, by the way, conveniently provides the video of the commerical on their homepage as a news video item.

Roberts on the Role of Judges — Judicial Independence


According to this report, Justice Breyer told an ABA audience yesterday that “rulings on difficult subjects like gay rights and the death penalty have left courts vulnerable to political attacks that are threatening judicial independence.” (That’s the language of the article, not a direct quote from Breyer.)

A very different and much wiser understanding of the real threat to judicial independence was provided to the ABA in 1982, in an ABA Journal essay that John Roberts drafted for Attorney General William French Smith: “The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and the bounds of their expertise by engaging in policy making committed to the elected branches or the states.”

The whole question of “judicial independence” requires, of course, an answer to the question “independent of what?” Breyer and five of his colleagues seem to think that Supreme Court justices are independent of the Constitution and of the obligation to construe it in a legitimate and principled way. For them, judicial independence means unfettered judicial supremacy.

A proper understanding, I think, is that judges should be independent of interference (political or otherwise) in deciding how to apply the law in particular cases. That does not mean that courts are not obligated to apply the law—even legislation enacted to affect a single ongoing case (see the Supreme Court’s unanimous 1992 opinion in Robertson v. Seattle Audubon Society). Nor, of course, does it mean that they should be immune from vigorous criticism. In Chief Justice Stone’s words (as quoted in AG Smith’s essay): “I have no patience with the complaint that criticism of judicial action involves any lack of respect for the courts. When the courts deal, as ours do, with great public questions, the only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their action and fearless comment upon it.”



CNN is still running the bogus NARAL ad. During The Situation Room a little while ago Wolf Blitzer lamely defending their decision and added that Fox is running the ads too.

Nope on the Fox thing. A Fox spokesman tells NRO’s Media Blog: “[NARAL] actually never approached us for a buy. You’ll see a correction in the Washington Post tomorrow.”

Messing with Moses!


From James Lakely on the Washington Times blog:

Mr. Roberts was involved in devising a strategy to blow off inappropriate inquiries from a persistent Charlton Heston.

Mr. Heston wrote to Mr. Smith on Aug. 9, 1982, to bring to his attention a “miscarriage of justice” inflicted on the son of a long-time friend and high-ranking official in the Indian government. Adil Shahryar, who was in his 20s, was convicted of attempting to set fire to a Sheraton Hotel in the South Beach section of Miami and attempting to place a box with two bombs inside on a cargo ship. In what Mr. Roberts described as a complicated but “airtight” case, Shahryar was sentenced to 35 years in federal prison.

The star of “Planet of the Apes” and “The Ten Commandments” told Mr. Smith that “Adil himself has been a guest in our home, and we always thought of him as a fine boy.” Though Mr. Heston noted that he could not make any judgment on Shahryar’s guilt or innocence, he argued that the punishment seemed “remarkably harsh.” And while he regretted putting his friend, Attorney General Smith, in an awkward situation, Mr. Heston played the Reagan assassination card:

“Lydia and I happened to be in Delhi on the day Hinckley was declared innocent,” Mr. Heston wrote. “An Indian official remarked to us that we Americans had a strange country, where a man could shoot the president and get off scot-free, while another could launch a failed fraud and get thirty-five years. I had no answer for him.”

Well, Mr. Roberts suggested an answer for his boss: stay out of it. Mr. Roberts penned a reply for Mr. Smith’s signature dated Aug. 27, 1982, telling Mr. Heston that “we must rely on the American criminal justice system” and that as attorney general, Mr. Smith believes “it is the best system I know of for vindicating the innocent.”

Schumer Turns On You & Uses You Simultaneously


A new release: “I am disappointed that Senator Specter is supporting the Administration’s ill-advised refusal to turn over key documents written by Judge Roberts. It will make it all the more important for Judge Roberts to answer in a forthright manner the kinds of questions that Senator Specter and I have posed.”

Roberts on the Role of Judges


It would be tempting just to play defense on the Roberts nomination, and the slew of distortions from the Left would keep one fully occupied. But the affirmative case for Judge Roberts needs to be made over and over, especially since the spotlight on the confirmation process provides a valuable opportunity to try to inform the public understanding of the proper role of the courts.

Roberts’s executive-branch documents show that he has a deep and longstanding appreciation of the proper role of judges in the American constitutional republic. I hope to use a series of posts to highlight his understanding.

Let me begin with Roberts’s rejection of the prevailing liberal myth, claimed to have been established by Marbury v. Madison, that the Supreme Court is, as asserted in 1958 in Cooper v. Aaron, “supreme in the exposition of the law of the Constitution.” Roberts addressed and refuted this myth in his lengthy memorandum making the case for Congress’s power to remove certain classes of cases from the Supreme Court’s jurisdiction:

“It is argued, however, that divesting the Supreme Court of jurisdiction over a particular class of cases would undermine the constitutional role of the Court as the ultimate arbiter of constitutional questions. The Cons[t]itution, however, does not accord such a role to the Court. The authority of the Court to interpret the Constitution derives from the necessity of its doing so in the course of discharging its judicial responsibility to decide those cases and controversies properly presented to it. [Lengthy quotation from Marbury.] If the necessity of interpreting the Constitution is removed, as it would be if the Court were divested of jurisdiction, the basis for the Court’s role as final arbiter of the Constitution is removed.”
It is of course true that Roberts’s memorandum expressly states that it “is prepared from a standpoint of advocacy of congressional power over the Supreme Court’s appellate jurisdiction” and “does not purport to be an objective review of the issue.” But Roberts’s explanation of the Court’s actual role is so clearly correct (and so contrary to conventional wisdom) that it is difficult to imagine that he does not embrace it.

To be sure, the Supreme Court will have the final word in cases that it decides, and in a properly functioning system its judgments and opinions will deserve considerable respect. Moreover, the Supreme Court, as a body, is far more able than the president or Congress to offer coherent and principled analyses of the Constitution (though it obviously does not always display that ability). So what difference does it make, outside the context of legislation to divest the Court of jurisdiction, that the Constitution does not make the Court “supreme” over the other branches in interpreting the Constitution?

I think it makes a great deal of difference. First, the mistaken view that the Supreme Court is the ultimate expositor of the Constitution readily degenerates, in the minds of the justices, to the practical proposition that the Constitution means whatever they say it means. That is a license for lawlessness, a license that the Court has freely exercised in recent years. For example, the insipid New Age assertion (embraced by six current justices, in Planned Parenthood v. Casey or Lawrence v. Texas) that “[a] t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” really means that the Court is claiming the unconstrained power to define for all Americans which particular interests it thinks should be beyond the bounds of citizens to address through legislation.

Second and relatedly, the recognition that the Court is not supreme over the other branches leads readily to the recognition that the Court itself is bound by the Constitution and that erroneous decisions it renders on constitutional questions are themselves unconstitutional acts. This recognition has healthy consequences for how a justice approaches the question of overturning wrong precedent.

By the way, expect the same senators who object to the Court’s supposed failure (in Senator Specter’s words) to “respect Congress’s constitutional role” in enacting legislation to be the strongest to criticize Roberts for respecting Congress’s constitutional role in interpreting the Constitution.

Balancing Test


Keith Whittington’s article shows that all this “balance” talk is a lot of baloney. He relies in part on several telling examples: Should LBJ have appointed a reactionary to an already liberal Court, instead of Thurgood Marshall? How about FDR? When the conservative “four horsemen”
(McReynolds & Co.) began retiring, should he have sought like-minded replacements to maintain “balance”? Here’s one Keith did not use: Should Lincoln have sought to keep the Court delicately divided between those who thought that Dred Scott was rightly decided–and those who didn’t?

At this rate it will not be long before John Roberts’ intelligence is used against him. Which Democratic senator will follow in the shallow footsteps of Roman Hruska (R., Neb.), who famously proposed affirmative action for mediocre people in judicial appointments?

Keith’s article suggests one thing about the Democrats’ position which is not simply sausage. Do not the calls for “centrist,” “mainstream,” and “moderate” views in a nominee–all to “balance” the Court–imply that, to constitutional questions at last, there are no right answers? (By
“right” here I mean “correct.”) According to this middling logic, you can
get too much of a good thing. By the “balancer’s” logic, even if Stevens (or Scalia) were right about the Constituion, we would not want nine Stevens (or Scalias). “Balance” implies a roughly equal number of people with irreconcilable views. Irreconcilable views can’t all be right.

A senator who looks at confirmation this way holds that neither Ginsburg nor Scalia nor Thomas nor Stevens is “right” about (you pick it) church-state, abortion, or federalism. Their positions are not interesting to the senator as possibly correct answers to constitutional questions. Their views are instead just so much data for the Senator to churn, churn, churn. His task is is not to decide if John Roberts is right (that is, correct) about anything. It is rather to figure out whether his particular point of view–whatever it is, right or wrong but so long as (I guess) it is in the “mainstream”–is proportionally represented on the Court.

Keith quotes Senator Schumer as saying that an “excellent” Court would have one Brennan and one Scalia. Well, an interesting Court, maybe. But Brennan and Scalia were not both right about the issues that count. They disagreed across the board: One had to be wrong. (Of course, both could be.) Assuming, then, that Senator Schumer favors an “excellent” Court, he invites us to believe that he would confirm someone whose views on all the issues that count were grossly mistaken. Senator Schumer wants us to believe he would and that other Senators should vote to confirm, say, Robert Bork or Edith Jones or Matt Franck to the Supreme Court to fill the seat of a departing conservative. (All are good ideas, by the way.)

Schumer seems to be thinking of constitutional law as an extension of ordinary politics, laden perhaps with a peculiar rhetoric but with no intrinsic normative criteria different from those of public decisionmaking generally. In his view, what the courts do stands to the Senate as perhaps the Senate stands to the House. A bit upmarket, but no different in kind.

But, if this really is his view, Schumer’s conclusion makes no sense at all–unless we are to believe that Schumer would recommend to the voters of Pennsylvania, for instance, that they return Rick Santorum to the Senate in 2006. An “excellent” Senate would, after all, have one Santorum and one

Re: More Biased Reporting from the Washington Post?


A well-connected source whose judgment I trust (and who is a strong supporter of the administration) tells me that I’m wrong to think that Washington Post reporter Jo Becker might be responsible for the bias in recent Post articles:

Based on some past experiences, I think Jo Becker’s a solid reporter, and that the WPOST’s team on the Roberts’ nomination is not generally in the pocket of the Left. (I wouldn’t say the same thing about the New York Times team.) Consider the possibility that the source of bias in the WPOST articles you mentioned may actually be a function of the different early pr strategies employed by the Left and the Administration. The Left’s primary background briefers are lawyers who are prepared to delve deeply into the substance of ‘controversial’ memos. The Administration’s in-house team has been composed primarily of politicos and communicators who are great at what they do, but can’t be expected to know the nuances of the law and why they matter. Reporters don’t know the substance in depth either, and have therefore defaulted to the Left’s seemingly objective and unchallenged analysis of the hard legal issues. I suspect the Administration realizes this now and is making adjustments to its own team.
If my source’s very disturbing hypothesis is correct (and I now have reason to think it is), I offer my sincere apologies to Jo Becker–and to the other Post reporters whose articles I’ve sharply criticized. (I’m not going to concede that reporters can’t be held accountable for any of the distortions that I’ve identified, but this account would put thing in a very different light.) I also wish the administration luck in its urgent task of making the appropriate adjustments.


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